As discussed, one key problem with the NCAA's case was that it did not permit USC to attend and question many of the key witnesses, including accuser Lloyd Lake. It is appropriate, then, that sitting on the Committee on Infractions ("COI") for the USC case was constitutional law professor and Nebraska Faculty Athletics Representative Josephine (Jo) Potuto.
You see, at around the time the NCAA claims Reggie Bush and Lake were about to enter into their marketing agreement, Potuto was appearing before a congressional committee to discuss whether the NCAA provides fair, due process to its members and student-athletes in enforcement cases.
On September 14, 2004, Potuto appeared as a representative of the NCAA at a hearing on "Due Process and the NCAA" before the Subcommittee on the Constitution of the House Committee on the Judiciary. Responding under oath to questions from Representative Spencer Bachus of Alabama, Potuto defended the NCAA's rules on confronting witnesses:
Ms. POTUTO: There are a number—I heard—Mr. Congressman, I heard you before say persons who are alleged to have violated have no right to confront their witnesses. Anybody who appears at that hearing has the right, and I can cite you the bylaw provision, to ask questions of any individual or party at that hearing.
Mr. BACHUS: So anyone charged with an offense has the right to appear at the hearing and cross-examine all of the witnesses?
Ms. POTUTO: I don't know, cross-examining might not be the correct term for it, but certainly the right to inquire of anyone else who appears. And, yes——
Mr. BACHUS: To talk—to question the witness?
Ms. POTUTO: Of course. And anybody——
Mr. BACHUS: Well, all right. Well, I was under the——
Ms. POTUTO:—with a violation clearly has the right to appear before the——
Mr. BACHUS: I was under the misunderstanding that you didn't allow people to confront the witnesses.
Ms. POTUTO: We do. And I can give you the bylaw provisions.
Did you catch Potuto's sleight of hand? It is true that NCAA bylaws permit anyone attending a COI hearing to ask questions of anyone else at the hearing, subject to the direction of the COI. But the catch is that the only people who generally attend COI hearings are the COI members, the NCAA enforcement staff, and the institution's representatives and accused coaches or student-athletes.
Witnesses, especially outside accusers like Lloyd Lake, are not present at COI hearings. Rather, their testimony is provided both through reports of the enforcement staff and transcripts of prior interviews. The power to question anyone at the hearing is therefore a hollow one.
Keep that in mind and take in Potuto's testimony again:
Ms. POTUTO: There are a number—I heard—Mr. Congressman, I heard you before say persons who are alleged to have violated have no right to confront their witnesses. Anybody who appears at that hearing has the right, and I can cite you the bylaw provision, to ask questions of any individual or party at that hearing
Mr. BACHUS: So anyone charged with an offense has the right to appear at the hearing and cross-examine all of the witnesses?
Ms. POTUTO: I don't know, cross-examining might not be the correct term for it, but certainly the right to inquire of anyone else who appears. And, yes——
Mr. BACHUS: To talk—to question the witness?
Ms. POTUTO: Of course. And anybody——
Mr. BACHUS: Well, all right. Well, I was under the——
Ms. POTUTO:—with a violation clearly has the right to appear before the——
Mr. BACHUS: I was under the misunderstanding that you didn't allow people to confront the witnesses.
Ms. POTUTO: We do. And I can give you the bylaw provisions.
Mr. Bachus was not under any "misunderstanding" that the NCAA didn't allow people to confront witnesses. His understanding was exactly correct. By omitting the fact that witnesses do not attend COI hearings, Potuto's testimony was highly misleading.
Potuto also testified:
"In fact, even if the—the Congress were to determine or to declare that the NCAA is a state actor, none of the processes that currently are being engaged in I think would have to change, because I think the NCAA committees exceed what procedural due process requires."
Bachus responded after the hearing:
"Today’s House Judiciary Committee hearing regarding the NCAA allowed the public to hear testimony that clearly showed the NCAA’s disregard for openly public hearings. Sworn statements made by the NCAA representative also contradict widely known facts about their infraction hearing procedures."
Ironically, Potuto is regarded as "a fierce questioner and unafraid to call out school officials who attempt to massage the truth."
Don't BS a BSer, I guess.