A crazy afternoon ended with Miami’s President Donna Shalala finally releasing a statement that said Miami had had enough. What happens from here is anyone’s guess, but to understand what finally pushed Miami into this position, the full context of the sham self “investigation” the NCAA pursued must be covered.
On the first page in the Executive Summary of today’s report, the scope is made clear:
“The focus of the Enforcement Review has been to determine whether NCAA Enforcement Staff took inappropriate steps in their efforts to secure testimony and records through the bankruptcy process, and if so, to determine how that happened.”
And that is how the NCAA made sure that there internal investigation’s damage would be limited. After Emmert, on a conference call a few weeks ago explicitly said, “One of the components of this inquiry I’m conducting is to look at all the tactics and processes involved in this case,” Emmert instead instructed his investigation to only consider the specific relationship between the NCAA Enforcement Staff and Nevin Shapiro Attorney Maria Elena-Perez, and ignore all other aspects of the investigation. In doing this, Emmert virtually guaranteed that he wouldn’t have to throw out the entire case and also guaranteed that they could control the damage.
The particulars of the report have been reported ad nauseam, so a regurgitation of them serves no purpose here. Instead, it is worth noting that there is evidence that both NCAA Chief Operating Officer Jim Isch and President Mike Emmert would likely be banned from their jobs and given a “show cause” for future hirings had this been an NCAA investigation of a member instead of an “independent” investigation of the NCAA that was using an INTENTIONALLY HIGH standard of proof of guilt.
First, let’s deal with Isch. The now unemployed Julie Roe Lach asked for permission from Isch to proceed. The reports’ dealing of this is instructive:
“Mr. Isch replied to Ms. Lach’s email: “Absolutely, please proceed, if past practice is any indication, there will be enough money.” (Exhibit 11). During interviews, Mr. Isch stated that given the size and importance of the U. Miami investigation to the NCAA, he was prepared to provide Enforcement Staff with whatever financial resources the Association had available. Mr. Isch explained that he only provided authorization for the expenditure of funds, and did not opine as to the propriety of using the bankruptcy process.”
On Isch, the report concludes:
“As the Chief Operating Officer, Jim Isch has a broad scope of authority over the operations of the NCAA. That does not mean, however, that he has a role in or responsibility for every decision made in the Association. In this matter, he did have a role in approving the Perez proposal, but he did not have responsibility for vetting its appropriateness.”
Could you imagine a head coach going in front of the infractions committee after he explicitly approved something that resulted in an NCAA violation with that sort of excuse? Is the NCAA buying that? Of course not, but when it is them being investigated, apparently the standard is no longer “should have known.” An absolute travesty. But the report also manages to absolve and compliment President Emmert:
“Although Mark Emmert knew about the general background of the U. Miami case, he was not apprised of the arrangement with Ms. Perez until the fall of 2012 after Ms. Stevenson realized that her advice the previous year had not been followed. His conduct is therefore not subject to judgment in relation to the implementation of the Perez proposal. To the extent that Mr. Emmert dealt with the issue, it was in the context of deciding how to respond to the issue once the NCAA became aware of it. The appropriateness of his conduct in that context is evident from NCAA’s response, and specifically from his decisions to fully disclose the issue and to take all possible steps to ensure that the parties at risk in the investigation suffer no prejudice as a result of the NCAA’s mistakes.”
This is once again a VERY different standard than the one that the NCAA uses when punishing member institutions. Once Miami knew of the Shapiro allegations, they did everything correctly. And yet we are in Year 2 of that investigation. If simply doing everything correct once learning of malfeasance is worthy of compliment, shouldn’t Miami be free and clear? Furthering the ridiculous nature of this name clearing exercise is that there is a bit of tie in between what happened here and Emmert’s previous public statements. On August 9 of 2011:
“It’s time for creative solutions to the significant issues facing intercollegiate athletics. In order to protect student-athlete success, the collegiate model, amateurism and competitive equity, there must be substantive change to the enterprise.”
