A tape recorder was out. Forms allowing investigators access to bank records, phone records, family records, girlfriends and so on were signed. Refuse and you ran the risk of losing the one thing that mattered most—your eligibility.
“I grew up in the Jim Crow South,” said James. “There is nothing you can throw at me I haven’t heard. This process is sheer terror for the athletes. I was just so frustrated I couldn’t do anything.”
Under the NCAA’s system of justice there is no discovery, no legal obligation to share any information. It’s a one-way street. In this case, one built around hours of questions to eighteen- to twenty-year-old kids pressed to remember specific times and dates one or two years earlier. The object for NCAA investigators: to uncover “inconsistencies” in testimony. Trapdoors—and sometimes trap questions—that, over the years, have tripped up countless athletes and universities trying to cover up the truth. Here is an example of a typical “inconsistency” exchange between NCAA investigator Chance Miller and OSU running back Daniel Herron.
MILLER: During that summer how many days would you work at the car wash?
HERRON: Three days. Three to four days. We had about a full week off, so I [and another player worked] as much as I could.
MILLER: So, you said three or four days?
HERRON: Uh-huh.
MILLER: And how long each day would you work there?
HERRON: A couple of hours.
MILLER: When you say a couple of hours, could you be more specific? Like what time would you arrive?
HERRON: I go around 9:00 and leave around 2:00 or 3:00.
MILLER: Would you have any breaks in between 9:00 to 2:00?
HERRON: I would grab something to eat, that’s pretty much it.
MILLER: Were you given like an hour or thirty-minute lunch break?
HERRON: I would just tell the guy I was going to grab something to eat real quick and I’ll be right back. There was a Burger King right across the street, I just run over there real quick, grab something and come right back.
MILLER: And did you keep track of your hours that you worked?
HERRON: I really, myself, I didn’t—this guy did.
MILLER: You guess the guy at the car wash kept track of them.
HERRON: Yeah, yeah. I got there, I told [them] I was leaving, and he wrote everything down.
“Let’s assume they’ve interviewed you one time, two times, three times, four times,” said James. “Some of these kids were interviewed four times. They say, ‘Okay, what did you do on February 8, 2010? Did you go to work that day? Well, we have here you went to work. What time did you leave Columbus?’ ‘I don’t know, eight or nine.’
“One kid said I worked two hours, another said four hours, another, six hours. Two of the kids worked side by side; they say they don’t remember. And they [the NCAA] get pissed. And [with] the egos and they [the kids] want to reach across the table and beat the crap out of them. Not just because ‘I don’t believe you.’ It’s ‘I think you’re lying.’ ‘Look, you’ve got one chance if you want to play.’ ”
What really upset James was this kind of cheap gamesmanship—the shell game NCAA investigators tend to play. Before he left for the USA Track & Field finals in Eugene, Oregon, James said he wrote a letter notifying the NCAA he would be out of town for a few days. He asked that his clients, several of whom he had yet to interview, be left alone during this brief period. Just as he was boarding the plane out west, James said he received a call from Miller. Interviews with Melvin Fellows and Marcus Hall were set for 9:00 a.m. the next day.
You can’t do that, said James.
We’re doing it, said Miller.
“I hadn’t talked to either one of these kids. I couldn’t get to them,” said James. “So I got on the phone, the three-hour time difference, and they’re the ones who started the inconsistencies because they were upset.”
James repeatedly argued the players never knew their precise hourly wage or filled out time cards. They were performing yard work and hauling material and washing cars. They had no reason to believe their wages were being miscalculated or overpaid. In short, they were doing what thousands of athletes have done before—do the work, take the money and don’t ask a lot of questions.
In the end this is what the NCAA alleged were the “overpayment” violations:
Melvin Fellows—63 hours worked at $15 per hour, 19.5 not worked, overpayment of $292.50.
Marcus Hall—51 hours worked, 15.5 not worked, overpayment of $232.50.
