In a story Sept. 4, The Associated Press reported erroneously that Mississippi State football player Kobe Jones had received limited immunity in exchange for his testimony to the NCAA. His attorney says he was not granted limited immunity.
A corrected version of the story is below:
NCAA use of limited immunity in the spotlight at Ole Miss
NCAA use of limited immunity in the spotlight at Ole Miss
By DAVID BRANDT and RALPH D. RUSSO
AP Sports Writers
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.
Lewis spoke after being granted limited immunity by the NCAA, which protects him from being declared ineligible for wrongdoing as long as he told the truth. Jones’ attorney, Chris Shapley, says that his client was not offered limited immunity, though he did answer questions from the NCAA “as accurately as he could.”
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 on Sept. 11 in Covington, Kentucky. 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 often 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 of denies the request.
“We don’t pass it out like candy,” Duncan said.
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.
Jackson said statements made by Southern Miss assistant coach Adam Howard, who himself was alleged to have committed multiple violations, after being granted limited immunity contradicted his previous statements and the statements of others. Jackson said the party accused of violations doesn’t know limited immunity was granted until the NCAA issues a notice of allegations.
“The problem is at the point you’re focused on trying to prepare response to thousands, maybe tens of thousands of pages of documentation that you’ve never seen before,” Jackson said.
Duncan said granting limited immunity is not the equivalent of making a plea deal with a witness in a criminal investigation. NCAA enforcement’s mission is fact-finding, not building cases against schools, Duncan said.
“We don’t know what they’re going to say until they say it in the middle of an interview,” Duncan said.
Statements made by an individual granted limited immunity are still subject to “layers, upon layers, upon layers of fact-checking” by the enforcement staff, Duncan said.
“We are mindful that there are people out there that want to advance their own interest and try to use the infractions process as a vehicle for doing that,” Duncan said.
Ultimately, it falls on the committee on infractions, a representative body of NCAA membership that is directed by rules set in place by membership, to determine whether the information provided under limited immunity is credible and relevant.
“We’re very candid with the committee. Here’s what we’ve heard. Here’s what we think is credible and what we think is less credible,” Duncan said.
David Ridpath, a professor of sports administration at Ohio University and former compliance official at Marshall and Weber State, said the NCAA investigation process has improved and become more transparent. He agrees that limited immunity can be a valuable investigative tool.
But, Ridpath said, “I wholeheartedly agree that it’s very difficult to justify using limited immunity when you’re not providing basic due-process protections in this system.”
Brandt reported from Jackson, Mississippi; Russo reported from New York.