Why is this relevant? Because it was this exact phrasing that now unemployed Managing Director of Enforcement Tom Hosty used to justify this morally ambiguous pursuit by the NCAA Enforcement Staff. When now unemployed Director of Enforcement Ameen Najjar contacted Hosty and Roe Lach to get approval for the idea of using Shapiro’s attorney, Hosty’s exact response was:
“Most intriguing. I don’t know what we can afford from costs but this could be a creative solution for bigger break-throughs on evidence.”
A “creative solution?” Hmm. Now whose idea was it to use “creative solutions?” There is no way any coach would get away with making a public statement like that, if then a paper trail lead to the use of the same phrasing in commission of a violation. The NCAA punished Joe Paterno largely on the inclusion of the word “coach” in an e-mail referencing him.
As bad as the attempts to clear the higher levels of the NCAA are, it is apparent as we dig deeper into this report, that the NCAA’s culture is the central issue here, and it remains completely unaddressed by this incomplete report.
The Call Is Coming From Inside the House
One of the more telling sections of the investigatory report is the section where it seeks to analyze how Najjar went down this path without realizing that it was wrong and ridiculous. There are several clear points given for why the Enforcement Staff should have realized the error of their ways. But what about the signs that they were okay in proceeding? In bending over backwards to try and find a defense for the indefensible, the report actually ironically buries the NCAA.
Defense 1: “Analogous situations in past investigations” That’s right, in order to defend the NCAA for not realizing this is improper, the report actually says, “they do things like this all the time.” This not only makes the problem MUCH larger, it also directly contradicts Emmert’s statement that they “don’t have any evidence or indication” of similar things in the past. Of course, this report was specifically crafted to NOT look at anything other than a narrow scope, so these other analogous situations were not explored.
Defense 2: “Ms. Perez’s documentation of her ability to practice in Bankruptcy Court” The University of Miami’s lawyers raised questions about whether Perez was even allowed to appear in a bankruptcy proceeding since she was his criminal attorney. She assured them that she was completing training that would allow her to appear, but giving Najjar “the benefit of the doubt”, he also apparently took this to mean that the Perez was acting properly in representing the NCAA, which is a ridiculous deductive leap that no one would reasonably make, but that this report does make.
Defense 3: “Mr. Shapiro’s demonstrated interest in the bankruptcy proceeding” This is used as a defense for Najjar, but actually should have been a red flag, because one of the reasons for Shapiro’s interest is that “he was looking for revenge against the U. Miami players and coaches who he believed had turned their backs on him when he got in trouble with the federal authorities.” The bankruptcy proceeding was designed to recover money, and not a platform for a criminal to carry out a personal vendetta. The fact that Shapiro’s attorney raised this as a reason for wanting to depose people would have been a huge warning sign to anyone with a neutral perspective. Instead, the report is actually defending Najjar on this basis.
Defense 4: “U. Miami’s awareness that Perez was securing depositions on behalf of the NCAA” More absurdity because this should have set off a another big siren with the enforcement committee. First, it is ridiculous to defend Najjar on this basis. If a defense attorney doesn’t raise an issue in court, it doesn’t make police misconduct correct. They know the rules ahead of time. If you know the speed limit and drive over it, but no cop gives you a ticket, you were still speeding. It was not Miami’s lawyers’ job to ensure that the NCAA was properly conducting their investigation. Second, and more importantly, the reason that Miami’s attorneys didn’t say anything shows the depth of the NCAA’s iron grip:
“When asked in an interview why they kept silent after October, the attorneys explained that they did not want to appear uncooperative or to look like they were standing in the way of the truth.”
Think about this from a high level perspective for a second. You have the report trying to defend the NCAA investigator on these 4 items, and instead, they did the opposite.
The Absurdity Of the NCAA’s Existence
The hilarious conclusion to the report shows the extent of the whitewash. Somehow, the report concluded this:
“We have every reason to believe, however, that this series of missteps is not typical of the Enforcement Staff’s operations. We have been uniformly impressed with the caliber of the Staff members and with the depth of their commitment to the mission of the NCAA.”
