There’s a story behind that. Despite having used up her limit of three three-year terms, Potuto was placed back on the COI for the USC case. She replaced Oregon law school professor James O’Fallon, who wasn’t allowed to sit on the case of a fellow Pac-10 conference member.
Potuto’s presence was a problem, Shell says, despite her testimony to Congress that the NCAA’s “enforcement, infractions and hearing procedures meet due process standards. In fact, they parallel, if not exceed, those procedures … the NCAA in its infractions process clearly meets and very likely exceeds applicable 14th Amendment procedural protections.”
Potuto also said an accused absolutely could confront an accuser at an NCAA hearing.
Bachus said he was surprised, maybe that he had misunderstood, thinking “that you didn’t allow people to confront the witnesses.”
“I teach constitutional law,” Potuto assured Bachus. “We do, and I can give you the bylaw provisions.”
That assurance will be news to USC lawyers who did everything they could think of to try to interview, or just sit in on the NCAA staff’s interviews, with McNair accuser Lloyd Lake. But USC was rebuffed in every instance, to the point of finally accusing the NCAA of resorting to deliberately misleading them to keep the USC lawyers away from the Lake interviews.
Bachus, in a post-hearing newsletter, realized he’d been had, zeroing in on Potuto’s assurance of the accused’s ability to confront accusers at an infractions hearing “as nothing other than deceptive.”
Here’s how that went:
Potuto: “Anybody who appears at that hearing has that right … to ask questions of any individuals or party at a hearing.”
Bachus: “So anyone charged with an offense has the right to appear at the hearing and cross-examine all the witnesses?”
Potuto: “Cross-examining might not be the correct term for it but certainly the right to inquire of anyone else who appears.”
Bachus: “To question the witnesses?”
Potuto: “Of course.”
But in his written testimony to the Subcommittee, nationally renowned Tulane Sports Law Professor Gary Roberts, shot Potuto’s testimony down, saying such questioning would not be possible.
“Because most of the people with personal knowledge of the relevant facts are not allowed to attend, cross-examination of ‘witnesses’ is not possible, ” Roberts wrote. “Rules of evidence are not followed and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.”
Potuto didn’t mention that, Shell says. And that could be a problem for the NCAA now.
