The Atlanta Journal-Constitution
Use of limited immunity in spotlight
Opposing players give statements about Ole Miss.
Mississippi State football players Leo Lewis and Kobe Jones have, according to court documents, told the NCAA they received free merchandise from a clothing store while on recruiting trips to Ole Miss, something that would violate NCAA rules.
They did so after being granted limited immunity by the NCAA, which protects them from being declared ineligible for wrongdoing as long as they told the truth.
Ole Miss officials vehemently dispute the claims that have been used as part of a major infractions case against the Rebels’ football program. So does Oxford, Mississippi, clothing store Rebel Rags, which has filed a lawsuit against the players, alleging they gave false statements to the NCAA.
The use of limited immunity is somewhat uncommon in NCAA enforcement cases, but it is an option available to investigators who have no subpoena power to pursue information. They avoid using words such as witness and testimony, which have meanings in a court of law that are not applicable in an NCAA case — just one example of why the use of limited immunity has a host of critics.
“If there were due-process safeguards that were built into the system, I might feel different,” said Donald Jackson, a Birmingham, Alabama, attorney who regularly represents athletes and coaches in NCAA infractions cases. “There are no due-process safeguards built into this system.”
Charles Merkel, an attorney for Rebel Rags, added: “I would characterize it probably as far away from the American justice system as possible.”
Ole Miss is facing 21 allegations in its NCAA case that will be heard Monday in Covington, Ky. School officials have conceded some of the allegations of improper benefits and recruiting inducements came from members of its football staff and boosters
to players.
If the lawsuit by Rebel Rags plays out, Lewis and Jones could eventually face the type of cross-examination under oath that doesn’t happen during the NCAA’s process. A Sept. 25 motions hearing is planned in north Mississippi.
Limited immunity has been used by NCAA enforcement for at least 20 years, and NCAA vice president of enforcement Jon Duncan estimates it has been used
in about 20 percent of cases over the last two. Duncan’s predecessor, Julie Roe Lach, says during her nearly three years as VP and the seven years before that in which she led a team of investigators there was never a directive to use limited immunity more or less.
Lach, who is now deputy commissioner of the Horizon League and an attorney handling NCAA cases for Indianapolis firm Church, Church, Hittle and Antrim, said she understands the concerns about enforcement staff using limited immunity.
“They really are just honestly trying to uncover the facts and this is just one of the many tools in the tool box, particularly because they don’t have subpoena power. So they’ve got to figure out what’s the ethical, appropriate way to get information that they think is credible and figure out what that means,” she said.
The NCAA does not make public statements about ongoing investigations, but Duncan earlier this summer spoke broadly with the AP about how limited immunity is granted and used in infractions case.
“A lot of people think that it’s just a tool we keep sort of behind the curtain. It’s not,” Duncan told the AP in a phone interview. “It’s codified in the manual and has been.”
Enforcement staff can request granting limited immunity to a person it deems to have essential information to an investigation, and the chair of the committee on infractions either grants or denies the request.
He also said enforcement staff is more likely to request limited immunity for a college athlete or prospective college athlete than for someone who is not.
“We’re not interested in the infractions process in penalizing student-athletes for what are largely behaviors of adults,” Duncan said.
“We really are not interested in having an infractions matter yield eligibility penalties for kids. We do request immunity much more sparingly when we are talking about an adult. By adult, I mean a coach or assistant coach, operations staff member of some kind. It doesn’t mean we won’t use it or request it for adults. We have. The most recent example was Southern Miss. That’s the exception rather than the rule.”
Jackson represented former Southern Mississippi basketball coach Donnie Tyndall in that case. Tyndall received a 10-year show cause order from the NCAA committee on infractions for orchestrating academic fraud and covering up payments to athletes.