Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

8/10/2019 Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

1/119

Davi d Ber st

TSG Repor t i ng - Wor l dwi de 877- 702- 9580

Page 1

1 I N THE COMMONWEALTH COURT OF PENNSYLVANI A 09: 082

J AKE CORMAN, i n hi s of f i ci al )

3 capaci t y as Senat or f r om t he ) 34t h Senat or i al Di s t r i c t of )

4 Pennsyl vani a and Chai r of t he ) Senat e Commi t t ee on )

5 Appr opr i at i ons; and ROBERT M. ) McCORD, i n hi s of f i ci al )

6 capaci t y as Tr easur er of t he ) Case No. Commonweal t h of Pennsyl vani a, ) 1 M. D. 2013

7 )

Pl ai nt i f f s, )8 )

vs . )9 )

NATI ONAL COLLEGI ATE ATHLETI C )10 ASSOCI ATI ON, )

)11 Def endant , )

)12 vs . )

)13 PENNSYLVANI A STATE UNI VERSI TY, )

)14 Def endant . )15

16

17 DEPOSI TI ON OF DAVI D BERST18 I ndi anapol i s , I ndi ana19 Wednesday, November 12, 201420

21

22

23 Repor t ed by:24 RACHEL F. GARD, CSR, RPR, CLR, CRR25 J OB NO. 86746


2/119

Davi d Ber st


2 ( Pages 2 t o 5)

Page 2

1234 November 12, 20145 9:05 a.m.6

7 Deposition of DAVID BERST, at the offices8 of Barnes & Thornburg, 11 South Meridian9 Street, Suite 200, Indianapolis, Indiana,

10 pursuant to subpoena before Rachel F. Gard,11 Illinois Certified Shorthand Reporter,12 Registered Professional Reporter, Certified 13 LiveNote Reporter, Certified Realtime Reporter,14 Indiana Notary Public.1516171819

202122232425

Page 4

1 A P P E A R A N C E S:2

3 LATHAM & WATKINS4 Attorneys for Defendant NCAA5 555 Eleventh Street, N.W.6 Washington, DC 200047 BY: ALLEN GARDNER, ESQ.8 BRIAN KOWALSKI, ESQ.9 SARAH GRAGERT, ESQ.

10 11 12

13

14

15

16

17 THE LAW FIRM OF KILLIAN & GEPHART18 Attorneys for Defendant NCAA19 218 Pine Street20 Harrisburg, Pennsylvania 1710821 BY: ROBERT DANIELS, ESQ.22 23 24

25

Page 3

1 A P P E A R A N C E S:2 CONRAD O'BRIEN3 Attorneys for Plaintiffs4 1500 Market Street5 Philadelphia, Pennsylvania 191026 BY: MARK SEIBERLING, ESQ.7 MATTHEW HAVERSTICK, ESQ.8 ALEXIS MADDEN, ESQ.9

10 111213141516 LATSHA DAVIS & McKENNA17 Attorneys for Plaintiffs18 350 Eagleview Boulevard 19 Exton, Pennsylvania 1934120 BY: KEVIN McKENNA, ESQ.21 22 232425

Page 5

1 A P P E A R A N C E S:23 REED SMITH4 Attorneys for Defendant Pennsylvania State5 University6 Reed Smith Centre7 225 Fifth Avenue8 Pittsburgh, Pennsylvania 152229 BY: DONNA DOBLICK, ESQ.

10 1112131415 ALSO PRESENT: SCOTT BEARBY, NCAA16 ZANDRIA CONYERS, NCAA17

1819202122232425


3/119

Davi d Ber st


3 ( Pages 6 t o 9)

Page 61 I N D E X2 WITNESS PAGE3 DAVID BERST4 Examination by Mr. Haverstick 56 E X H I B I T S7 BERST DEPOSITION EXHIBIT PAGE8 Exhibit 1 Division I manual for 35

2011/'129

Exhibit 2 Email 4610




Exhibit 6 Appointment invite 11714

Exhibit 7 Calendar invite 12315

Exhibit 8 Appointment invite 12516

Exhibit 9 Telephone call invite 12717








Page 81 (Witness sworn.) 08:342 09:053 Q. Good morning, Mr. Berst. My name is 09:054 Matt Haverstick, and I represent Senator Jake 09:055 Corman, State Senator from Pennsylvania. And I 09:056 think you met them already, but I have my 09:057 colleagues, Alexis Madden and Mark Seiberling 09:058 is at the very end and Kevin McKenna is also 09:059 with us. 09:06

10 So I gather you've been deposed 09:0611 before? 09:0612 A. Yes. 09:0613 Q. And testified before? 09:0614 A. Yes. 09:0615 Q. I'm not going to bother with all the 09:0616 preliminaries. I think you know all of that 09:0617 stuff. 09:0618 I'm -- go ahead. 09:0619 A. Well, yes, I'll bother with a little 09:0620 preliminary. 09:0621 Q. Please, do. 09:0622 A. I just want to ensure that there are 09:0623 notes available from you overnight or however 09:0624 quickly that is done because I want access to 09:0625 them as well. 09:06

Page 71 E X H I B I T S2 BERST DEPOSITION EXHIBIT PAGE3 Exhibit 17 Telephone meeting invite 2384 Exhibit 18 Email 2385 Exhibit 19 Draft executive committee 248

notes dated July 21, 20126

Exhibit 20 Draft executive committee 2487 notes dated July 21, 20128 Exhibit 21 Email 2549 Exhibit 22 Email 255

10 Exhibit 23 Email 26211 Exhibit 24 Email 26912 Exhibit 25 Email 27913141516171819202122232425

Page 91 Q. To the -- 09:062 A. Deposition. 09:063 Q. Yeah, sure. That's up to you and 09:064 your counsel. Sure, you, I'm sure, will get an 09:065 opportunity to look at whatever is recorded by 09:066 the recorder today. 09:067 A. Yeah, I may well use it myself. 09:068 Q. Okay. So you know the drill. I'll 09:069 be asking questions as we go out, go along 09:06

10 through today. Actually, it's rare that I get 09:0711 to talk to someone as interesting as you, and I 09:0712 don't mean that as false flattery. I think 09:0713 this will be an interesting conversation. And 09:0714 some of my questions will be more sterile, and 09:0715 they will be readily discernible where I'm 09:0716 driving or what I'm asking for. And others are 09:0717 more conversational and maybe more 09:0718 philosophical. And I hope we can have a 09:0719 conversation because that's sort of how I look 09:0720 at what we're going to do today, for the most 09:0721 part. 09:0722 Is that okay with you? 09:0723 A. That would be wonderful. 09:0724 Q. From time to time, I'll show you 09:0725 documents. We'll sort of play that as it lays, 09:07


4/119

Davi d Ber st


4 ( Pages 10 t o 13)

Page 101 I think, but if you need to take a look at a 09:072 document for a couple minutes when I show 09:073 you -- in fact, if you need to take a break 09:074 whenever, just let me know and we can go do 09:075 that. 09:076 One issue that we've been running 09:077 into, and I'm just going to flag it for you and 09:088 put it on the table so we don't get confused 09:089 about it later on. 09:08

10 There's going to be questions where 09:0811 Donald Remy is going to come up and your 09:0812 counsel, quite correctly, is going to tell you, 09:0813 if I'm asking about a conversation between you 09:0814 and Donald Remy in which you and Donald are 09:0815 conversing for the purpose of Donald giving you 09:0816 legal advice, that's something that your 09:0817 counsel is going to tell you not to answer. 09:0818 And that's fair. That's fair. 09:0819 I'd ask if you're having a 09:0820 conversation with Donald or there's one 09:0821 reflected in an email and you can tell me 09:0822 honestly from your memory, you know, I wasn't 09:0823 talking to Donald to get legal advice, we were 09:0824 doing it for some other reason, my view is that 09:0825 is fair game. But I'm saying it now so that 09:08

Page 121 senior staff member on the NCAA staff. I 09:092 started in 1972 after a brief period of time 09:093 where I was an assistant basketball/head 09:094 baseball coach at McMurray College. I started 09:105 as a field investigator. Became director of 09:106 enforcement. Subsequently head of the 09:107 enforcement program and eligibility of appeals 09:108 sections of the regulatory area for -- I 09:109 probably managed that area around 25 years or 09:10

10 so. 09:1011 And then for the last 15 or so, I've 09:1012 been vice president for Division I, which means 09:1013 that I facilitate, manage general policies that 09:1014 affect Division I institutions. I work with 09:1015 the presidential board of directors that adopts 09:1016 legislation, passes policies in Division I. 09:1017 I was envoy in major issues 09:1018 affecting athletic directors, commissioners, 09:1019 others, coaches around the country, serve on 09:1020 the National Association of Basketball Coaches 09:1121 board of directors. I deal with, then, most of 09:1122 the so-called power coaches in sports in 09:1123 Division I. I 'm sort of a generalist. So I've 09:1124 gone from the so-called regulatory, more 09:1125 prosecutorial area to the area where you 09:11

Page 111 you -- again, so we don't have to hit it every 09:082 single time we hit with a Donald Remy question 09:083 and that you're sensitized to it. So you can 09:084 stop and pause or talk to your counsel if you 09:085 need to think, wait a minute, is this one where 09:096 I was talking to Donald for legal advice, or is 09:097 this for something else. Okay? 09:098 MR. KOWALSKI: I just add to that, 09:099 there may be instances where we have an 09:09

10 understanding from the association's 09:0911 perspective or from Mr. Remy's perspective 09:0912 what the purpose of certain communications 09:0913 were, and so we do ask you to be very 09:0914 careful about revealing the contents of any 09:0915 communications with Donald Remy before we 09:0916 have an opportunity to fully evaluate 09:0917 whether they may be privileged. 09:0918 A. I think my involvement is narrow 09:0919 enough that I should be able to work my way 09:0920 through that. 09:0921 Q. Okay. Good. 09:0922 Why don't we start where these 09:0923 always start. Tell me a little bit about 09:0924 yourself and your background. 09:0925 A. I am probably, I guess, the most 09:09

Page 131 establish policies going forward. 09:112 Q. A question or two about that first 09:113 category that you mentioned, the -- I suppose 09:114 it was director of enforcement. 09:115 Did I get the title right? 09:116 A. Well, I was for a while. I became 09:117 assistant executive director and then vice 09:118 president. Everyone usually wanted to talk to 09:119 the director of enforcement. And when that 09:11