Daniel Herron—84.5 hours worked, 19.5 not worked, overpayment of $292.50.
DeVier Posey—21.5 hours worked, 48.5 hours not worked, overpayment of $727.50.
For Fellows and Hall, the NCAA said, the overpayment charges were based on “inconsistencies between the student-athletes” and figures in a letter DiGeronimo’s company had sent to James.
As for Herron and Posey: “The staff and institution analyzed cell phone records to determine the dates and times [student-athletes] were not at the employment site and compared that information to the hours provided in DiGeronimo’s letter to estimate the number of hours the student-athletes likely worked each day.”
It’s important to note that in the space of two paragraphs outlining its charges against the four football players, the NCAA used the word “estimate(s)” twice, along with “likely,” “around” and “near.”
James didn’t need a map to know where this road ended. So, quietly, he reached out to DiGeronimo through Posey’s mother. For his own reasons DiGeronimo didn’t trust the NCAA. After initially saying yes to an interview, he refused to cooperate. But he told James he’d have someone go back through the books. In addition, James had his people pull bank records and research cell tower technology.
The final week of September, James sent Miller and Ohio State’s director of compliance, Doug Archie, at least three long memorandums filled with new information outlined in painstaking detail: time cards had been found with specific hours, jobs, days and locations worked. As it turned out, even as a casual hire Posey had qualified for union wages and payment for drive time on certain days because he was working on a union job site. James also produced bank records showing Posey in the area of Independence, Ohio, the location of DiGeronimo’s construction company, on the times and days Posey said he was working.
Finally, in a truly inspired bit of legal legwork, an associate at the law firm went online and checked the Federal Communications Commission (FCC) Web site. The NCAA had said only calls “originating” in Independence, Ohio, were considered to support Posey’s hours.
On the FCC Web site the James gang discovered there were approximately 250 active cell phone towers and antennas within a ten-mile radius of Independence Excavating and Valley Laser Car Wash, Posey’s two places of employment, located about a mile from each other. According to an FCC map, there were cell towers or antennas within the same ten-mile radius in five neighboring communities and ten additional Verizon towers and antennas nearby in Cleveland.
In September 30 and October 5 memos to Miller and Archie, James laid out his cell phone/tower evidence: he noted a Verizon customer service representative had said while customers are generally connected through a tower or antenna owned by Verizon, if the closest tower is experiencing high volume or traffic, the call will be routed through a different phone tower or antenna leased by Verizon.
Bottom line, the customer’s “origination” entry in phone records may read two different locations within minutes, even though the customer is standing in the exact same spot. In other words, James said, Posey could have placed a call from Independence Excavating, and the call was transmitted through a cell tower indicating Cleveland, Garfield Heights, Bedford, Parma or other nearby neighborhoods.
To make his point, James provided cell records from a forty-seven-minute period between 9:19 and 10:06 a.m. on March 23, 2011. According to those records, Posey’s “origination” entry bounced from Independence to Cleveland three times and, in
one four-minute period between 9:40 and 9:44 a.m., from Cleveland to Independence.
“The current interpretation of Mr. Posey’s cell phone records has wholly failed to take undisputed facts into account,” James wrote to Miller and Archie.
The union wages. The cell phone explanation. Posey was innocent, James said. In fact, he had been overpaid not by $727.50 but by just $3.07.
Three dollars and seven cents. Total.
In the memo to Miller and Archie, James wrote, “The preponderance of evidence in support of Mr. Posey is difficult to refute. One would have to turn a deaf ear and a blind eye to reject the compelling evidence as presented.”
Which was exactly what, James said, Ohio State and the NCAA did.
“At the end of the day it didn’t matter,” he said. “They ignored it all. After we had done everything to prove, to establish, to verify and check the hours, they said no. You’re just like, ‘Wow.’
“They decided they just weren’t going to believe anything ’cause of the inconsistency of the testimony and the inability to talk to anybody from Independence [Excavating] irrespective of the documentation.”
