The NCAA is Bersting with hypocrisy

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Written by Kyle Magin

Go ahead and think of a handful of things that could get you fired from your job.

Alright, what’s on the board? Uttering an on-the-record racial slur? Using unethical/potentially illegal tactics to get your work done? Making your place of employment look tyrannical in a publicly-circulated email?

How about costing your employer $2.5 million?

Yep.

That last one ought to do the trick.

Well, it’s your misfortune to live in the real world, because NCAA Vice President in charge of Division 1 athletics David Berst checked off every single one of those career accomplishments and manages to pull down six figures to this day at the same office.

It’s a tremendous shame Berst is still punching the clock after Jerry Tarkanian died last week. Berst muscled his way through the Cosa Nostra the NCAA hierarchy by targeting Tark over the course of multiple decades. As a wet-behind-the-ears baseball coach-turned NCAA goon enforcement officer in the early 70s, Berst participated in and later led an NCAA effort to nail Tark on recruiting violations while the hoops coach was at Long Beach and later, UNLV. Tark’s problems with the NCAA reportedly started after he got a little righteous in a pair of newspaper columns, claiming small schools didn’t get away with nearly the recruiting violations John Wooden’s UCLA Bruins routinely skated on. But that’s neither here nor there.

Whatever attracted Berst’s attentions, he attacked Tarkanian relentlessly using ethically corrupt and legally questionable tactics. Berst’s investigations into Tark’s recruiting practices prompted an NCAA order to UNLV to suspend Tark for two seasons following the school’s 1977 Final Four run; its first-ever.

A Clark County District Court judge, James A. Brennan, issued a scathing six-page permanent injunction against the suspension on Sept. 30th, 1977, stating, among other things, that Berst “had an obsession to the point of paranoia to harm the plaintiff… The Committee on Infractions allowed a staff investigator (Berst), who the evidence clearly shows, swore he would get Tarkanian if it was the last thing he ever did (emphasis added), to act as investigator, prosecutor, a judge and jury; and by the committee’s failure to demand a modicum of legally competent and credible evidence against the plaintiff. . . acted as a rubber stamp for the investigative staff and in particular for investigator David Berst.”

Heady stuff. And Brennan’s opinion goes on like that, attacking the NCAA for its total failure to provide Tarkanian anything resembling due process. It also attacks Berst for intimidating witnesses, promising immunity and promising awards to athletes in exchange for damning testimony or evidence against Tark.

Even in the most generous reading in Berst’s favor, it’s telling that when the NCAA eventually won its case against Tark on appeals, it never pursued the two-year suspension. And, if you (potentially correctly) assume Brennan added a little salt to his injunction—he did hold an elected office in UNLV’s backyard during a time when the team was immensely popular—you’d have to forget everything else Berst did in his long hunt for the Shark and in his career in the NCAA to start to give him anything more than the slightest benefit of the doubt.

Berst would later go on to admit to making clandestine tape recordings of the Shark during multiple interviews without Tarkanian’s consent. Much of Berst’s evidence against Tark was, in fact, useless—he testified in court that he used handwritten notes of conversations during his investigation of Tarkanian. He also testified that “investigators presented no physical evidence, no affidavits and no depositions or written statements to back up allegations of violations” against Tarkanian. Needless to say, the NCAA has since overhauled its practices.

As if these f-ups weren’t enough (and they weren’t for the NCAA—Berst is still employed and during the 80s took over as Luca Brasi head of enforcement), Berst would go on to call Tark, during a courtroom statement, a rug merchant, owing to Tarkanian’s Armenian heritage. He’d be out on his ass so fast today for saying something to that effect Donald Sterling would consider it a swift fall from grace.

But no, Berst would go on to even have a turn in the spotlight for the NCAA. In 1987, he famously announced SMU’s death penalty in Dallas and promptly fainted at the press conference. The penalty ruined the program for decades, but the NCAA got its man.

After that, Berst retreated to the shadows somewhat. He appears to be the NCAA’s version of the guy at every organization who knows where all the bodies are buried because he put them there.

He continued to pursue Tarkanian throughout the late 1980s and finally secured a postseason ban for the Runnin’ Rebels following their 1990 national title. The school and NCAA agreed to postpone the ban one season—Tark was free to take a shot at back-to-back banners. After the Rebels lost to Duke in the 1991 title game, Berst reportedly said “the drinks are on me” in the thralls of celebration following his enemy’s defeat and subsequent postseason banishment.

In 1992, Tarkanian sued the NCAA for harassment—with Berst’s investigation serving as a major basis for the suit. It would take six years, but in 1998 the NCAA settled the case with Tark for $2.5 million for him to go away. The courts say the NCAA’s settlement means they didn’t admit fault—but we don’t have to take it that way.

It’s far from the last time Berst surfaced during his career. He’s popped up in court cases fighting to protect the NCAA’s right to keep secret the files it uses to inform its discipline against member schools.

He’s become a bit of a go-to guy for the NCAA in its quest to cut labor out of its billion-dollar revenues protect amateurism. Leading NCAA lights like Graham Spanier—the former Penn State president who was discredited, fired and indicted for his role in covering up the Jerry Sandusky sex scandal—saw Berst as their man to keep any mentions of potential revenue sharing with athletes out of any official association reports, as was uncovered in a 2008 e-mail.

Berst is at the forefront any time the organization settles with a plaintiff threatening the NCAA’s system wherein players don’t share in the spoils of massive TV contracts, video games or stadium takes and can’t retain lawyers or agents before deciding whether or not to go pro, as in the 2009 case of former Oklahoma State Pitcher Andy Oliver, who took $750,000 not to pants the cartel in court.

Perhaps most galling, in a real 2008 e-mail from Berst to then-NCAA president Myles Brand, Berst defended the NCAA’s practice of partnering with EA Sports to sell video games with college players’ likenesses in it thusly:

“It is not our duty to protect the student athlete. I believe we could continue to prohibit a student-athlete from receiving remuneration, but permit the use of his or her likeness.”

It is not our duty to protect the student athlete.

Holy shit. Think about that for a second. An executive in a body specifically built for the express purpose of organizing championships for 18-23 year olds—which includes numerous brain-jarring contact sports—doesn’t feel it’s that body’s duty to protect student athletes. I realize he’s talking here about not protecting them from economic exploitation, but is it really a leap that a guy wouldn’t give a shit about a kid suffering a traumatic brain injury if he’s got no problem cutting them out of thousands of dollars? By 2013 (the last year EA Sports made its NCAA basketball and football video games) the company paid Wisconsin $143,076 to use it and its players likenesses in the football game and $26,593 in its basketball game. Despite all these statements, despite all the shady dealings and thievery, Berst is healthily employed.

Tark had to resign from UNLV due to the NCAA’s nonstop predation. Berst is still above ground, with us, and Tark is under it.

To hell with the NCAA.

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