10 happened and I was a supervisor, I quickly 09:1111 transferred the line to the director but became 09:1212 known as the director of enforcement, yes. 09:1213 Q. What -- and I don't expect every 09:1214 single duty or responsibility. But in a 09:1215 summary fashion, tell me what one in that job 09:1216 does or handles. 09:1217 A. We collected information related to 09:1218 potential alleged violations of NCAA rules in 09:1219 all areas, often recruiting on the major -- you 09:1220 know, in the major revenue sports would 09:1221 probably be the most likely candidates for 09:1222 investigations where we developed sufficient 09:1223 information. To inquire further, I would 09:1224 submit a letter of preliminary inquiry to the 09:1225 institution in order to advise them that they 09:12


5/119

Davi d Ber st


5 ( Pages 14 t o 17)

Page 141 were to be investigated by the enforcement 09:122 staff. 09:123 We'd set out to do so on campus and 09:124 elsewhere, wherever you might first develop the 09:135 most truthful information possible. 09:136 Eventually, if we were able to 09:137 establish sufficient information that we 09:138 believed the committee on infractions, which is 09:139 a peer group of faculty and lawyers and others 09:13

10 from schools who act as judges in these 09:1311 matters, if we were to believe they might make 09:1312 findings of violations and assess a penalty, we 09:1313 would submit a letter of official inquiry 09:1314 requiring an institution to go back out, 09:1315 collect direct information much like we did, 09:1316 and for all of us, then, to appear before the 09:1317 peer group of committee on infractions members 09:1318 to evaluate the information and eventually 09:1319 assess penalties, if appropriate, pending 09:1320 appeals and so forth. 09:1321 Q. The initial letter that goes to 09:1322 institutions, is that a public letter, or is 09:1323 that a private letter? 09:1324 A. It's private from our perspective. 09:1425 We don't announce it, but we send it directly 09:14

Page 161 Q. Okay. 09:152 A. -- ways to frame it. Often as I was 09:153 beginning to operate the program, I wanted to 09:154 control the information and where we might go. 09:155 So for me, it was more notice. And then that 09:156 at least alerted the institution that we would 09:157 be conducting inquiries. 09:158 I'd say it's probably much more 09:159 specific now at this point. 09:15

10 Q. Who, if there is a typical, who 09:1511 typically would be the signatory on behalf of 09:1512 NCAA of that first letter? 09:1513 A. For me, it was me as head of the 09:1614 enforcement program. Now it would be the vice 09:1615 president of enforcement. 09:1616 Q. And who's that? 09:1617 A. John Duncan. 09:1618 Q. I'm going to paraphrase just so I 09:1619 don't waste all your time. I'm sure there are 09:1620 things you'd rather be doing than sitting in 09:1621 this room all day. 09:1622 It sounds to me like, tell me if 09:1623 I've got it right, that letter is sort of a 09:1624 notice the NCAA may conduct a formal 09:1625 investigation or may refer to the committee on 09:16

Page 151 to either the president or the chancellor of 09:142 the institution signed by the head of the 09:143 enforcement program. 09:144 Q. Does it list potential violations of 09:145 NCAA bylaws and regulations and rules? Or is 09:146 it a general document saying we're looking at 09:147 you? 09:148 A. It has evolved over time. I would 09:149 submit something quite general very early on, 09:14

10 and as I was conducting the programs, they 09:1411 became more structured following that and 09:1412 became more specific in regard to areas of 09:1413 inquiry. Often pointing out either the methods 09:1414 or the areas that we might be inquiring into. 09:1415 Q. That letter, and tell me if it's 09:1416 different than it would be today, does that 09:1517 letter do anything more, require anything more 09:1518 than notice for the institution to determine -- 09:1519 just to put them on notice? In other words, 09:1520 does it require the institution to respond? 09:1521 Does it require the institution to gather 09:1522 documents for you? 09:1523 MR. KOWALSKI: Objection to form. 09:1524 A. Well, any of the above are 09:1525 possible -- 09:15

Page 171 infractions, you're putting the institution on 09:162 notice, NCAA then goes and does its own 09:163 investigation of potential violations? 09:164 MR. KOWALSKI: Objection. 09:165 A. It's a letter that says we are, in 09:166 fact, going to conduct an investigation. We're 09:167 on it, and we have enough for us to be curious 09:168 about what the rest of the information is that 09:169 may be available. At the end of that process, 09:16

10 you could still make a decision -- 09:1711 Q. Not to -- 09:1712 A. -- we've got not enough or we have 09:1713 more than we anticipated and we're going to 09:1714 draft the official letter of inquiry. 09:1715 Q. Your NCAA investigators in that 09:1716 interim period before a decision is made on 09:1717 what to do with the committee of infractions 09:1718 are the ones doing the investigation? 09:1719 A. They, for the most part, are. Could 09:1720 be anyone from the association. Actually, 09:1721 there probably were assignments to people who 09:1722 were even outside the staff during the time I 09:1723 was conducting the program, and there is the 09:1724 ability of the infractions process or the 09:1725 enforcement staff to collect information from 09:17


6/119

Davi d Ber st


6 ( Pages 18 t o 21)

Page 181 any source. So we get information from 09:172 newspaper articles, for example. That would be 09:173 enough for us to think about do we need to 09:174 collect some additional information, and we 09:175 might do that without any notice at all to an 09:176 institution. 09:177 When we reach the point where we 09:178 think, well, this really does seem to be enough 09:189 reasonably reliable information to conduct 09:18

10 further inquiries, then that's the point where 09:1811 the letter is required. 09:1812 Q. The folks outside of your 09:1813 enforcement staff who get involved could be 09:1814 officials at the conferences? 09:1815 A. Sure. Could be anyone. 09:1816 Q. Could it be outsourced? Does 09:1817 enforcement do that, hire investigators to go 09:1818 do enforcement investigations for them? 09:1819 A. I'm sure that's happened on 09:1820 occasion. I had, yes, 25 arson investigators 09:1821 actually who, as a sidelight, were contracted 09:1822 with me to conduct inquiries with highly 09:1823 recruited student athletes or prospects to ask 09:1824 them what went on in their recruitment or 09:1825 whether there were any things that caused 09:18

Page 201 A. It was an organization of arson 09:202 investigators. I don't remember the acronym 09:203 for them. But they existed, you know, 09:204 throughout the country. 09:205 Q. Was there one particular 09:206 investigation on which you used these fellows, 09:207 or was it several investigations that didn't 09:208 pan out? 09:209 A. I used them in several 09:20

10 investigations, and I would not say it didn't 09:2011 pan out. I would say they simply weren't as 09:2012 effective as people who were full-time 09:2013 employees and subject to coming back and 09:2014 debriefing and so forth. They were more fans 09:2015 of power coaches than they were effective 09:2016 investigators. 09:2017 Q. Roughly what time frame are we 09:2018 talking about, if you recall? 09:2019 A. That would have been the '80s. 09:2020 Q. I'm going to get back into my little 09:2021 crib note on what I think the enforcement 09:2122 process is. 09:2123 Once your investigation is complete, 09:2124 enforcement decides whether it's going to, this 09:2125 is my word, not yours, file a formal complaint 09:21

Page 191 concern related to NCAA rules. So sure. You 09:192 could do it that way. You could receive 09:193 information from any source. 09:194 Q. Curiosity, there wasn't any 09:195 particular reason they were arson investigators 09:196 other than they were just investigators, it 09:197 wasn't like these kids were suspected of 09:198 setting fires, were they? 09:199 A. No. My hope was that it was a group 09:19

10 of folks with some enforcement background and 09:1911 integrity to be able to conduct inquiries on 09:1912 our behalf. It was a failed effort, however. 09:1913 Q. What was that effort? 09:1914 MR. KOWALSKI: Objection. 09:1915 A. Well, I used them as an additional 09:1916 set of resources to conduct inquiries, and I 09:1917 didn't think they were very effective at doing 09:1918 it. So I disbanded the program. 09:1919 Q. Do you recall whether those 09:1920 investigators were part of a private 09:1921 investigative organization or business, or were 09:2022 they just sort of ad hoc, you were finding 09:2023 investigators and then hiring them for the 09:2024 special task? 09:2025 MR. KOWALSKI: Object to form. 09:20

Page 211 with the committee on infractions, is that 09:212 roughly right? 09:213 MR. KOWALSKI: Objection to form. 09:214 A. No. If the enforcement staff 09:215 concludes that it has sufficient information 09:216 that causes them to believe that it's likely 09:217 there would be a finding of violation if the 09:218 matter is pursued with the committee on 09:219 infractions, the specific allegations of 09:21

10 wrong-doing are submitted to the institution 09:2111 itself. And the institution then is required 09:2112 to investigate, respond for the purpose of 09:2113 taking it to the committee on infractions. 09:2114 Q. Once that processed commenced, that 09:2115 is where you notify the institution of a 09:2116 probable violation of NCAA rules and 09:2117 regulations, does automatically the results go 09:2218 to the committee on infractions? 09:2219 A. I suppose it's possible for the 09:2220 matter to be adequately addressed so that there 09:2221 does not seem to be a violation necessary for 09:2222 review or further consideration by the 09:2223 committee on infractions. 09:2224 Q. When the staff is making the 09:2225 determination that we are talking about, am I 09:22


7/119

Davi d Ber st


7 ( Pages 22 t o 25)

Page 221 right that they are taking a look at the facts 09:222 as they develop and comparing them to NCAA 09:223 rules, regulations, bylaws, et cetera, and 09:224 trying to match up whether there was a 09:225 violation? 09:226 MR. KOWALSKI: Objection to form. 09:227 A. Yes. I think that's right. 09:228 Q. Okay. 09:229 A. Just recognizing that there are two 09:22

10 formal spots where the first is what I call the 09:2211 letter of preliminary inquiry, saying, school, 09:2212 we're looking. 09:2213 Q. Right. 09:2214 A. You need to know. 09:2215 Second is we made the decision that 09:2216 there is, in fact, something that we should 09:2317 take to the committee on infractions, and 09:2318 that's called a letter of official inquiry. 09:2319 Q. And who sends that? 09:2320 A. The head of the enforcement program. 09:2321 Me or in the past -- well, or now would be John 09:2322 Duncan. Prior to that, would be Julie Roe. 09:2323 Prior to that, would be David Price. 09:2324 Q. Are those letters confidential from 09:2325 NCAA's perspective? 09:23