In October 2011, Herron, Hall and Fellows received a one-game suspension. Posey was slapped with five. Five more games on top of the five he had just served for the memorabilia scam. His entire senior season was suddenly reduced to two games.
“Posey’s withholding condition is based on his own actions and responsibility for the violation,” said the NCAA spokeswoman Stacey Osburn at the time.
“I’m sick about it,” James told the Columbus Dispatch after the second five-game suspension. “I have lost so much sleep over this, because I’ve never had something that has been so with me and so troubling, because there just aren’t any rules when it comes to due process and the NCAA.”
Seven months later in the dead quiet of a conference room James was still chewed up. It’s as if the NCAA punished Posey for fighting back, he said. Sending a message to others, as it has so many times in the past: Buck the system and you will pay a price.
In the end, James was so jaded—so suspicious of the system—he wasn’t even sure all his memos found their way to the NCAA. He cited an October 11 memo to OSU’s Archie breaking down all of Posey’s hours in support of the $3.07 figure.
“They were calling me a liar, and I was calling them [the NCAA] a liar. On the appeal, the appeal review can only review what Ohio State submitted. The NCAA appeals only got what Ohio State wanted to submit. They couldn’t consider anything else.”
Crabbe, Brown & James was paid in excess of $142,000 to defend Ohio State and its student-athletes. Money, it was easy to see—at least on this day—meant little or nothing to James. He took the case because he believed he would win. And like that athlete in the photograph by his office door, he sweated, head down, on a personal crusade to beat the system. But for all his dedication, this time the picture was of defeat.
“It’s a nightmare. That simple,” James said quietly. “In every way you can imagine.”
Gene Smith’s date with the NCAA began at 11:36 a.m. eastern standard time on October 14, 2011. Again it was investigators Chance Miller and Tim Nevius asking the questions. To begin, Smith was asked to provide a brief bio. He said he had officially started at Ohio State on Tax Day, April 15, 2005, after serving as athletic director at Arizona State. At Ohio State he supervised the nation’s largest intercollegiate athletic program—thirty-six sports involving more than a thousand student-athletes. A former defensive end at Notre Dame in the 1970s, Smith was the first African-American president of the national association of athletic directors and a member of several elite NCAA committees.
Smith told the NCAA he first heard Bobby DiGeronimo’s name about six months into the new job, in the fall of 2005. Normally, in his first year he “didn’t make many decisions.” He preferred to keep his “ear to the ground” and “eyes open” and learn. The rumbles on DiGeronimo, as far as he could tell, were that head coach Jim Tressel had started to clean up a pregame locker room crowded with friends of the program and that DiGeronimo was one of those swept out.
“There were a lot of hangers-on during the previous coach’s time frame,” said Smith. “Jim was trying to clean that up.”
So was Smith.
“My mantra was and my style was to deal with those people head-on in a conversation eye to eye, and say, ‘Hey, look, I mean, you’re a booster, you get the rules, read the rules, stay away from our program.’ ”
DiGeronimo had been a loyal supporter of OSU athletics for more than thirty years. Seven of his eight children had attended Ohio State. Over the years he and his family had donated about $100,000 to the athletic department. He was a self-made millionaire many times over and either owned or had access, through his family, to twenty-four season tickets.
To his many admirers Bobby D. was a man of uncommon good. The kind of guy who handed a bag of chocolate-covered almonds to his favorite restaurant hostess as a way of saying thanks, who slipped the valet guy $20 for parking his Escalade twenty feet away and who said “God bless” at the end of almost every call and text. The kind of guy who regularly drove down to Columbus to drop off pizza and pasta for the basketball and football coaches working insane hours and gummy bears for players in need of a sugary fix.
