"But I agree with Mr. Karp somewhat. The allegations raised by Rufus Porter against Mr. O'Toole are not really what this trial is about. This trial is about whether the ACAA panel, and the university, was acting in accordance with their rules and regulations when they conducted an investigation, held a hearing, and then suspended Mr. O'Toole for violating those rules and regulations."
Zusskin looked up at the ceiling of the courtroom for a moment and sighed. "A few minutes ago, Mr. Karp eloquently spoke about our rights as Americans. Well, he left out some rights, including the right of private entities and institutions to conduct their affairs without undue interference from the government. Let me give you an example. What should be the role of the courts when a member of a country club is expelled for consistently breaking the rules regarding the wearing of a shirt with a collar? Should our courts be tied up because the rule breaker was not given the opportunity to cross-examine or confront the club's board of directors? Or say an employer terminates the employment of someone who is not performing their job in a satisfactory manner or in accordance with the rules and regulations surrounding that employment. What if it was a doctor or an airline pilot who got caught drinking on the job? Should they be able to sue the hospital or airline because they were not afforded a trial? The government will step in to protect certain classes from discrimination based on race, religion, national origin, gender, or age, but do we want the government telling private entities how to conduct themselves at every little turn?"
Zusskin pointed out that the jurors could expect the plaintiff to attack the transcript of the interviews of the two recruits "because it is not the entire transcript of every little thing that was said. For the purposes of the hearing, the transcript only dealt with the questions and answers relevant to the panel. Did Coach O'Toole know about the party? Did he encourage Rufus Porter to take two recruits out of the dormitory and show them a 'good time'? And did Coach O'Toole facilitate this 'good time' by making arrangements with an escort service and paying for them as well as the alcohol that was consumed by these underage recruits? And, lastly, did he then attempt to interfere with the investigation of these charges?"
Zusskin pointed out that the ACAA investigator, Larkin, was following standard procedure when he transcribed only the statements that were relevant and then reused the tape. "There was nothing malicious, a word Mr. Karp likes to throw around, about Mr. Larkin's actions."
Zusskin walked back to the defense table, where, with his back to the jury, he winked at Karen Welt, who was watching him with adoration. As if suddenly remembering something, he turned back to the jury. "If you please, one last comment regarding Mr. Karp's little story about Coach Anderson. I believe that his point was that fair play is as American as apple pie. But in sports, doesn't fair play mean playing by the rules of the game? We might not like all of those rules-heck, I played safety for my college football team and would have loved to pop those receivers before they caught the ball-but we have to abide by the rules or we are not playing fair. My point is that Mr. O'Toole signed a contract agreeing to abide by the rules, including the use of panels to hear complaints and make rulings. And now he doesn't want to play by those rules. We believe that you should insist that he does. Thank you."
Boy, he's good, Karp thought as Zusskin took his seat and Judge Allen asked them to call their first witness.
"Thank you, Your Honor," Meyers said, rising from his seat. "We call Mikey O'Toole."
O'Toole got up from his seat at the plaintiff's table and climbed into the witness stand, where he was sworn in. He then sat and smiled at the jurors. "Good morning," he said quietly. Most returned the greeting and a few even smiled back.
The first part of O'Toole's testimony repeated Karp's opening regarding who he was, how he came to be a coach at the university, and a brief history of his time there leading up to the recruiting event. They then entered the more delicate area of when and how O'Toole learned of the party that led to the dismissal of Rufus Porter from the team.
Karp and Meyers had decided that the best offense was to go after the ACAA case against O'Toole. They didn't want to rely just on a strategy centered on whether O'Toole had received a fair hearing that protected his rights to due process without showing that the allegations against him were false and that the entire case had been a farce from the beginning.
"At what point did you learn about the party?" Meyers asked.
"After Rufus was…" O'Toole had been about to say "arrested" but caught himself just in time. "After Rufus violated team rules and was dismissed for conduct detrimental to the team. It was after that I was told by Clyde Barnhill, the university's attorney, that Porter was accusing me of the allegations."
"Did you at any point encourage Rufus Porter to show these two recruits a 'good time' by taking them to a party where alcohol was served and they would engage in sexual conduct?"
"I did not."
"Did you arrange for strippers from the Pink Pussycat Escort Service or pay for such activities?"
"No."
"Did you pay for alcohol?"
"No."
Meyers asked if it was possible for someone else to have used the telephone in his office and have access to the credit card.
"Yes," O'Toole replied. "I let students, including my players, use the office-sometimes to call home, or as a place to do their homework. Sometimes they just hang out there before or after practice, and I'm not always around. I trust them."
"What were your instructions regarding the recruits on the night in question?"
"They were to attend a team dinner and then be taken back to the dormitory with lights out at ten p.m."
After the review of the history, Meyers moved on to the ACAA hearing, asking O'Toole to recall what he could of how it was conducted and what questions he was asked. "How long did it take the panel to reach a decision to suspend you?"
"About an hour."
"An hour. And can you explain to the jury the effect the ACAA decision to suspend you will have on your career?"
O'Toole tried to clear his throat and when he couldn't, he reached for a glass of water and drank before answering. "It's over," he said simply.
"By that you mean it's over at the University of Northwest Idaho?"
"No," O'Toole said, shaking his head. "It's over at the college level, and probably high school, everywhere."
"How do you know that?"
"I've made some calls regarding open positions at other colleges and universities."
"And what's been the response?"
"In at least three circumstances, the athletic directors have said they would like to hire me, but they can't," O'Toole replied.
"They can't?"
O'Toole shook his head again. "They'd never get it past the administration at their schools… I'm the guy who gave recruits alcohol and paid for strippers and sex. I'm damaged goods. The press would tear them apart."
"Have you explained that you're innocent of the charges?"
"Yes, and I think they believe me," O'Toole replied. "But it doesn't matter. I'm a pariah. The publication of the charges against me contemporaneous with my firing has ended my coaching career."
Meyers had intended to ask a few more questions but could tell that his friend was on the verge of breaking down, so he decided to quit. "Thank you, Coach O'Toole," he said, and turned to Zusskin. "Your witness."
Zusskin began his cross-examination of O'Toole by asking if there was a reason Rufus Porter might have wanted to "do anything to get more playing time."
O'Toole shrugged. "I'm sure all athletes want to impress their coaches."
"Was his playing time diminishing?"
"Yes," O'Toole acknowledged. "There are better players on the team."
A loud snort from the spectator section momentarily stopped the proceedings. All eyes focused on a large man in the second row behind the defense table. But with Judge Allen staring at him, Big John Porter made no other sounds.