Page 241 as well as you did. 09:242 Your section, your unit, your 09:253 division, not yours now but yours then, would 09:254 act as the prosecutors in any kind of action, 09:255 for lack of a better term? 09:256 MR. KOWALSKI: Object to the form. 09:257 A. Yeah, it really is the wrong term. 09:258 In our processes, even though I think I used 09:259 that word earlier, it's an attempt to develop 09:25

10 full facts. So the idea of this is not that 09:2511 institutions go on the defense. In fact, that 09:2512 usually works against institutions to, say, 09:2513 come and get us if you can, NCAA. And I would 09:2514 make that point during hearings. 09:2515 The idea was for us, we are supposed 09:2516 to be in the enforcement area, at least an 09:2517 objective collector of facts, both exculpatory 09:2518 and inculpatory and we work with the 09:2519 institution to discover their versions of the 09:2620 facts as well as any involved individuals' 09:2621 versions of the facts and put all of that on 09:2622 the table before the committee on infractions 09:2623 to make a judgment. 09:2624 Q. Interesting. So that when there is 09:2625 a hearing before the committee on infractions, 09:26

Page 231 A. We don't release them. Many 09:232 institutions do, due to open records concerns. 09:233 Q. Ah. 09:234 Now, as I understood your answer at 09:235 the point the institution gets that letter, it 09:236 can attempt to remediate the issue, convince 09:237 NCAA that it didn't violate a rules infraction? 09:238 Something else? Is that possible? 09:239 MR. KOWALSKI: Objection to form. 09:23

10 A. I t's more the latter. They're 09:2311 required to collect information to determine 09:2312 what they believe the findings of fact are. 09:2413 There's no plea bargain in NCAA processes. 09:2414 Q. If the matter is not resolved by the 09:2415 institution doing its own review, it moves onto 09:2416 the committee for infractions? 09:2417 MR. KOWALSKI: Objection to form. 09:2418 A. If -- I'm not sure I follow. If 09:2419 there's no -- you mean if the staff receives a 09:2420 response from the institution and the staff 09:2421 concludes that its information and facts are 09:2422 more persuasive than those submitted by the 09:2423 institution, then it does go to hearing before 09:2424 the committee on infractions. 09:2425 Q. That's -- I didn't say it obviously 09:24

Page 251 enforcement may actually be putting on evidence 09:262 that is exculpatory as well as inculpatory 09:263 because you're trying to tell them this is what 09:264 happened? 09:265 MR. KOWALSKI: Objection to form. 09:266 A. Correct. 09:267 Q. And then it's, I imagine, the 09:268 institution's burden to challenge your evidence 09:269 and your presentation of what you believe the 09:26

10 objective facts are at that point? 09:2611 MR. KOWALSKI: Object to form. 09:2612 A. I'd say the burden is on the 09:2613 enforcement staff. The enforcement staff would 09:2614 have to present persuasive information to 09:2615 overcome whatever information the institution 09:2616 or individuals submit. 09:2617 Q. As part of the hearing process, is 09:2618 there also a presentation to demonstrate to the 09:2619 infractions committee that not only are the 09:2720 facts as we present them, these facts amount to 09:2721 violations of NCAA policy? 09:2722 MR. KOWALSKI: Objection to form. 09:2723 A. During my time, yes. I would do 09:2724 those types of summaries of what I thought this 09:2725 particular case amounted to, looked like, and 09:27


8/119

Davi d Ber st


8 ( Pages 26 t o 29)

Page 261 how it should be considered. I don't know 09:272 precisely what occurs now. I've been out of 09:273 that area for 15 years, so I can't tell you 09:274 precisely how they do that now. 09:275 Q. Do you have reason to think it's 09:276 different materially than it was when you did 09:277 it? 09:278 A. Well, there are -- there are many 09:279 differences in enforcement program than when I 09:27

10 did it in 1998. So I don't know. 09:2711 Q. Okay. 09:2712 A. I don't know how to answer that. 09:2713 Q. When you -- when you did it -- and 09:2714 if you know if it's different, I'd appreciate 09:2815 if you'd educate me on it -- during this 09:2816 hearing process and assuming that violations 09:2817 are determined, is it the committee's role to 09:2818 then move on and develop sanctions? 09:2819 A. Yes, it is. 09:2820 Q. Does the sanctions process, I'm 09:2821 going to revert back to what I know which is 09:2822 sort of the criminal process, where there would 09:2823 be the liability phase and then the penalty 09:2824 phase, does it work that way in the commission 09:2825 too -- I'm sorry, for the infractions 09:28

Page 281 A. In the very early stages, they did 09:302 or I did. In the '70s, they were what I 09:303 considered to be moving into the role. At that 09:304 time, you didn't have additional staff members 09:305 to work with the committee on infractions, so I 09:306 served as both the presenter and then I was the 09:307 second secretary basically to the committee on 09:308 infractions. 09:309 So I would present a series of cases 09:30

10 that looked similar depending on how they might 09:3011 consider the findings in the case for their -- 09:3012 as a resource to the committee. That, I'm sure 09:3013 does not happen anymore or if it does, it is in 09:3014 the second phase where the hearings are over, 09:3015 the enforcement staff is gone. At that point, 09:3016 then you have the committee on infractions and 09:3117 their own staff that might do research for the 09:3118 committee. 09:3119 Q. So we -- 09:3120 A. So that's separated. 09:3121 Q. Okay. So we think now, today, 09:3122 enforcement would be less involved in 09:3123 discussing the sanctions phase -- 09:3124 A. They're not involved at all. 09:3125 Q. At all. The committee would, on its 09:31

Page 271 committee? 09:282 MR. KOWALSKI: Objection to form. 09:283 A. I'd say usually, no. There's not a 09:284 separate process or hearing. At a so-called 09:285 sentencing stage, there would be simply the 09:286 committee on infractions assessing the number 09:287 and nature of violations involved and 09:288 determining from the time I was involved 09:299 whether they were -- whether they supported 09:29

10 either secondary or major violations of NCAA 09:2911 rules and then, if so, determine what the 09:2912 appropriate penalties should be given the 09:2913 individual nature of each case. 09:2914 Q. Does the enforcement division 09:2915 advocate for a particular penalty -- let me ask 09:2916 it, break it up. 09:2917 Does it advocate for a particular 09:2918 penalty? 09:2919 A. In my time, no. I doubt if that 09:2920 would happen now. 09:2921 Q. Does or did the enforcement group 09:2922 present evidence to the committee on 09:2923 infractions on what penalties are possible 09:2924 given the facts? 09:3025 MR. KOWALSKI: Objection to form. 09:30

Page 291 own work, out what it thought should happen 09:312 with respect to sanctions? 09:313 A. Correct. 09:314 Q. Would there be input requested from 09:315 enforcement or solicited from enforcement, if 09:316 you know? 09:317 MR. KOWALSKI: You mean right now? 09:318 Q. Yeah, right now. 09:319 A. I don't know if that would occur. 09:31

10 There would be a requirement that if that kind 09:3111 of thing were to happen, I think both parties 09:3112 have to be ill advised. There must be some 09:3113 missing piece of information that they need to 09:3114 take into consideration. 09:3115 Q. Okay. 09:3116 A. I don't remember that ever being 09:3117 anything different. 09:3118 Q. Tell me a bit about your role now. 09:3119 What do your job duties entail today? 09:3220 A. Well, now I'm still -- I still have 09:3221 something of a regulatory bent, I guess. But 09:3222 in governance, we have a series of processes to 09:3223 consider new pieces of legislation or other 09:3224 issues that are facing the association like 09:3225 should we do something different about how 09:32


9/119

Davi d Ber st


9 ( Pages 30 t o 33)

Page 301 transfer rules work? Should we have cost of 09:322 attendance for some or all student athletes? I 09:323 facilitate and work with the various groups 09:324 that can bring that to the appropriate 09:325 legislative processes to have a vote of either 09:326 membership or board of directors or legislative 09:327 council or leadership council. 09:328 I work with over a hundred 09:329 committees that are made up of groups of 09:32

10 individuals from all of our institutions in 09:3311 pursuing their own agendas. So I'm supposed to 09:3312 know all of those things and figure out how to 09:3313 get them resolved reasonably from the 09:3314 perspective of whoever it is that's advocating 09:3315 a particular position. 09:3316 Q. Does that involve, in your position, 09:3317 drafting new legislation? 09:3318 A. Hopefully, no, because I usually 09:3319 have somebody that will do it. 09:3320 Q. Okay. 09:3321 A. But I certainly review it and am 09:3322 involved in helping with intent or rationale 09:3323 often. 09:3324 Q. I gather that when there are issues 09:3325 of potential new legislation, you have staffers 09:33

Page 321 A. That's in part, yes, as well as 09:342 conferences and even the board of directors 09:343 itself. 09:344 Q. Legislatively, talk me through the 09:345 process by which new rules, new bylaws, new 09:346 whatevers are approved so that they are 09:357 effective and enforceable by NCAA? 09:358 MR. KOWALSKI: I object to form. 09:359 Just I don't know if there's a distinction 09:35

10 between rules, bylaws, and whatever, but 09:3511 you might want to take it -- 09:3512 MR. HAVERSTICK: Sure. 09:3513 MR. KOWALSKI: If there's a 09:3514 difference, you might -- 09:3515 A. There are, as far as legislation is 09:3516 concerned, the bylaws, there are two processes. 09:3517 One is called an autonomy process whereby five 09:3518 conferences within the association, the highest 09:3519 resource conferences have an explicit set of 09:3520 areas where they can draft legislation for 09:3521 consideration. And the annual deadline to 09:3522 submit that kind of legislation is September 1. 09:3523 And thereafter, there's an amendment 09:3524 period involving those same five conferences, 09:3625 and then that January convention, there is a 09:36

Page 311 who are busy at your direction writing 09:332 potential new legislation? 09:333 A. Yes. 09:334 Q. And then you -- but you ultimately 09:335 have to sign off on it and you would be 09:336 generally aware of what they're doing and 09:337 interacting with them? 09:338 MR. KOWALSKI: Objection to form. 09:339 A. I don't really have a sign off 09:34

