Standard of proof in Manziel case? Lower than you might think
Texas A&M faces key decision if their Heisman-winning quarterback isn't cleared by the start of the season.
We weren’t going to convict an NCAA institution to the fiery depths of probation hell. Not that easily. Not without the proper evidence.
That was a conclusion among my small media group two years ago during the NCAA’s "Enforcement Experience." Various media had been invited to Indianapolis for an inside look at the investigative process that is so secretive, maddening and frustrating. But in this one shining moment, the NCAA was opening its books -- at least opening the process for a closer look.
What in the name of Jim Darnell does this have to do with Johnny Manziel? Plenty, as the season quickly approaches. If the investigation continues to drag on toward opening day on Aug. 31, Texas A&M will be facing an excruciating decision whether to play the defending Heisman Trophy winner.
Play him and A&M faces the possibility of having to vacate every win Manziel plays in. Sit him -- with the anticipation Johnny Football might be guilty -- and Mr. Darnell -- the Manziel family attorney -- could have an injunction or two to throw the NCAA’s way.
For now, proof floats in the air like a Johnny Football fade pass to the corner of the end zone.
Two years ago in Indianapolis my little media pod of five considered the facts in a fake case that was eerily similar. Players at State U. were provided with the answers to a test by a coach who had received them through a tutor. One problem: We didn’t have the answer key, the smoking gun that would have made it easy to convict. All we had was hearsay, testimony without the marked-up answer key.
We decided to go ahead with the case anyway by a vote of 3-2, handing it to the fake infractions committee for judgment. State U. -- fake school for fake case – was eventually hit by the fake infractions committee with three years' probation, the loss of 10 scholarships total over two years, two years of vacated wins and a two-year postseason ban. Remember, with no paper trail on the academic fraud charge.
What’s this leading to? There's a way to convict Johnny Manziel. Actually, it's fairly easy. The concept has been used before -- many times by the NCAA. It's written down as the foundation of the NCAA investigative experience. It’s called the standard of proof.
"Standard of proof" means evidence does not have to rise to the level of a courtroom -- "beyond a reasonable doubt." It merely means, according to the NCAA, "whether the information is credible, persuasive and of a nature that reasonable people would rely upon in the conduct of serious affairs."
Summing up: A wise man who once worked for the NCAA told me, "The NCAA could convict a ham sandwich if it wanted to."
It might be time to hide the wheat bread and mustard in College Station.
Former Big 12 commissioner and NCAA investigator Dan Beebe described "standard of proof" this way: "It’s a reasonable person’s standard. It’s not beyond a reasonable doubt. Reasonable people could differ."
That's assuming there is a load of reasonable people anywhere in this case.
Without a paper trail, can Manziel be convicted of taking money for autographs? You bet. First, let’s remember no matter what happens there probably won’t be a paper trail. The autograph "industry" isn’t known for its bookkeeping. Figure that any exchange of money would probably be undocumented cash. The NCAA will ask Manziel for his bank records. Unless they see, say, a $7,500 cash deposit they aren't going to get much.
All it would take is for a couple of sources to roll on Manziel. So far, none that we know of have come forward. We do have a lengthy description of how the quarterback loathed signing autographs. Then, ESPN.com reported that Manziel accepted cash for signing. At one point he allegedly signed 4,400 autographs.
If I'm an NCAA investigator that’s my first question: Did you really sign that many times? If so, why?
Then I decide if circumstantial evidence is going to hold up -- because it has before.
Former USC quarterback Todd McNair is currently fighting for his career in a lawsuit against the NCAA. It wasn’t the first time enforcement relied on a convicted felon to make its case.
If that's the standard, the NCAA is going to view a couple of willing autograph dealers like royalty. At least in the credibility department.
"The reality is ... some of the issues that we're investigating involved people that don't have a pristine record, that are in a different world than most of us," former NCAA vice president for enforcement Julie Roe Lach told us two years ago.
Yes, at least the NCAA had someone cooperating in the USC case -- allegedly a very bad someone, would-be marketing agent Lloyd Lake. In this case, the NCAA would have to have those sources come forward to really make this juicy.
As it stands now, there are three likely outcomes:
Nothing to see here: The NCAA finds no credible evidence and clears Manziel. At least in the short term, there would be an outcry of whitewash from some doubters. The NCAA is working to substantiate media reports that the defending Heisman Trophy winner took money for his signature. Is four weeks enough to substantiate those media reports? Manziel has a powerful lawyer and plays in a powerful conference.
Unethical conduct: If Manziel took money, he also most likely signed a document that all players are given at the beginning of camp. That NCAA document asks players if they are aware of any NCAA violations? If Manziel checked "no" and is charged with breaking NCAA rules, then he’s got a further problem -- misleading the NCAA.
If that’s found to be the case, he’s might be done for the season. In 2009, Oklahoma State’s Dez Bryant was found to be lying to the NCAA when asked if he been at the house of Deion Sanders. Bryant was gone for the season.
Suspension: If the case isn’t resolved by kickoff, the school would have to decide whether to declare Manziel ineligible, then apply later for reinstatement.
If Johnny Football cops to taking money or the NCAA discovers that he took money, he could be back on the field at some point by paying restitution. There’s a loose NCAA guideline that mandates a player sit out 30 percent of games if he accepts more than $1,000 improperly. (See: A.J. Green in 2010.)
It’s really an unknown how the NCAA would look upon receiving $7,500 or five figures.
"There’s no constitutional right you have to play intercollegiate athletics," Beebe said.
As mentioned, A&M's biggest decision is whether to play Manziel if the case isn’t resolved by the time the season starts. The season could go pffft if A&M’s wins are vacated. Devil’s advocates would argue, what’s the difference? A&M can’t beat Alabama without Manziel. True but the NCAA is going to take that into account if any school penalties are applied.
There really isn’t a comparison to Cam Newton in 2010. Auburn may have rolled the dice after ESPN.com’s report came out in early November of that year. The difference: It was November. The season was three-quarters done and the situation was cleared up by the end of the month. It involved Newton’s father exploiting a loophole in the NCAA rules.
There is an Enforcement Experience in College Station at the moment that no one wants to go through.
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