In its first attempt to charge USC assistant coach Todd McNair with knowledge of Lloyd Lake's fledgling marketing agency and benefits to Reggie Bush, the NCAA was entirely unsuccessful. From the March 4-5, 2005, Marshall Faulk birthday party, we fast-forward to October 29, 2005. USC beat Washington State that day, and Reggie Bush was tasked with hosting coveted recruit Percy Harvin that evening.
The NCAA does not allege that McNair learned anything about Lake's sports marketing plans or improper benefits on October 29. Rather, the NCAA points to the night in an effort to discredit McNair, who claims he does not recall meeting Lloyd Lake and did not know anything about improper benefits Lake and Michael Michaels provided to Bush.
In charging and finding McNair guilty of unethical conduct for allegedly providing false and misleading information during the investigation, the NCAA points to calls from McNair to Lake's cell phone and a photograph showing McNair and Lake in a club. The NCAA asserts that these pieces of evidence show McNair lied in denying that he recalled meeting Lake. Let's handle each in turn.
One key piece of evidence for the NCAA is McNair's phone records, which show three calls to Lake's cell phone the night of October 29. Specifically, McNair's phone records show:
- 8:42pm - from Bush - 2min, 53sec
- 9:11pm - to Bush - 1 minute
- 9:12pm - to Harvin - 1 minute
- 9:13pm - from Harvin - 1 minute
- 10:25pm - to Bush - 1 minute
- 10:57pm - to Bush - 1 minute
- 11:07pm - to Bush - 1 minute, 41 seconds
- 11:39pm - to Lake - 1 minute
- 11:52pm - to Lake - 1 minute
- 11:56pm - to Bush - 1 minute
- 11:56pm - to Lake - 1 minute
** Note: This reconstruction comes from redacted documents, so I did my best to decipher the names correctly**
These last four calls are all billed at the phone carrier's minimum one minute increment, which means they lasted between one second and 59 seconds. These one-minute increment calls do not necessarily mean a conversation took place because hanging up once the voicemail greeting answered would record as a one-minute call.
The NCAA concluded that these calls from McNair to Lake's phone demonstrate that McNair knew that Lake was with Bush and was calling to arrange to meet with them. The NCAA concluded that the calls ended at 11:56pm because McNair had met up with Bush and Lake at a club.
McNair's explanation for the phone records remained consistent from the first time he was questioned through the hearing and appeal. When he sat for an interview with the NCAA on February 15, 2008, McNair had no forewarning about the phone records or the NCAA enforcement staff's intent to question McNair about that October 2005 night. When confronted with the records, McNair reasoned that Bush was probably hosting a recruit that night, Bush had given him an alternate number to call as Bush's cell phone battery was dying, and McNair called that number (which was Lake's) trying to reach Bush to check up on the status of Bush and the recruit.
The NCAA enforcement staff immediately dismissed McNair's explanation. At the interview, the NCAA staff said they were confident that Bush was not hosting a prospect that night. After the interview, records were reviewed and it was determined that McNair was right that Bush was in fact hosting a recruit that night (Harvin).
It also turns out that McNair had reason to be hounding Bush because Bush was neglecting his hosting duties. Instead of entertaining Harvin, a top prospect, Bush was out with his family and friends (including Lake) while Harvin sat waiting in his hotel room. Bush didn't pick up Harvin until around midnight.
McNair's story is consistent with the phone records and Harvin's testimony. Roughly: McNair makes calls to Bush and Harvin and learns that Bush has failed to pick up Harvin. McNair talks to Bush at 11:07pm, at which time Bush possibly gives McNair an alternate number to call because Bush's phone battery is dying. McNair calls the number twice, failing to reach Bush. He tries Bush's phone and then immediately tries the alternate number again at 11:56pm. At this point, Bush has finally picked up Harvin and the phone calls cease (Harvin testified that Bush picked him up from the hotel around midnight).
The NCAA's version of events is less consistent with the phone records and Harvin's testimony. The NCAA believes McNair was calling Lake to meet up with Lake and Bush and that the calls stopped at 11:56pm when McNair finally met up with Bush, Lake, and Harvin at the club. However, Harvin testified that he did not recall seeing McNair at the club(s). Further, Harvin testified that Bush did not pick him up from the hotel until around midnight, making it unlikely that Bush could be at the club at 11:56pm, the time of the last call.
The NCAA's second key piece of evidence was a digital photograph showing McNair, actor Faizon Love, Lake, and Michael Michaels. The NCAA claims the photo was taken the night of October 29, 2005. McNair's testimony was that he was club-hopping with Love, a friend. Love and Lake are also friends.
USC argued that the photo does not prove that McNair actually knew Lake and sheds no light on the question of what McNair knew about Lake's dealings with Bush. To illustrate this point, SC pointed to another famous photo:
USC explains: "The photograph depicts a couple arm-in-arm with Vice-President Joe Biden at a State Dinner at the White House. The trio look to be the best of friends and, certainly, we are led to assume that the well-dressed couple are important dignitaries. In fact, the Vice-President does not know these people, nor were they invited to the State Dinner. As the whole world now knows, the publicity-hungry duo bypassed the Sercret Service and crashed the event. This is a graphic example of two facts: (1) people elbow their way into events and manage to get themselves photographed with celebrities, and (2) a picture tells us nothing about the relationships of the people depicted."
USC also questioned the authenticity of the photograph. USC was not permitted access to the original digital file despite repeated requests to the NCAA enforcement staff. An expert retained by USC concluded "with certainty that the photograph provided is not the original and has been altered or cropped." This conclusion is supported by the appearance of a right hand (which the NCAA concedes belongs to a woman) appearing on McNair's shoulder. The hand does not appear to belong to anyone in the photo and is at an awkward angle.
USC further argues:
"USC also has questions about the digital file's format. The [NCAA enforcement] Staff provided the photograph above in the BMP format. Of the seven photographs the Staff provided, this is the only one not in JPEG format, which is the default format for digital cameras. If a photograph has been photoshopped or altered in the JPEG format, one way to attempt to conceal the evidence of any changes is to convert or save the altered photograph to a different format such as BMP."
Percy Harvin, the recruit hosted by Bush on October 29, was shown the photograph and testified that he saw Michaels and Lake at the club that night, but "that's definitely not what they had on in the club . . . they had on button ups. I know that, I know that for a fact."
The Hangover Part III: Piecing Together the Night
Sifting through October 29, 2005, is like reading a real-life, unfunny version of the movie The Hangover.
In part due to the NCAA's failure to thoroughly question Lake on what he claims happened that night (compounded by the fact that the NCAA prevented USC from being present at the Lake interview), and in part due to the fact that Lake, McNair, Bush, and Harvin were attempting to recall (years later) the events of one night of drinking, the story of that October night remain largely unsettled. At the hearing, the lead NCAA enforcement staff member (the prosecution) conceded:
"We are at the point where I am not sure anyone at this stage, with all the stories, could sort this thing out completely as to who was where at what time."
Despite this concession by the NCAA enforcement staff, despite the fact that McNair's story was consistent with the facts and phone records, and despite the fact that McNair merely stated he did not recall ever meeting Lake (as opposed to definitively denying ever meeting him), the NCAA COI nevertheless concluded that McNair lied and in fact called Lake's phone for the purpose of meeting up with Lake and Bush. They cited this as an "example of [McNair's] lack of credibility."