10 because there may well be differences of 09:3411 opinion about whether something should go 09:3412 forward or what form it ought to take. I try 09:3413 to help, nudge, or push or influence, but it's 09:3414 usually not my final decision on what it is 09:3415 that's going to go up for a vote. It's going 09:3416 to be the sponsor of the actual initiative. 09:3417 Q. That's whose decision it is to 09:3418 determine whether a legislative issue is going 09:3419 to be pushed? 09:3420 A. Yes. 09:3421 Q. And those sponsors come either from 09:3422 the institution level or the committee level, 09:3423 those are people who are sort of granular in 09:3424 dealing with their own -- 09:3425 MR. KOWALSKI: Objection to form. 09:34

Page 331 business session for discussion first of 09:362 whatever pieces of legislation are to be 09:363 considered and then actual voting by 65 schools 09:364 and 15 student athletes. That would be bylaws 09:365 that are explicit to them. 09:366 Bylaws that are not explicit to the 09:367 autonomy group go through a similar deadline of 09:368 September 1 for submission. Then an amendment 09:369 period. Ultimately, a discussion forum in 09:36

10 January at the NCAA convention, and then voting 09:3611 by a group called the NCAA -- the Division I 09:3612 council, which is a 40-member representative 09:3613 group from the 32 conferences, adding faculty 09:3614 representatives and student athletes and 09:3715 commissioners to that group who would vote by 09:3716 majority in April on whether those pieces of 09:3717 legislation would be adopted effective the 09:3718 following fall. Both areas would both usually 09:3719 be effective the following fall. 09:3720 There are sometimes constitutional 09:3721 provisions that would be submitted often by a 09:3722 group like the board of directors or even 09:3723 pursued by the executive committee of the 09:3724 association, which is a broader, overarching 09:3725 group. And those typically, if they go forward 09:37


10/119

Davi d Ber st


10 ( Pages 34 t o 37)

Page 341 as a change in the constitution, would require 09:372 a vote, two-thirds majority vote of all 09:373 Division I members, 350-ish or so plus 32 09:374 conferences at convention assembled in January. 09:385 Q. Is that subject to veto? 09:386 A. Yes, it can be rescinded in effect 09:387 by two-thirds majority of the membership during 09:388 a 60-day period after those matters are 09:389 adopted. 09:38

10 The autonomy legislation is not 09:3811 subject to recision because all the 09:3812 institutions actually vote on those. 09:3813 Q. What five conferences, by the way, 09:3814 are implicated? You mentioned there were five. 09:3815 A. The Atlanta Coast Conference, Big 09:3816 Ten Conference, Big 12 Conference, Pac-12 09:3817 Conference, and the Southeastern Conference. 09:3818 Q. Is the -- I'm calling it a veto, 09:3819 that may not be -- and correct me if that's not 09:3820 the right term, I'm analogizing it to the 09:3821 legislative process -- is there the ability for 09:3822 a veto override? 09:3823 MR. KOWALSKI: Objection to form. 09:3824 A. It's now a recision process. Yes, 09:3825 for a bylaw provision that's adopted by the 09:39

Page 361 use it. All right. That was going to be one 09:402 of my questions. '11/'12 is no longer current? 09:403 A. It's only current for -- 09:404 Q. That year? 09:405 A. -- the period it indicates, and 09:406 there are adjustments that you'll see in gray 09:407 shades each year. 09:408 Q. Okay. 09:409 A. And that's the change from the year 09:40

10 before. 09:4011 Q. In general, is the Division I manual 09:4012 where one would go as the resource to find any 09:4013 NCAA Division I bylaw, rule, regulation, et 09:4014 cetera? 09:4015 MR. KOWALSKI: Objection to form. 09:4016 A. The -- I would say the online manual 09:4017 is the one that controls because it's always 09:4018 up-to-date. It simply depends on the question 09:4119 whether you go there or probably your first 09:4120 stop would be with individuals on the staff who 09:4121 provide interpretations. 09:4122 Q. I don't think I asked the question 09:4123 correctly. What I'm driving at is are there 09:4124 sources of jurisprudence that control NCAA life 09:4125 outside of -- and I'm touching Berst 1 here -- 09:41

Page 351 council, and I don't think you can get there 09:392 from either the constitutional provisions or 09:393 the autonomy provisions because those actually 09:394 involve a vote of all of the members at the 09:395 outset. 09:396 So I think the next step from there 09:397 if somebody's adequately upset would be courts. 09:398 (Berst Exhibit Number 1 marked for 09:399 identification.) 09:39

10 Q. Okay. I'm going to mark, it's just 09:3911 on the table, so I see it there and I'm going 09:3912 to reference it quickly. There's -- on the 09:3913 table right now is the Division I manual for 09:3914 2011/'12. I'll mark that as Berst 1. I'm not 09:3915 sure we're going to get to the point we're ever 09:3916 going to actually look at it, but it's here so 09:3917 I thought of something to ask. 09:3918 MR. KOWALSKI: And obviously, if you 09:3919 ever want to look at it -- 09:3920 MR. HAVERSTICK: Yeah. 09:4021 A. And let me say that everything I 09:4022 just told you would be in NCAA '13/'14. So 09:4023 everything in '11/'12 will be different than 09:4024 what I just said. 09:4025 Q. Okay. So we'll mark it. We may not 09:40

Page 371 outside of the manual, whether it's online or 09:412 the paper version? And assuming it's the 09:413 up-to-date version. 09:414 MR. KOWALSKI: Object to form. 09:415 A. And I don't know what you mean by 09:416 your question. Are there areas of 09:417 jurisprudence? What are you saying? 09:418 Q. If I wanted to exhaust the universe 09:419 of rules and regulations applicable to NCAA 09:41

10 Division I life, are there sources outside of 09:4111 Division I manual that I would need to 09:4112 reference? 09:4113 MR. KOWALSKI: Objection. 09:4114 A. There would be numerous of those. 09:4215 There would be all of the rules books, for 09:4216 example. This says follow the rules books, and 09:4217 you have another place to go find out football 09:4218 fields are a hundred yards long. 09:4219 Q. Okay. 09:4220 A. You have health and safety issues 09:4221 and procedures that are put in place or are 09:4222 required, and you wouldn't have all of those 09:4223 set forth in there. You would have a series of 09:4224 policies adopted by the executive committee. 09:4225 For example, there are association-wide issues 09:42


11/119

Davi d Ber st


11 ( Pages 38 t o 41)

Page 381 that you wouldn't find in the NCAA manual but 09:422 are controlling because in their duties, they 09:423 have the authority to pass policies that affect 09:424 association-wide issues. 09:425 You have a whole set of policies 09:426 adopted by the board of directors that would 09:427 relate to advertising, you know, maybe even the 09:428 price of a final four ticket or something that 09:429 you wouldn't find there. So there are a lot of 09:43

10 other sources to go to. 09:4311 Q. Are those other sources external to 09:4312 the Division I manual referenced in the 09:4313 Division I manual somewhere, to your knowledge? 09:4314 A. In some fashion, yes. 09:4315 Q. So by studying the Division I 09:4316 manual, if I needed to learn a particular rule, 09:4317 even if the rule itself wasn't in the manual, 09:4318 likely I would find a reference to a document 09:4319 that I could go get from NCAA? 09:4320 MR. KOWALSKI: Objection to form. 09:4321 A. I think that's right. I think you 09:4322 would be able to find authority or information 09:4323 that would lead you to that information. 09:4324 Q. Okay. 09:4325 A. And you also have then staff 09:43

Page 401 MR. KOWALSKI: Objection to form. 09:452 A. I wish that were the case. You 09:453 know, this is probably only the fifth 09:454 deposition in the last couple of months. So as 09:455 you can imagine, I deal with Donald on a whole 09:456 host of matters related to the impact on 09:457 Division I and various areas. So you'll have 09:458 to work it how I distinguish those. 09:459 Q. I get that. You're not reporting up 09:45

10 to him, though, in a legal capacity? 09:4511 A. I am not, no. Well, I guess the 09:4512 answer to that is no. I'm not a lawyer. I 09:4513 have opinions often that I'll share. 09:4514 Q. I'd love to hear them. 09:4515 A. Well, you may. 09:4516 Q. I might. I hope I do. 09:4517 MR. KOWALSKI: Just so the record is 09:4518 clear, I assume you've been reporting to 09:4519 Donald in that capacity since he became 09:4520 executive vice president of corporate -- of 09:4521 policy, law, and governance? 09:4522 A. Yes. Prior to that, I reported to 09:4623 Bernard Franklin. I don't know what the timing 09:4624 is of these issues but ... 09:4625 Q. Let's get into that. By the way, 09:46

Page 391 resources to help you identify where those 09:432 would be as well. 09:433 Q. Who -- do you have a direct-line 09:434 report? 09:435 A. Yes. 09:436 Q. Both up and down? 09:437 A. Up to Donald Remy. Down to Jackie 09:448 Campbell, who's the director of Division I. 09:449 Q. You report to Mr. Remy in his role 09:44

10 as general counsel or in his role as executive 09:4411 vice president? 09:4412 A. As executive vice president for law, 09:4413 policy, and governance. So the governance 09:4414 piece of that would involve me. 09:4415 Q. Okay. That answered my question. 09:4416 He has separate roles depending on what issue 09:4417 we have to be -- 09:4418 A. I agree with that, yes. 09:4419 MR. KOWALSKI: Objection to form. 09:4420 Q. And in your -- fair to say that in 09:4421 your normal interaction with Mr. Remy in the 09:4422 chain of command or the hierarchy, you're 09:4423 interacting with him in his capacity as having 09:4424 oversight of governance issues as opposed to 09:4425 his general counsel or chief counsel role? 09:45

Page 411 when you were in enforcement, to whom did you 09:462 report up to in enforcement? 09:463 A. I reported to the executive 09:464 directors only, so that would have been Walter 09:465 Byers, Dick Shultz, Ced Dempsey, and then I got 09:466 out of enforcement at that point. 09:467 Q. Does enforcement -- I know the names 09:468 are going to be different, but does 09:469 enforcement, the head of enforcement have a 09:46