DiGeronimo’s friendship with OSU football and basketball coaches ran as far back as Earle Bruce and Eldon Miller, but he really drew close to the program during the thirteen seasons (1988–2000) John Cooper was the head football coach. He and Cooper became the best of friends. Cooper allowed Bobby D. to watch practice and games from the field and to hear his pregame speeches in the locker room before games. Once a year Cooper invited him to travel on the road with the team.
DiGeronimo enjoyed a similar relationship with Ted Ginn Sr., the highly respected high school football and track coach at Glenville High in Cleveland and founder of the prestigious Ginn Academy for high school boys. Ginn is the father of former OSU star Ted Ginn Jr. With Ginn Sr.’s help Bobby D. had reached out to Buckeye quarterback Troy Smith in 2006 and invited him to attend the upcoming Cornerstone of Hope gala. The charity had been co-founded shortly after DiGeronimo’s three-year-old grandson, Bobby, had suddenly died of bacterial meningitis in 2000. Smith knew Bobby and agreed to come and brought a number of his teammates with him. When Ohio State found out the players had appeared at the gala without permission from the school, it filed a self-report with the NCAA that resulted in a minor secondary violation.
On April 20, 2006, Ohio State compliance director Heather Lyke wrote an e-mail to Gene Smith detailing five compliance issues she wanted the athletic director to discuss with DiGeronimo. In short, they were:
1. tickets—may not request or receive complimentary tickets from our student-athletes for any reason;
2. employment of student-athletes—make sure student-athlete registers with compliance office and he completes and returns all monitoring documents;
3. occasional meals—may not have occasional meals with our student-athletes;
4. fraternizing with our student-athletes—“Bobby’s attempt to develop close personal relationships with our student-athletes is concerning”;
5. probation—the fact we are on probation should elevate our concerns.
After discussing the memo with Lyke in his office, Smith told the NCAA he immediately called DiGeronimo.
“So I called him right there on the spot,” Smith said. “He wasn’t there. Left a message. And I told Heather, well, I’ll just go up there and see him, ’cause I go to Cleveland quite a bit. And I went up, did not get a chance to go see him. I came back. He actually had returned my call. I called him back. And we talked. And I shared with him that, you know, I understand you have a, a habit of delivering pizzas to our football, basketball staff. You can no longer do that. You have to discontinue that practice. I understand you have some relationship with our student-athletes periodically. You have to discontinue any contact with our student-athletes. And I s
aid, ‘Bobby, you’re a booster. Every year, you get booster education. You need to pay attention to these materials and follow the guidelines.’ And I was very firm with my message. And he said, ‘I understand.’ And we ended up having chitchat about Cleveland after that. And so the conversation kind of shifted. And I really didn’t hear his name again until our case.”
At this point Miller asked Smith if that conversation took place before or after he received Lyke’s e-mail. A pretty simple question involving time and place, much like the questions asked of the Ohio State football players caught up in the scandal.
“I can’t remember, Chance,” he said. “I can’t remember the sequence.”
During the course of a forty-nine-minute interview Smith would say the words “I can’t remember,” “I don’t remember,” “I don’t recall” or “I can’t recall” no fewer than twenty times.
Then, in the case of that first phone call to Bobby D., Smith said, wait, he could remember when he called. Sort of.
“But I did get an e-mail from her that had messages. In fact, she brought it, it had to be before because she brought it with, with her to the meeting ’cause she gave me a document, and I believe it was the document that had, I don’t know, five or six things she wanted me to share with him. And, and I did not share those exact things with him.”
That’s because Smith said he didn’t have Lyke’s e-mail “in front of me.”
“I was going from memory,” he said.
Smith admitted he never specifically mentioned any of Lyke’s bullet points to DiGeronimo—tickets, student-athlete employment, the occasional meals, the gala, the fraternizing, probation. Not one.
Still, he recalled, he was “very firm.” His tone and demeanor were “pretty strong.”
“I said, ‘You need to stay away from our student-athletes and not engage with our student-athletes.’ ”
The System: The Glory and Scandal of Big-Time College Football Page 28