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Gilby and Dana: Not guilty!! By: Richard Linde, 20 November 2003
Okay, okay, let's stop pulling at your heart strings and get down to bare facts. As they say in some parts of Ventura County, lo siento. Forget whether Keith Gilbertson is allegedly lying--or not remembering--about bets placed in basketball pools in 2001 and 2002. Forget that Ikaika Malloe said, when talking to Neuheisel’s lawyers, “that in a June 2003 phone call, Mr. (Keith) Gilbertson stated that if he became the head coach of the University of Washington, Mr. Malloe could possibly get a chance to get the tight end coaching job. Mr. Gilbertson went on to tell Mr. Malloe, among other things, that ‘I’m going to come clean … I’m gonna tell [the NCAA] that I participated in the pool in 1999 and I’m gonna leave it at that’". Malloe says he ran the 2001-02 office pools at the UW and that Gilbertson, Chuck Heater, Tim Hundley, Jerry Nevin and others had participated. Forget that the Pac-10 chose not to cite Neuheisel with a violation of Bylaw 10.1, which governs lying to the NCAA and not providing full disclosure during an investigation. Forget about the memo written by Dana Richardson and all the other nonsense surrounding the firing of Rick Neuheisel, like the fact the NCAA blindsided him in violation of its rules (Bylaws 32.3.5 and 32.3.6). All of the dirt surrounding Neuheisel, his fellow coaches and UW athletic personnel, whether riding a whirligig in a park or at the bottom of a centrifuge in a lab, distil into one simple fact: the ambiguity of the NCAA Bylaw on gambling, 10.3. If Neuheisel didn't violate 10.3 then there is no case against him. The Pac-10 has swept 10.1 under the rug, which leaves his lie about the 49ers job with which to trash him; think about that the next time you interview for a job. We are told by Neuheisel’s lawyers that a “nationally-recognized legal scholar has concluded that under the principles of due process adopted by the NCAA, Bylaw 10.3’s vagueness renders it unenforceable in the circumstances of this case. In fact, Bylaw 10.3 does not by its terms prohibit participation in such auctions or pools, and the University’s interpretations of the Bylaw as allowing the conduct in question were reasonable.” The legal scholar says that Neuheisel is “entitled to both a Bylaw that clearly states what is prohibited and a correct interpretation of the Bylaw from his Compliance Office. Since he received neither, he cannot be held at fault.” And, for the very same reason, neither can Keith Gilbertson be held at fault for participating in any basketball pool, notwithstanding any alleged cover-up of his own participation in the 2001 and 2002 pools at the UW. And neither can assistant athletic Dana Richardson, who interpreted 10.3 in a reasonable manner, be faulted. She was the one who sent out the memo to athletic department personnel saying it was okay to participate in basketball pools as long as it was done outside of the ICA. Why doesn’t anyone in the media talk about the vagueness of NCAA Bylaw 10.3 regarding March Madness pools, the ambiguity of which exonerates Rick Neuheisel? No one in the media ever mentions the cogent case presented by Neuheisel’s lawyers with regards to ambiguity. If the media did, there wouldn’t be anything to write or talk about. It’s as simple as that. If the media wished, they could make a compelling case for Neuheisel’s innocence and, under their scrutiny, the NCAA would cowardly back away. Whoops, end of story. However, let it be said that the media aren’t conspiring against Neuheisel; in their quest to make money, they deliberately perpetuate the notion that the NCAA rule on gambling is clear about participating in sports pools when it’s not. As the media's case against the former Washington coach grows weaker, so does their logic. Some in the media say that Neuheisel has turned on his old friend Keith Gilbertson by suggesting he lied about his participation in the 2001 and 2002 pools. Their bashing of Neuheisel is never-ending. Neither Gilby nor Richardson are guilty of doing anything wrong according to Neuheisel's attorneys. The ambiguity of 10.3 exculpates Giby. Consider that as a favor from an old friend to an old friend sent by Neuheisel's attorneys. Jurisprudentially, it's a gift to Dana Richardson as well. If would have been a disservice to Neuheisel for his attorneys to leave out exculpating evidence such as the testimony of Malloe, even though it is damaging to Gilby in the short run. That bylaw says nothing about sports pools, even though the NCAA had previously considered modifying its rule to do so. Somehow that modification ended up in the bit bucket. We have parsed 10.3 until we’re blue in the face. The fact that other reasonable people may parse it differently proves the contention of Neuheisel’s lawyers that he is being denied due process because of the ambiguity of the rule. Once again, here’s our interpretation of the rule, which was written on 10 June and taken from the story, “Three little words: No Sports Pools.” -------------------- Here’s the way NCAA Bylaw 10.3 reads, along with my scholarly, er hum, interpretation. I'm not a lawyer, just a fan. But, really, you don't need a lawyer to interpret it, although a lawyer appearing on Fox NW gave me the inspiration and some courage to interpret this rule. He concentrated on the words solicit and accept as he parsed the rule, as I did with my parsing. Staff members of a member conference, staff members of the athletics department of a member institution and student-athletes shall not knowingly: (Revised: 4/22/98 effective 8/1/98) (a) Provide information to individuals involved in organized gambling activities concerning intercollegiate athletics competition; Comment: Neueheisel did not provide information to individuals involved in gambling activities. (b) Solicit a bet on any intercollegiate team; Comment: If he had been running the pool, he would have solicited a bet. However, he was the person being solicited. (c) Accept a bet on any team representing the institution; Comment: He did not accept a bet on any of Washington’s teams. (d) Solicit or accept a bet on any intercollegiate competition for any item (e.g., cash, shirt, dinner) that has tangible value; or (Revised: 9/15/97) Comment: This part of the rule is no different than parts b and c as far as Neuheisel is concerned. The words solicit and accept are the relevant parts. So the fact that part d is missing on some of the web sites is irrelevant. Just the same, I'll parse the rule. If he had been running the pool, had solicited a bet and accepted it, this part of the rule would apply. What he did do was accept an invitation to participate in a pool. That’s different than accepting a bet, which is usually thought of as an agreement between a gambler and a bookie to wager on a contest. Examples: 1. Gambler: “I would like to place a bet on the Ohio State/Washington football game.” Solicitor: “I accept your bet.” 2. Pool operator: “Would you like to participate in our March Madness pool?” Neuheisel: “Yes, I would like to participate in your pool.” 3. Pool operator: “Would you like to place a bet in my March Madness pool? Neuheisel: “Yes, I accept your invitation to place a bet.” Pool Operator: “I accept your bet.” (e) Participate in any gambling activity that involves intercollegiate athletics or professional athletics, through a bookmaker, a parlay card or any other method employed by organized gambling. Comment: Neuheisel is guilty of participating in a gambling activity involving intercollegiate athletics. However, he is not guilty of participating in a gambling activity employed by organized gambling, such as using a bookmaker or a parlay card. Richard Linde (a.k.a., Malamute) can be reached at malamute@4malamute.com |
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The
whole case against Rick Neuheisel is just a house of cards supported by the
vagueness of NCAA Bylaw 10.3 and, as a house of cards, it crumbles under the
lightest wind of inspection or, in this case, from the tears shed by the queen
of hearts for Neuheisel, his wife and three sons.