10 similar reporting up structure now, if you 09:4611 know? 09:4612 A. I believe they reported to Jim Isch 09:4613 who would have been an executive vice president 09:4614 is my understanding. 09:4615 Q. Is enforcement out of your direct 09:4616 chain of command or structure? They don't 09:4617 report up to you? 09:4618 A. They do not. And I've intentionally 09:4619 in 15 years tried to distance myself as much as 09:4720 I can, although someone will come to me and ask 09:4721 about a procedural issue from time to time. 09:4722 Q. Is that because you have been, as a 09:4723 long-tenured NCAA employee -- let me ask, no, 09:4724 that's the wrong way I want to ask it. 09:4725 You acknowledge that you are a 09:47


12/119

Davi d Ber st


12 ( Pages 42 t o 45)

Page 421 long-tenured NCAA employee? 09:472 A. Yes. 09:473 MR. KOWALSKI: Objection to form. 09:474 Q. You have presumably a wealth of 09:475 institutional knowledge that I imagine a lot of 09:476 folks there don't have? 09:477 A. I would be so bold as to say that, 09:478 yes. 09:479 Q. Do you have in your belief a -- this 09:47

10 will draw an objection -- a formidable 09:4711 knowledge of the NCAA bylaws and regulations? 09:4712 MR. KOWALSKI: I don't want to 09:4713 disappoint, so objection. 09:4814 Q. It's a compliment. 09:4815 MR. KOWALSKI: And I'm not objecting 09:4816 to the compliment. 09:4817 A. I would say in the last 15 years, I 09:4818 would not have followed as carefully all of the 09:4819 changes for the first however many years I 09:4820 wrote many of the things that are contained. 09:4821 So I still have quite a bit of 09:4822 knowledge. But, you know, I could -- you could 09:4823 catch me on some phrase or change that has 09:4824 occurred that I missed. 09:4825 Q. That was going to be one of my 09:48

Page 441 and I believe that my view that I could be of 09:492 assistance at that point was accepted. 09:493 Q. We'll talk -- thank you for that. 09:494 And we'll talk about that. I'm trying to keep 09:495 a logical progression because otherwise I'll 09:496 fly off my axis, and we'll be here all day and 09:497 none of us want that. 09:498 Let me direct your attention to late 09:509 2011, and naturally we're now going to talk 09:50

10 about Penn State and Jerry Sandusky. 09:5011 When did you come to learn about the 09:5012 Jerry Sandusky issue at Penn State? 09:5013 A. I'll have trouble with times, dates, 09:5014 and those kinds of things. My impression and 09:5015 my recollection now is just like everyone else, 09:5016 you know, based on news accounts related to it 09:5017 and just almost being inundated by articles and 09:5018 comments and commentary. 09:5019 Q. Do you recall whether anyone in 09:5020 particular at NCAA alerted you to the issue? 09:5021 A. At that point, no, I don't believe 09:5022 so. 09:5123 Q. As we sit here today, you recall 09:5124 that -- if I tell you that Jerry Sandusky was 09:5125 charged in early November 2011, you'd agree 09:51

Page 431 questions. Many of the rules and policies and 09:482 bylaws still in force were ones that you wrote? 09:483 A. Yes. 09:484 Q. And if we ever have had to, you 09:485 could identify for us which ones you wrote? 09:486 A. Yes. 09:487 Q. Fair to say that for the ones you 09:488 didn't write, you had at least some level of 09:489 input on? 09:48

10 A. No, not in all instances. 09:4811 Q. Okay. 09:4812 A. I'm sometimes aware of changes, but 09:4813 not that I participated in. 09:4914 Q. Is your institutional knowledge, if 09:4915 you know, the reason that -- I know we're 09:4916 skipping ahead, so I'll ask the question and we 09:4917 can go back to where I was. 09:4918 Is your institutional knowledge the 09:4919 reason, if you know, that you were included in 09:4920 conversations and negotiations with Gene 09:4921 Marsh -- 09:4922 MR. KOWALSKI: Objection to form. 09:4923 Q. -- regarding the consent decree? 09:4924 A. That was my intention. I attempted 09:4925 to insert myself in the process at that point, 09:49

Page 451 with me or have no reason to think I'm fooling 09:512 you, at least? 09:513 A. I'm willing to accept your timeline. 09:514 Q. Okay. 09:515 A. I can't do any better. 09:516 Q. That's fine. Yeah, not a trick. 09:517 So if we accept that it was early 09:518 November 2011 when Jerry Sandusky was charged 09:519 criminally, would that be about when you think 09:51

10 you learned of the issues? 09:5111 A. Whenever all of the major newspapers 09:5112 and others began to cover it, I'd be, yes, I 09:5113 would know about it. 09:5114 Q. Now, as specifically as you can 09:5115 recall, and I can show you documents to help if 09:5116 we think it would help, what was -- what were 09:5117 the action steps inside NCAA once the 09:5118 institution became aware of this issue? 09:5119 A. I don't know the answer to that. 09:5220 Q. Do you know the answer with respect 09:5221 to your involvement in any particular meetings, 09:5222 discussions, et cetera? 09:5223 A. Yeah, I was invited to a meeting of 09:5224 the, at least, vice presidents or what we 09:5225 probably would have called presidents' cabinet 09:52


13/119

Davi d Ber st


13 ( Pages 46 t o 49)

Page 461 at the time sometime in November, and I believe 09:522 that's the first I knew I was going to be 09:523 involved in some conversation. 09:524 Q. If I told you that there was -- and 09:525 by the way, for any of these things that I'm 09:526 looking at right now, if you'd like to see them 09:527 to help refresh your memory -- 09:528 A. I will. 09:529 MR. HAVERSTICK: Well, let's do 09:52

10 this. Why don't we mark Tab 6 as Berst 2. 09:5211 I'm wrong. I'm wrong. Tab 5 as Berst 2. 09:5312 I apologize. 09:5313 (Berst Exhibit Number 2 marked for 09:5314 identification.) 09:5315 Q. Now, what I've handed you is an 09:5316 email from Mark Emmert to Diane Young. You are 09:5317 carbon copied on this email, along with a few 09:5318 other folks, and it regards a meeting that 09:5319 Dr. Emmert desires to have on November 16th, 09:5420 2011, to discuss Penn State. And that's a 09:5421 paraphrase. 09:5422 Does this email jog your memory 09:5423 about when you may have had a first meeting 09:5424 with folks? 09:5425 A. No, it doesn't. I mean, I assume 09:54

Page 481 as one for NCAA's enforcement processes to get 09:552 involved in? 09:553 MR. KOWALSKI: Objection to form. 09:554 A. The -- and I don't know whether -- I 09:555 can't remember how many meetings there were, if 09:566 there was one or if it were two. There must 09:567 have been a couple right around that same time. 09:568 But certainly one of the considerations was, 09:569 from his perspective, whether the enforcement 09:56

10 program ought to be employed to become involved 09:5611 in this matter. 09:5612 Q. Is it accurate to say that early on, 09:5613 Dr. Emmert advocated a role for NCAA in taking 09:5614 action with respect to Penn State? 09:5615 MR. KOWALSKI: Objection to form. 09:5616 A. From my perspective, he believed 09:5617 that the NCAA had to be responsive in some 09:5618 manner to the Penn State matter. We were being 09:5619 inundated by both information and probably 09:5620 individuals saying the NCAA has to act in some 09:5621 fashion. 09:5722 Q. Was it your view in November of 2011 09:5723 that NCAA had to act? 09:5724 MR. KOWALSKI: Objection to form. 09:5725 A. No, it was not. 09:57

Page 471 it's going to be when they say they're going to 09:542 set it up. What I said before was I got 09:543 invited to a meeting, so this is the beginning 09:544 of that invitation, apparently. 09:545 Q. Okay. Do you recall specifically or 09:546 generally, I'll take either one, what was 09:547 discussed at the first meeting you had on the 09:548 Penn State issue? 09:549 MR. KOWALSKI: And you can answer 09:54

10 the question. But in doing so, please 09:5411 don't reveal any privileged communications 09:5412 with legal counsel that may have occurred 09:5413 during that meeting. 09:5414 A. To me, that meeting was an effort by 09:5415 Mark Emmert to begin to think through what the 09:5516 appropriate response of the NCAA would be to 09:5517 the Penn State matter, which according to at 09:5518 least published reports, was -- seemed to be as 09:5519 serious a matter as he could conjure up at 09:5520 least involving athletic personnel. And he was 09:5521 trying to determine what the appropriate 09:5522 response and/or process should be for him to 09:5523 move forward. 09:5524 Q. Do you recall if Dr. Emmert at this 09:5525 meeting or thereabouts characterized this issue 09:55

Page 491 Q. Could you explain? 09:572 A. Well, the -- at that juncture, 09:573 the -- there were, you know, a variety of 09:574 possible ways to react. But I was opposed to 09:575 the notion that the enforcement program should 09:576 become involved. I believed that our processes 09:577 were such that if you were to attempt to 09:578 address Penn State through the normal 09:579 enforcement process that involves the things I 09:57

10 described before, direct interviews and 09:5711 information, which I thought would be obviously 09:5812 complicated and prohibited for a period of time 09:5813 because of, you know, potential criminal 09:5814 actions and matters and the fact that I was 09:5815 trying to identify appropriate bylaws that 09:5816 might come into play, institutional control was 09:5817 discussed, as well as the overarching 09:5818 principles of integrity and conduct of 09:5819 intercollegiate athletics programs, I did not 09:5820 believe that was the most appropriate way to 09:5821 try to move this forward. 09:5822 Q. What did you believe was the most 09:5823 appropriate way to move it forward? 09:5824 MR. KOWALSKI: At this time? 09:5825 MR. HAVERSTICK: Sure. 09:58


14/119

Davi d Ber st


14 ( Pages 50 t o 53)

Page 501 A. I don't know that at that time I 09:582 articulated what my own view was. I think I 09:593 simply objected to the notion that the 09:594 enforcement program was a viable option at that 09:595 point. 09:596 Q. Is that because your belief at the 09:597 time was that the enforcement process did not 09:598 have, for lack of a better term, jurisdiction 09:599 over this matter? 09:59

