Suspended Ohio State wide receiver DeVier Posey’s attorney provided documents to The Lantern claiming that drive time, as well as phone records, bank activity and timecards are evidence that Posey wasn’t overpaid to the extent of a five-game suspension.
Larry James, an attorney with Crabbe, Browne & James LLC, who is paid by OSU for representing Posey, spoke with The Lantern Saturday in his firm’s downtown office about the NCAA’s announcement Friday that Posey would be suspended five games for receiving money for work he didn’t do from former booster Robert DiGeronimo.
OSU did not immediately provide The Lantern with information pertaining to how much James is paid.
Posey was originally scheduled to return to play Saturday at Nebraska after being suspended five games for the “Tattoo-gate” scandal. However, OSU athletic director Gene Smith announced on Oct. 3 that Posey would be suspended at least one additional game, before the NCAA’s ruling Friday that Posey must actually sit five more games.
OSU lost to Nebraska on Saturday, 34-27. OSU receivers only caught six passes on 18 total attempts between quarterbacks Braxton Miller and Joe Bauserman for 108 yards.
DiGeronimo employed Posey at Independence Excavations and Valley Laser Car Wash near Independence, Ohio, from June 18, 2009, through March 20, 2011. OSU and NCAA enforcement staffs concluded that Posey was paid for 70 hours of work, despite only working 21.5 hours. He was overpaid by 48.5 hours and $727.50.
Posey is being ordered to pay that figure back as part of the NCAA’s ruling. James said he has “never seen any process like this whatsoever” in regards to the NCAA’s investigation of Posey.
In an Oct. 5 letter from James’ firm to the NCAA reinstatement staff, James said the athletes “did not know the precise method by which their wages were being calculated” and that Posey “had no reason to believe that his wages may have been miscalculated or that he may have been overpaid.”
DiGeronimo said in a June 29 letter to James that all athletes were paid $15 an hour, a rate he said was comparable to his shop employees but less than what local union members who do comparable work would be paid.
James argued that drive time to the Independence area from Columbus and back was included in Posey’s compensation.
James said in a letter dated Sept. 30 to Doug Archie, OSU’s associate athletic director for compliance, that the days and hours Posey worked were incorrectly reported. Independence Excavating originally reported that Posey worked 10 hours the week ending March 27, 2009, 24 hours the week ending June 18, 2009, 20 hours the week ending Feb. 19, 2010 and 16 hours the week ending March 25, 2011.
According to the letter, the hours should have been reported as 10 hours, 11 hours, nine hours and 16 hours, respectively, and Posey was paid for those hours. Each week incorporated driving time to Independence from Columbus and back as part of his compensation, which is normal for union employees.
Posey was paid a grand total $978.49 from DiGeronimo, which accounts for 65.23 hours of the 70 hours for which he was paid, assuming he was paid $15 per hour.
Posey also received $102 in impermissible benefits for a round of golf with Columbus photographer Dennis Talbott.
James also argued that phone records corroborate that Posey was in the Independence area working at the times he was supposed to be working.
Phone records show Posey made and took phone calls from Independence, as well as surrounding cities West Salem, Ashland, Cleveland (where Posey stayed with running back Dan Herron the week ending March 25, 2011), Broadview, Beachwood, Medina, Mansfield, Brecksville, Warren and Cuyahoga Heights, among others during the weeks in question while he was supposed to be working.
However, the letter states the reason why calls were traced to a multitude of cities is because the two Independence Excavation locations and the car wash at which he worked, Valley Laser Car Wash, are all located a mile from each other in Valley View, Ohio, which is north of Independence.
The letter also states that the calls could have been traced from antennas outside of the area because the nearest Verizon towers where Posey was making calls from may have been experiencing high call volume.
As a result, the closest Verizon tower would not necessarily transmit the call, and it would have been connected through a different tower or antenna leased through Verizon, and the listing for the call would read two different locations.
The NCAA didn’t consider the phone records, James said, and only considered evidence put forth specifically by the university.
“I put forth the cell phone records. I put forth the bank records. I put forth the documents from DiGeronimo to verify that, so what I’m saying to you is they’re being disingenuous to you,” James said.
In fact, the NCAA took issue with James’ assertion that the NCAA was ignoring facts.