I have two questions about this ridiculous statement:
- How would you know? The report’s scope was intentionally limited to just this portion of this case. In fact, in judging what information to exclude, the investigation didn’t even look into whether or not the other information was properly obtained, instead simply determining whether it was a product of the depositions. They didn’t care where it came from, as long as it didn’t come from the depositions: “Based upon our review, it is our opinion that the current assertions in the U. Miami Investigative Record are not based on evidence that is derived, directly or indirectly, from the depositions of Mr. Allen or Mr. Huyghue.” That was the narrow scope of their focus, yet they somehow feel comfortable making broad assertions about the entire organization.
- Isn’t the problem that they are so committed to the “mission of the NCAA” that they didn’t care who they ran over to enforce their arbitrary rules? They were so hell bent on proving something that an investigator ignored a legal opinion instead finding a “way around”, and then this was approved all the way up the command chain. Those are not symptoms of one person going rogue, but instead symptoms of an organization with no ethical or moral compass taking an ends justifies the means approach. They actually paid a convicted ponzi schemer who stole $900 million from people, got into bed with his attorney, misused a bankruptcy proceeding to get around the fact that they did not have subpoena power, ignored legal advise…and all for what? To make sure that some player didn’t get a lap dance in 2003? How is it possible to look at the culture that produces THAT, and conclude that it was an isolated event and not the result of a cultural corruption?
And that finally sent Shalala over the edge. In a scathing letter, she fired back, basically saying, “that’s enough, and we aren’t putting up with this sham anymore.” To summarize what happened:
- The NCAA ran roughshod over any and every line, in an attempt to prove that some extra benefits were provided. In doing so, they crossed moral, ethical and possibly legal lines.
- The University’s lawyers were too scared to call foul on the NCAA, for fear of getting retribution for being uncooperative similar to that with USC was hit. That’s correct; the report stated that an institution was afraid to defend itself because the NCAA punishes schools that do just that. And the report saw nothing wrong with this, actually using it as a defense for the NCAA saying that the NCAA would have known they were doing wrong had the University’s lawyers said something.
- When it was discovered that the NCAA did in fact act improperly, they initiated an EXTREMELY narrow investigation designed to not look into almost all of their investigative activities. This is completely the opposite approach that the NCAA uses when dealing with schools (Reggie Johnson was suspended 1 game for things completely unrelated to the Nevin Shapiro case, because the NCAA decided to comb through Miami’s entire athletic department after Shapiro opened the door).
- The NCAA used a scalpel to exclude exactly the information that was related to the depositions (directly or indirectly), and NOT exclude anything else even though they now know their investigator was corrupt and had contempt for investigative rules and fair play.
- The NCAA declared themselves a just and good organization despite this foul play reaching the highest levels of the NCAA organization and ignoring the fact that this foul play was in fact the result of investigators acting on Emmert’s own instruction to get “creative.”
In light of all that, Emmert has decided to go full steam ahead with this clearly flawed and tainted investigation, declaring that the tumor has been excised. Unfortunately, it’s apparent to anyone with any sort of a moral compass or perspective, that the issue here was not an error in judgment by an investigator, but the end result of an organization that puts their bylaws above the rule of the law, and condones any and all actions to continue to enforce their rules. The reason they only found this one instance of malfeasance is because they intentionally only looked here. Many a member institution would love to be judged by the same standard with which the NCAA judges itself.
In punishing Penn State, Emmert said:
Our constitution and bylaws make it perfectly clear that the association exists not simply to promote fair play on the field but to insist that athletic programs provide positive moral models for our students, enhance the integrity of higher education and promote the values of civility, honesty and responsibility.
The sanctions we are imposing are based upon these most fundamental principles of the NCAA.
Now, if only the NCAA could live up to that standard by which they so easily pass judgment on others. I won’t hold my breath, and await a Notice Of Allegations likely to accuse Miami of malfeasance, Lack of Institutional Control, and failure to monitor their program. Oh irony, thy name is Emmert.