10 MR. KOWALSKI: Objection to form. 09:5911 A. I have some trouble using the word 09:5912 jurisdiction because in a technical sense, the 09:5913 response back to me on those kinds of issues 09:5914 was that, of course, there's jurisdiction. 09:5915 There's certainly potential jurisdiction under 09:5916 the rules that I've already made reference to, 09:5917 whether it's the constitutional provision or 09:5918 institutional control. 09:5919 I had not -- I had chosen at least 09:5920 over the years not to process through the 10:0021 infractions process something quite the way it 10:0022 was being described. I -- so I expressed 10:0023 adamantly that I didn't think that was the way 10:0024 to go. I think, in fact, I probably was the 10:0025 only one who spoke in such negative terms. I 10:00

Page 521 Now, what I was not willing to give 10:012 full credit to and part of the response back 10:013 was that this is so heinous and so undermines 10:014 general intercollegiate athletics generally, 10:025 that it impacts the whole association. It's 10:026 not something that just occurred as a criminal 10:027 act involving an individual and even where an 10:028 institution may have been seen as not 10:029 adequately resolving or addressing that unique 10:02

10 situation, this was one where through the 10:0211 actions and inactions of not only athletics 10:0212 personnel but maybe even administrators, you 10:0213 had a sanctuary for a pedophile to do what that 10:0214 person did, and that is bigger than just a pure 10:0215 institutional control kind of issue. 10:0216 In fact, it simply undermines the 10:0217 athletics because you have a program 10:0218 potentially that has such unconditional support 10:0219 by a culture of people that would permit this 10:0320 kind of thing to go on unabated, and I could 10:0321 see that as a larger issue. And so I was 10:0322 willing to accept that you could address these 10:0323 kinds of issues if, in fact, you want to take 10:0324 that issue on. 10:0325 If you have empowered athletic 10:03

Page 511 know Julie also pointed out the practical 10:002 issues that you would encounter if you were to 10:003 take it that way, but I was much more direct on 10:004 those points. 10:005 I can't say that it had no 10:006 jurisdiction. I just hadn't done it that way 10:007 and didn't believe that was appropriate. 10:008 Q. Couple follow-up questions from 10:009 that. 10:00

10 Did you view this as a criminal, not 10:0011 an athletic matter, at least initially? 10:0012 MR. KOWALSKI: Objection to form. 10:0013 A. Well, the starting point was, for 10:0014 me, that -- and often in other cases that I was 10:0115 familiar with before that I might have 10:0116 encountered, you have a criminal issue and we 10:0117 all ought to cooperate as best we can with the 10:0118 criminal processes and assure that there might 10:0119 be, you know, appropriate actions taken by 10:0120 them. But we needed to let those take place 10:0121 before assessing whether there was something 10:0122 else, and if we were to investigate, probably 10:0123 investigate other things that might apply to 10:0124 such a case other than this so-called 10:0125 pedophilia. 10:01

Page 531 programs that are too big to fail from the 10:032 institution's perspective, and is the tail 10:033 wagging the dog? And this was a way to get at 10:034 that culture and change it, go for it. I guess 10:035 you could do that. I wasn't in on believing 10:036 that was the appropriate way to get at it. 10:037 Q. Do you believe that today, that the 10:038 NCAA appropriately should be regulating the 10:039 bigger institutional issues that don't 10:03

10 necessarily involve athletics? 10:0411 MR. KOWALSKI: Objection to form. 10:0412 A. I sincerely wish that were the case. 10:0413 I would say that we have not been successful in 10:0414 demonstrating or even gaining support for 10:0415 attacking that further. This was a start in 10:0416 that direction. And if it had been more 10:0417 successful in shifting the culture at Penn 10:0418 State, then I would have been in on helping to 10:0419 develop additional rules actually that more 10:0420 explicitly would say that that's an appropriate 10:0421 function and duty of the association. 10:0422 And I think most of America would 10:0423 agree with that. 10:0424 Q. Do you -- as I heard your answer, is 10:0425 it your view that this effort was not 10:04


15/119

Davi d Ber st


15 ( Pages 54 t o 57)

Page 541 successful in accomplishing those goals and, 10:052 therefore, it's, in your view, not an area that 10:053 at this time NCAA should be pursuing absent 10:054 some change in the bylaw structure? 10:055 MR. KOWALSKI: Well, objection to 10:056 form. I mean, he said what he said. 10:057 MR. HAVERSTICK: I know. 10:058 Q. But you can answer. This is a 10:059 philosophy board. 10:05

10 MR. KOWALSKI: It's a deposition. 10:0511 But go ahead. 10:0512 A. I, so far, have not been able to 10:0513 identify adequate support for the national 10:0514 organization taking on that kind of a role more 10:0515 generally. And so, you know, I don't -- at 10:0516 this point, don't see that developing. I 10:0517 haven't seen any drafts of additional 10:0518 legislation that would head in that direction. 10:0519 As to whether this was successful, 10:0620 you know, I see the -- what I hope is a 10:0621 minority view from plaintiffs' attorneys and 10:0622 other very vocal individuals around Penn State 10:0623 who simply are defending the previous culture 10:0624 and saying, NCAA, you shouldn't have ever done 10:0625 anything. You should not attack our program 10:06

Page 561 am, that it had full -- he had full authority 10:082 to try to start enforcement process that the 10:083 executive committee had full authority to act 10:084 under matters that are fundamental to the 10:085 association. 10:086 And that brings us to here today, 10:087 unfortunately. 10:088 Q. Given your institutional knowledge, 10:089 is it your view that new rules or bylaws would 10:08

10 have to be adopted for NCAA to undertake a 10:0811 process a second time to deal with -- to 10:0812 undertake a process similar to the one that it 10:0813 did with Penn State to encompass all of those 10:0814 broader issues? In other words, are the rules 10:0815 structured right now -- 10:0916 A. I get the question. 10:0917 Q. Yeah, I'm not -- 10:0918 MR. KOWALSKI: I object to form. 10:0919 A. Well, no. The executive committee 10:0920 does have the authority to do it. They could 10:0921 do it again tomorrow. I think the issue for 10:0922 the executive committee is whether there is 10:0923 broader support, broad support within the 10:0924 membership to attempt to do that. And were 10:0925 that to be an initiative to be undertaken, I 10:09

Page 551 which is supported unconditionally. I think 10:062 that's just wrong footed, and I believe -- I 10:063 hope there's actually a majority of the people 10:064 in the valley who are thinking this is the 10:065 dumbest thing I've ever seen, and everybody 10:066 ought to be moving forward, and what Erickson 10:067 did was give everybody a chance to do that in 10:068 moving forward. 10:069 And there have been what I hope is a 10:07

10 minority group that simply won't accept that 10:0711 which, in my mind, is proof of the problem with 10:0712 the culture in the first place because I don't 10:0713 ascribe proper motivations to the people who 10:0714 are involved in this case, but I think there 10:0715 were a whole lot of other unsuspecting and just 10:0716 good people, sports fans, who accepted anything 10:0717 that was said by Joe Paterno as the answer to 10:0718 any question. And I knew Joe and understand 10:0719 how that viewpoint could take place. But the 10:0720 failure is in the failure to act appropriately 10:0721 when the time came for that to occur. 10:0722 So that had to change in some 10:0723 fashion. I believe Mark Emmert did the right 10:0824 thing to try. Even though I disagreed with the 10:0825 process in the beginning, I would testify, and 10:08

Page 571 would want to write some additional language 10:092 and legislation to clarify and make more direct 10:093 that authority so that I -- so I know that 10:094 there's membership support for it. 10:095 But the executive committee had full 10:096 authority, and I think they could do it again. 10:097 Q. You would, if you controlled that 10:098 process, write legislation that would make more 10:099 explicit the authority to do what was done in 10:10

10 Penn State's case; is that a fair summation of 10:1011 what you said? 10:1012 MR. KOWALSKI: Object to form. 10:1013 A. I don't want to agree to whether 10:1014 something has to be more explicit or not 10:1015 because I don't think so. But I would want to, 10:1016 you know, try to develop more language around 10:1017 what an out-of-control athletics culture is and 10:1018 how it becomes too big and overwhelms the 10:1019 academic mission of the institution and the 10:1020 integrity of intercollegiate athletics. So I'd 10:1021 try to develop more language to help in that 10:1022 regard. Probably make it broader than just 10:1023 this unprecedented issue that I don't think 10:1024 anyone in America could say should have gone 10:1025 on. 10:11


16/119

Davi d Ber st


16 ( Pages 58 t o 61)

Page 581 Q. When you expressed your views early 10:112 on about the reaction from NCAA, I heard you 10:113 testify that you were a minority, maybe a 10:114 minority of one; is that right? 10:115 A. I said that I think I was the only 10:116 one who really spoke out vocally and directly. 10:117 Q. Were there others who felt as you 10:118 did but were not as vocal? 10:119 MR. KOWALSKI: Objection. 10:11

10 A. The only person that spoke in the 10:1111 meeting that I recall that was really in 10:1112 response to how would you do this if we sent 10:1113 your investigators out was Julie Roe. I don't 10:1114 recall anyone else actually speaking up and 10:1115 saying we can't, we shouldn't do this. 10:1116 Q. Did anyone privately say that to 10:1117 you? 10:1118 MR. KOWALSKI: Objection. 10:1119 A. I don't know. I can't recall 10:1120 talking about this with others. I don't think 10:1221 so. 10:1222 Q. Do you recall talking to anyone 10:1223 outside of NCAA's structure about these issues 10:1224 and expressing any concerns? 10:1225 A. Well, sure. I don't mind -- I mean, 10:12

Page 601 A. Yeah, I think -- well, in that 10:132 regard, I think I have to limit it to Mark. 10:133 Q. That's fine. 10:134 I can ask it this way: Setting 10:135 aside -- 10:136 A. I would say to you that didn't 10:137 persuade me. I think I know as much about this 10:148 or more than anyone who was in the room. So 10:149 there were rebuttals that came. 10:14

10 Q. I'm asking whether, in your view, 10:1411 Mark Emmert was the lead most vocal, most 10:1412 strident proponent of no, we need to plot, we 10:1413 need to move forward? 10:1414 A. He was the proponent of it is 10:1415 essential that we find a way to address this 10:1416 issue. 10:1417 Q. And he viewed that as a matter of 10:1418 the NCAA's ability to be a real regulatory 10:1419 force, is that what you were saying? 10:1420 MR. KOWALSKI: Objection to form. 10:1421 Q. You can answer. 10:1422 MR. KOWALSKI: Sure. But he already 10:1423 did. He can do it again. 10:1424 A. I think it was framed in the -- in a 10:1425 manner to indicate that there was sufficient 10:14