“These statements are patently false,” NCAA spokeswoman Stacey Osburn told the The Lantern in an email. “To ensure a fair process for the involved student-athlete, each reinstatement decision is determined based on its own merits. The staff carefully reviews all information that the university puts forward during the reinstatement process. Posey’s withholding condition is based on his own actions and responsibility for the violation.”
James said there were several issues with the NCAA’s investigation.
“(One) is the lack of due process for the students,” he said. “(Second is) a lack of meaningful representation for the students by counsel, and thirdly, there is no opportunity for the student or the students represented to have meaningful input into the process.”
James said he believes Posey’s punishment may be a lingering effect from violations incurred by former quarterback Terrelle Pryor.
“In the eyes of the NCAA, they are guilty by association,” he said.
Archie said in a letter dated Oct. 3 to Jennifer Henderson, the NCAA’s director for student-athlete reinstatement, that it wasn’t obvious to the athletes that they were being overpaid and that none of them felt they were overpaid.
The athletes also didn’t believe they had to register their employment wi
th the university and that the job would not last for an extended period of time, so they did not contact the compliance office.
The letter states that the athletes weren’t told their hourly wage and that no timecards were filled out, as the hours were verbally reported by a supervisor to the controller, who issued the checks to the athletes. The procedure is similar to how other part-time employees at Independence Excavating are paid, according to the letter.
However, timecards signed by an Independence Excavating supervisor show running back Dan Herron, who was also suspended for Saturday’s game at Nebraska, worked eight hours a day for 32 hours total for the week ending June 18, 2010. Another timecard shows Herron worked 40 hours the week ending July 30, 2010, but does not list the hours by day.
A supervisor was interviewed by the university during its investigation and said there were no issues with the athletes not performing work.
Documents provided by OSU at Monday’s press conference in which Smith announced that Posey, Herron and Marcus Hall would be suspended one game list the “incorrect” hours Posey was paid.
DiGeronimo issued a letter on Sept. 26 stating that Posey requested to work the week ending Feb. 19, 2010, as he was going to be in Cleveland to attend a charity gala. His request was approved and the company precut him a check because the payroll department was closed on Saturdays.
The check was tagged “makeup” and the controller assumed the hours accumulated based on a previously used pay rate. Because the request involved other athletes as well, DiGeronimo said a detailed review was not possible in that timeframe, and in another letter to James dated Sept. 23, said the company did not “have the ability to substantiate the hours for this week.”
Posey was paid for five hours travel time plus four hours on-site for that week’s work. He was also paid time-and-a-half since that’s what union workers are paid for working Saturdays. He was ultimately paid $33 an hour for nine hours of work, totaling $300.
DiGeronimo never consented to an interview with the OSU and NCAA compliance staffs, and has since been disassociated from the university.
“It wasn’t a question of whether he wanted to be interviewed by OSU or the NCAA, he just felt he wasn’t gonna get a fair an impartial audience, and that’s turned out to be true,” James said. “On the one hand, the NCAA says that it’s gonna accept the early report that we gave them and it’s gonna disregard all the other reports.”
Fallout on campus
Posey’s suspension means he won’t be eligible to return until OSU hosts Penn State on Nov. 19. The team will finish the regular season by traveling to Michigan the next week, and then could play in the Big Ten Championship and a bowl game afterward, if necessary.
Smith said in a statement Friday that he was disappointed with the NCAA’s ruling.
“I am extremely disappointed with the NCAA’s decision regarding Devier Posey,” Smith said. “This penalty is harsh considering the nature of the violation and the five-game suspension already served by this student athlete.”
James said he backs Smith and OSU president E. Gordon Gee.
“I think they’re doing exceptionally well under the circumstances,” James said. “You put any person in a situation, because you had the ‘Sports Illustrated 9′ and that turned to be not an issue. The cars turned out to be not an issue. The tattoos and memorabilia was dealt with untimely. And this issue has been dealt with timely, although I would say the truth has not been addressed thus far in this ordeal.”
James even backs Gee after Gee told The Columbus Dispatch last week that OSU was the “poster child for compliance.”
“What I understood him meaning is that whenever there is an infraction of any type, that this university and its compliance staff reports it without exception,” James said.
While Posey will only be eligible for two regular season games this season, James offered a message Posey might relay to OSU students and fans.
“He would say he is a model student,” James said. “He’s a model teammate. He’s a committed athlete. He’s going to graduate on time and he hasn’t done anything wrong.”