Page 591 it's never been a secret. So anybody I've 10:122 talked to about these, I would have said I 10:123 thought it was not the way to go in the 10:124 beginning, and I'm now convinced and will 10:125 testify. I mean, I know this stuff better than 10:126 most and can say unequivocally that the 10:127 eligibility committee had authority to do this. 10:128 But, yes. Anyone who would have 10:129 asked me would have probably heard some 10:12

10 reference to me not being onboard in the 10:1211 beginning. 10:1212 Q. We may get back to that later on. 10:1213 There was a rebuttal to your 10:1214 expressed view, correct? 10:1315 A. Well, there were lots of rebuttals. 10:1316 But I think the overarching view of Mark Emmert 10:1317 was that he needed to attempt to pursue this 10:1318 matter further, that there were integrity 10:1319 issues at stake with the association on this 10:1320 matter. 10:1321 Q. Was Mark Emmert the lead voice in 10:1322 rebuttal to your concerns? 10:1323 MR. KOWALSKI: I just caution you 10:1324 not to reveal any privileged communications 10:1325 about these meetings. 10:13

Page 611 outrage and concern around the country that it 10:152 was imperative for the NCAA to evaluate every 10:153 possible avenue to address this issue. 10:154 Q. Now, am I right that the backdrop of 10:155 these early conversations were media reports, 10:156 inquiries asking what is the NCAA going to do 10:157 about this? 10:158 MR. KOWALSKI: Objection to form. 10:159 A. I don't know the full scope of 10:15

10 information available. For me, it was the 10:1511 public reports. So I knew of those and I had 10:1512 seen them. But I don't know anything about 10:1513 other conversations that may have taken place 10:1514 or calls that others may have received about 10:1515 it. I don't recall people calling me saying 10:1516 anything. I think I was just reading it. 10:1517 Q. If you know, in expressing his 10:1518 views, did Dr. Emmert indicate that the image 10:1519 of NCAA could be tarnished somehow if it did 10:1620 not act in this case? 10:1621 MR. KOWALSKI: Objection to form. 10:1622 A. The -- I would object to the way you 10:1623 put it. I think he thought it important for 10:1624 the NCAA to demonstrate that it has the ability 10:1625 to address this kind of matter. 10:16


17/119

Davi d Ber st


17 ( Pages 62 t o 65)

Page 621 Q. I want to ask, I suppose, a related 10:162 question. At about this time, was NCAA in the 10:163 process of rewriting many of its regulations 10:164 and bylaws, including on enforcement and 10:165 including on infractions? 10:166 MR. KOWALSKI: Objection to form. 10:167 A. At this juncture, it had followed a 10:168 presidential retreat, and there were several 10:169 working groups that were -- that had various 10:16

10 assignments. One was on enforcement related 10:1711 to, you know, re-categorizing the levels of 10:1712 violations to make more clear how -- or how 10:1713 serious particular breaches of NCAA rules might 10:1714 be considered. 10:1715 There was also an effort to 10:1716 so-called deregulate or shift some of the 10:1717 responsibility for interpreting how to apply 10:1718 NCAA rules back to institutions and conferences 10:1719 from the national organization, so there was 10:1720 sort of a decentralizing effort among the 10:1721 committee. But those were very preliminary at 10:1722 this point. When these meetings took place, we 10:1723 were 2 months following the -- no, not 2 10:1724 months, August to -- we were closing in on 4 or 10:1725 5 months since that retreat had taken place. 10:18

Page 641 subjects for follow-up. So one of those was an 10:342 effort to evaluate the NCAA manual and figure 10:343 out how many pages we could take out of the one 10:344 you touched earlier and either reassign 10:345 responsibility for those rules to institution's 10:346 autonomy or conferences and otherwise simplify 10:347 the manual. 10:348 Q. What were the other four initiatives 10:349 that came out of the -- 10:34

10 A. You know, I knew you were going to 10:3411 ask me that. One was student athlete 10:3412 well-being. One was what we just mentioned, 10:3413 the rules working group. One was related to 10:3514 use of the resources. 10:3515 I think there was one related to 10:3516 academics as well that had been assigned 10:3517 primarily to an existing group. And another 10:3518 one, which I don't recall off the top of my 10:3519 head. 10:3520 Q. Do you recall if it has anything 10:3521 apropos to anything that we're talking about 10:3522 today with respect to enforcement, sanctions, 10:3523 et cetera? 10:3524 MR. KOWALSKI: Objection to form. 10:3525 A. Oh, good point. The one I forget. 10:35

Page 631 MR. KOWALSKI: Matt, if we're going 10:182 to go into the working group stuff for a 10:183 while, let us know when we can take a break 10:184 in the next few minutes. We've been going 10:185 over an hour. Just want to take a bathroom 10:186 break. 10:187 MR. HAVERSTICK: Yeah, that's fine. 10:188 Is that convenient for you? 10:189 THE WITNESS: That's fine. 10:18

10 (A short break was had.) 10:1811 MR. HAVERSTICK: Back on the record. 10:3312 Q. I'd like to ask a couple of 10:3313 questions about the presidential retreat that 10:3314 you mentioned. That happened in -- 10:3315 A. August of 2011. 10:3316 Q. Okay. 10:3317 A. Maybe 9, 10. 10 was one of the 10:3318 days. I'm not sure which it is. 10:3319 Q. If I'm capturing this correctly, as 10:3320 a result of, at least in part, that retreat, 10:3321 there were then efforts to revise or draft new 10:3322 legislation policies, et cetera? 10:3423 A. Well, there were several initiatives 10:3424 that resulted in, I think, five working groups 10:3425 being established of presidents on various 10:34

Page 651 Yes, it was one that was to review both to 10:352 clarify current NCAA processes and to rewrite, 10:363 I think, the penalties in a manner that could 10:364 be better understood than we had already made a 10:365 shift from -- kind of going the long route -- 10:366 but secondary and major infractions and 10:367 presumptive penalties, which I wrote all of, to 10:368 a more simple list, I guess, of all of the same 10:369 penalties but without those kinds of words so 10:36

10 nobody got confused about what's presumptive 10:3611 mean. 10:3612 And then into levels, four levels of 10:3613 penalties and characterization of violations 10:3614 that could be set forth in Level 1, 2, 3, or 4 10:3615 that would have something like a schedule of 10:3616 penalties that might apply to those kinds of 10:3617 matters. 10:3718 Q. Who had responsibility following the 10:3719 presidential session to work on that rewrite? 10:3720 A. There -- I don't recall all of the 10:3721 members of the committee. Ed Ray who was the 10:3722 president at Oregon State and chair, I think, 10:3723 of the executive committee at the time when it 10:3724 started, and Julie Roe was the liaison to that 10:3725 group, Robin Green-Harris who had been a 10:37


18/119

Davi d Ber st


18 ( Pages 66 t o 69)

Page 661 previous staff member of mine in governance and 10:372 who also had been a previous staff member for 10:373 the committee on infractions at the NCAA, Lou 10:374 Anna Simon who's president at Michigan State 10:375 University, and then I'm lost. 10:376 Q. Was a policy goal underlying these 10:387 rewrites? I'm talking about only this fifth 10:388 category, in part, that NCAA wanted to provide 10:389 clarity in the rules? 10:38

10 A. You're talking about enforcement? 10:3811 Q. Correct. The last category that 10:3812 we're talking about that Lou Anna Simon was 10:3813 working on and those rules rewrites, tiering or 10:3814 bracketing, or however you described it. 10:3815 A. I don't know that I know the charge. 10:3816 There was a charge to the group, and I'm sure 10:3817 Julie would know chapter and verse of what it 10:3818 was that it was to do. 10:3819 I attended some of the meetings, but 10:3820 I would guess -- I'm not sure of that because I 10:3821 think they ended up eliminating bylaw 32 at 10:3822 some point in that exercise. I don't know if 10:3823 that clarifies or not. 10:3824 Q. What's bylaw 32? 10:3825 A. It was the investigative practices 10:38

Page 681 Q. I'm asking whether in any of these 10:402 working group sessions, anyone ever articulated 10:403 a sentiment such as, we should do this rewrite 10:404 because this will reinvigorate our rules and 10:405 sanctions process or will make it tougher, or 10:406 something that suggested the rewrite was 10:407 necessary to make NCAA a more potent enforcer? 10:408 And I'm obviously characterizing it, this would 10:409 have been my language, but I wanted to know if 10:40

10 anybody ever expressed that sentiment even 10:4011 informally in these working sessions for why 10:4012 you might want to rewrite these rules? 10:4013 MR. KOWALSKI: Objection to form. 10:4014 A. And I can't answer you. I just have 10:4015 to speculate on that. I didn't attend all, I 10:4116 attended some of those meetings. And the NCAA 10:4117 enforcement program has always been considered 10:4118 potent. I was considered potent when I would 10:4119 have told you I wasn't potent. So the 10:4120 initiatives in enforcement are always intended 10:4121 to provide clarity and some renewed confidence 10:4122 in the program. But how that manifests itself 10:4123 or what people said, I don't know. 10:4124 Q. The testimony you just gave, was 10:4125 that your speculation for why these particular 10:41

Page 671 and policies. 10:382 Q. Do you know why that bylaw was 10:383 eliminated? 10:394 A. No. It will be clear in their 10:395 reports, but no, I don't know. 10:396 Q. And you said that you were in some 10:397 of the meetings or where, I suppose, the 10:398 impetus of some of the ideas for why there 10:399 would be rewrites for this particular section 10:39

10 was broached? 10:3911 A. Yes, I was present. 10:3912 Q. Was a theme for why rewrites, again 10:3913 in this category, necessary in part that NCAA 10:3914 wanted to be firmer or more strict or otherwise 10:3915 be viewed as a more potent enforcer -- 10:3916 MR. KOWALSKI: Objection. 10:3917 Q. -- in the realm of college 10:3918 athletics? 10:3919 MR. KOWALSKI: Objection to form. 10:3920 A. I'd have to defer to Julie on that. 10:3921 I don't know what the precise thinking was. To 10:3922 me, the categorizations of penalties seemed 10:4023 clearer, but I don't know what that necessarily 10:4024 demonstrated over what the view of enforcement 10:4025 was prior to that. 10:40

Page 691 rules were being rewritten? If not, I'd ask 10:412 you to speculate. 10:413 MR. KOWALSKI: Objection to form. 10:414 A. Yeah, and I really would be 10:415 speculating. 10:416 Q. That's okay. 10:417 A. I'm trying to tell you I don't know. 10:418 Q. That's okay. I'm interested in 10:419 speculation too. 10:41

10 A. Well, I'm not going to go that far. 10:4111 I'll give you some impressions here and there, 10:4112 but I don't want to just guess. 10:4113 Q. How about your impression? Was it 10:4214 your impression that one policy rationale 10:4215 behind the rewrite of these rules was to 10:4216 articulate firmer, tougher rules for member 10:4217 institutions? 10:4218 MR. KOWALSKI: Object to form. 10:4219 If you have an impression. 10:4220 Q. Yeah, if you do. 10:4221 A. I don't have that impression. I saw 10:4222 rules that were articulated in different forms, 10:4223 but I didn't say anything that provided new 10:4224 penalties or areas where somehow the NCAA could 10:4225 do something different than now it can do. 10:42


19/119

Davi d Ber st


19 ( Pages 70 t o 73)

Page 701 They have the same penalties and have had for 10:422 50 years. 10:423 Q. Was there any impression or 10:424 sentiment among your colleagues that NCAA was 10:425 viewed by the outside world as a less than 10:426 tough enforcer of rules in college athletics? 10:427 MR. KOWALSKI: Is this at the 10:428 retreats or ever, generally? 10:439 Q. In life, in life. 10:43

10 A. I've seen Jim Delany from the Big 10:4311 Ten quoted in that regard. I've seen Bob 10:4312 Bowlsby quoted along those lines more recently. 10:4313 That's probably post Penn State kinds of 10:4314 issues. I also have seen some writings by John 10:4315 Duncan about what the actual facts would 10:4316 indicate which seem to me to show that 10:4317 enforcements continue to be viable, effective 10:4318 and a worthy service to our membership. 10:4319 So I can't -- I don't have whatever 10:4320 you're asking me for. 10:4321 Q. Well, I'm not sure anybody does. 10:4322 Here's one that you may or -- 10:4323 MR. KOWALSKI: Then objection. 10:4324 Q. If you know, did Dr. Emmert have any 10:4325 concern that there was a perception among folks 10:43

Page 721 trying to go, and that wasn't my impression. 10:452 My impression was that there was a 10:453 demand from the public, from virtually 10:454 everybody. And I can't think of any single 10:455 source that didn't say the NCAA needs to be 10:456 able to react to this kind of a matter that it 10:457 undermines intercollegiate athletics, period. 10:458 And I think he was impacted by that and 10:459 believed that the association needed to attempt 10:45

10 to process this matter forward. 10:4511 Q. I actually wasn't asking you, but I 10:4512 do appreciate the answer because I think it is 10:4513 helpful in understanding what you-all were 10:4614 thinking about. 10:4615 Mark Emmert, in other words, 10:4616 believed that NCAA needed to respond to this 10:4617 situation? 10:4618 A. I believe so, yes. 10:4619 Q. In Mark Emmert's early articulation 10:4620 of this notion, did he begin to inject into the 10:4621 discussion the concept of lack of institutional 10:4622 control as one that could lead to sanctions? 10:4623 MR. KOWALSKI: Objection to form. 10:4624 A. I don't recall. That's the obvious 10:4625 possibility, and I don't know whether I would 10:46

Page 711 like Jim Delany that perhaps the NCAA was not 10:442 the enforcer it should be? 10:443 MR. KOWALSKI: Objection. 10:444 A. I don't have any way of trying to 10:445 think through what Mark Emmert had in his mind. 10:446 I believe he, like everyone else, believes that 10:447 the NCAA enforcement program needs to be 10:448 viable, efficient, and have credibility. And I 10:449 think that's an important principle. 10:44

10 Q. Let's move ahead to -- back to the 10:4411 early November meetings that we were discussing 10:4412 before. 10:4413 And I think we established that Mark 10:4414 Emmert was perhaps a lead voice in pushing back 10:4415 against your suggestion that let's think about 10:4416 whether we have jurisdiction or whatever word 10:4417 we're using. 10:4418 MR. KOWALSKI: Objection to form. 10:4419 A. Yeah, and I never said to you that 10:4420 we didn't have jurisdiction. I said I objected 10:4421 to the manner by which they may want to move 10:4522 forward in the enforcement program at that 10:4523 time. But the -- if where you're going with 10:4524 that is somehow is this because the NCAA needed 10:4525 to look tougher? I take it that's where you're 10:45

Page 731 have said that or he would have said that or 10:462 anyone thoughtful trying to think of ways. The 10:463 only directions would be institutional control 10:464 and/or -- and even more overarching principle 10:465 in constitution 2 possibly. 10:466 Q. And what is that principle? Tell 10:477 me, please. 10:478 A. I'd have to paraphrase. But it 10:479 relates to conducting programs with integrity 10:47

10 and fairness and compliance with NCAA rules. 10:4711 Q. If you -- is it accurate that what 10:4712 we're talking about is the idea that somebody 10:4713 articulated those principles as ones upon which 10:4714 sanctions or enforcement could be based, you're 10:4715 just not sure right now who it was that put it 10:4716 on the table? 10:4717 A. Those items were at least part of 10:4718 the discussion, and I don't know where it came 10:4719 from. 10:4720 Q. And early on? We're talking 10:4721 essentially in the very beginning of the 10:4722 conversations about how NCAA should react? 10:4723 A. I don't recall precisely the order 10:4724 of meetings, and my guess is we had a couple 10:4725 around that time that included all of the 10:47


20/119

Davi d Ber st


20 ( Pages 74 t o 77)

Page 741 people you're making reference to. So I don't 10:472 know which came first, but I'll put those two 10:483 meetings together. 10:484 Q. For my purpose, it doesn't matter. 10:485 I just want to make sure I'm hearing you right, 10:486 that it was -- it wasn't later in 2012 that the 10:487 idea of enforcement being tied to lack of 10:488 institutional control or broader institutional 10:489 issues came up as a possibility for how to move 10:48

10 forward? It was really back in this early 10:4811 couple of meetings by somebody? 10:4812 MR. KOWALSKI: Objection to form. 10:4813 A. I believe that it was because the 10:4814 eventual letter that gets submitted to the 10:4815 school I think, in my recollection, makes 10:4816 reference to those rules. 10:4817 Q. Let's -- let me ask you about that 10:4818 letter. 10:4819 MR. HAVERSTICK: I'll tell you what, 09:0520 just so we have it, can we mark as Exhibit 3, 10:4821 Tab 9. 10:4822 (Berst Exhibit Number 3 marked for 10:4823 identification.) 10:4924 Q. There you go. 10:4925 A. I've read it. I see it. 10:50

Page 761 football and baseball and would have interacted 10:512 with a number of folks at Penn State, and 10:513 Jackie because she and I would be involved in 10:514 anything that later pertained to governance. 10:515 Q. Turning to the letter itself, did 10:516 you have any role in drafting this document? 10:517 A. I don't know. I don't believe so. 10:518 Q. Do you know who did, who wrote it? 10:519 A. I do not specifically. 10:52

10 Q. You -- 10:5211 A. It looks like Mark Emmert, the way 10:5212 the -- at the bottom, it has a couple of 10:5213 initials, and then DBY would be the person who 10:5214 typed it. 10:5215 Q. He signed it. But if it was -- if 10:5216 there was input from other folks about the 10:5217 actual language, you don't today know of 10:5218 anybody else who might have participated in 10:5219 drafting the letter? 10:5220 A. I don't recall me doing it, but I 10:5221 don't know who else might have. 10:5222 Q. You told us in the beginning of our 10:5223 discussion today what a notice of inquiry 10:5224 letter looked like. 10:5225 10:52

Page 751 Q. Some questions about the top cover 10:502 email. Who is Crissy Schluep? It's my German 10:503 slipping out. 10:504 A. She was an assistant to the 10:505 president and maybe others at that point. So 10:506 she would have been passing this information 10:507 along to the individuals who were next to the 10:508 "To" and cc line. 10:509 Q. And you, in turn, receive the letter 10:50

10 and forward it to three other folks: Greg 10:5011 Shaheen, is it Dennie "Pop" or "Poppy"? 10:5012 A. "Pope." 10:5013 Q. "Pope." Third time lucky. And 10:5014 Jackie Campbell. I know I can say that right. 10:5115 Who are those people? 10:5116 A. Those are additional vice presidents 10:5117 and then my assistant in governance. 10:5118 Q. Why did you chose to send it to 10:5119 those three people, if you remember? 10:5120 A. I don't remember, but it would have 10:5121 been because they were missing in the first 10:5122 instance by Crissy, and they may well become 10:5123 aware of these issues. Greg Shaheen was 10:5124 involved in all of the championships area. 10:5125 Dennie Poppe was vice president related to 10:51

Page 771 (Berst Exhibit Number 4 marked for 10:522 identification.) 10:523 Q. Is this a notice of inquiry letter? 10:524 A. No. And that was my doing. 10:525 Q. Tell me, please. Tell me. 10:536 A. I said whoever follows up, if you're 10:537 going to write a letter to Penn State, do not 10:538 do it under enforcement, enforcement auspices. 10:539 Q. Why did you say that? 10:53

10 A. Because no one at that stage knew 10:5311 how this might be pursued. And while this is 10:5312 drafted and sent to Penn State to gather some 10:5313 information, in my view, that was just for the 10:5314 benefit of the president of the association to 10:5315 then begin to understand the case well enough 10:5316 to know where to refer it. 10:5317 Q. You did not -- you did not at this 10:5318 time, November 17, 2011, believe that it was 10:5319 the right time to commence an enforcement 10:5320 action? 10:5321 MR. KOWALSKI: Objection to form. 10:5322 A. I did not believe that the 10:5323 enforcement mechanism -- I continued to believe 10:5324 at that time that the enforcement mechanism 10:5425 should not be used. And tried to make that 10:54


21/119

Davi d Ber st


21 ( Pages 78 t o 81)

Page 781 point and ma

Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

Documents

Transcript of Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)