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Syracuse: How Not to Win Friends and Influence the NCAA

Attitude is everything. As Syracuse University heads into Sweet Sixteen action this Thursday against Indiana amid reports of a wide-ranging investigation of its athletics program, the Orangemen might be wise to remember that, instead of poking the NCAA snake.

Just before this year’s March Madness began, news broke that NCAA investigators were looking at the Athletic Department for a number of violations. As vigorously reported by The Post Standard of Central New York on syracuse.com, much of the not-so-rumored probe centers on the men’s basketball program over the past five years. Further, the inquiry is separate and unrelated to an earlier probe of alleged sexual abuse by former assistant coach Bernie Fine.

According to the Post Standard story that ran on March 20, 2013, NCAA investigators have conducted face-to-face interviews of Syracuse employees or former employees for at least the past school year in a broadly-scoped investigation that includes the handling of former basketball player Fab Melo’s academic eligibility and a 2007 alleged sexual assault case involving three other players. This information was provided to the paper by two named and two unnamed sources, and seems to confirm an earlier report by CBS Sports that the basketball team has been under the microscope for years for major and wide-ranging transgressions that –although also encompassing the football program – primarily involve the men’s basketball team.

The latest NCAA dig – if ongoing as reported – comes hard on the heels of another confirmed inquiry into years-old allegations that Syracuse basketball players were allowed to practice and play in games despite being in violation of the school’s drug policy. The combination has B. David Ridpath, Associate Professor of Sports Administration at Ohio University and a former compliance officer, seeing enough smoke to warrant a search for fire.

As The Post Standard reports, the current probe into the basketball team’s academics coincides with a shakeup in the Student-Athlete Academic Services Office that helps players stay eligible. Three people in the department have changed jobs since Summer 2011. The university also has advertised a new position – Assistant Provost for Student-Athlete Academic Services – which would implement strategies “to facilitate the academic success” of Syracuse athletes. A school official said last week that “the position was not created as a result of any NCAA request or required as part of any NCAA investigation, [but as part of] an effort in continuous improvement to ensure that, as we enter the ACC, we will have a seamless and focused effort to provide our student-athletes the integrated support that they need to excel academically.”

While that has been unfolding, an NCAA investigator was in Central New York in August questioning at least one former Syracuse associate dean about the university’s handling of a 2007 complaint against three basketball players. The former dean, David Potter, confirmed that NCAA Investigator Meg Babcock Locker, spent two hours interviewing him at his home in Manlius, New York, and that he recommended she also interview Syracuse professor and former dean Cathryn Newton about how the school handled an October 2007 complaint from a freshman who said she was sexually assaulted at an off-campus party by basketball players Jonny Flynn, Scoop Jardine, and Rick Jackson, also then-freshmen.

Neither Locker nor Newton would comment on whether they had spoken, although the latter did tell the paper that “[a]n arts and sciences student filed a complaint that was specific and credible, and that complaint did not progress in the usual way.” The NCAA’s interest in the case apparently dated back to 2007 or 2008, when a Syracuse philosophy professor, Sam Gorovitz, called the NCAA’s then-president, Myles Brand, and spoke to him about the allegations directly. Brand had his head of enforcement, David Didion, call Gorovitz, but when Brand died in 2009, the inquiry apparently languished.

According to The Post Standard archives, after Potter got Syracuse to re-open the case in 2008, the university’s judicial board found that three players and one other student were not guilty of sexual assault but that they were responsible for conduct “that threatened the mental health” of the reporting student. All were placed on disciplinary probation through the Spring 2011 semester, ordered to perform 30 hours of community service and to attend gender-sensitivity and domestic violence educational programs, and required to be evaluated to determine if they need any further counseling. The case was also heard in August 2008 by an Onondaga County grand jury, which did not charge the three basketball players with any criminal offenses.

Ridpath, the former compliance officer, noted that while the NCAA puts a four-year statute of limitations on most infractions, there is no expiration date for investigating more serious cases of disregarding the rules. Presumably, that would cover the alleged irregularities in the sexual assault matter and “would certainly be the case if they were [improperly] trying to keep kids eligible.” He also indicated that the breadth of the investigation and the fact that the NCAA traveled to conduct interviews signal that the inquiry is significant.

Syracuse’s administrative response has been a steady refusal to confirm or deny the existence or status or this latest alleged investigation and a pledge to work with the NCAA on all things compliance. This is neither unexpected nor improper. As in the corporate world, a desire to maintain privilege and confidentiality as regards investigations is important and respected. He same can’t be said for the response of Jim Boeheim.

ESPN.com reported that when asked about the investigation of his program before a first-round tournament game in San Jose last Wednesday, the basketball coach said, “[s]ame story they had last year at this time. I guess that’s annual. I guess next year we’ll get it again.” Boeheim would not answer any specific questions about the reports but said he wasn’t bothered by the timing.

“We’re concerned about playing Montana,” he said. “What people write or say, you know, there’s 30,000 people in the Dome yelling at me all the time. People yell at their television sets. I tell them I can’t hear them, but they still yell at them. There’s no distractions for me. And these players, there’s absolutely no distractions for them. They’re here to play Montana, and that’s it.”

In the era of stepped-up enforcement that the NCAA has promised, this tone at the top – and Boeheim IS the top of the basketball program – cannot be good for Syracuse. Whether the allegations against the school are well-founded or not, playing the “I can’t be worried about possible cheating and assaults with Montana in the crosshairs” is both philosophically and tactically problematic. It is just the type of attitude that the NCAA has pledged to adjust and underestimating its commitment to doing just that is institutionally dangerous.

Just ask Gene Smith and Ohio State.

Not Much Heat in Report on NCAA’s Investigation of Miami

When the NCAA announced in January that it had discovered irregularities in its investigation of rules violations by the University of Miami’s football and men’s basketball programs, pundits howled. Now, in the wake of Monday’s release of the internal investigation report on the activities of the NCAA’s Enforcement Staff in probing allegations about alleged Miami wrongdoing, there is some smoke, but very little fire.

To set the stage, the Miami programs in question were under investigation for improper benefits provided to student athletes by Nevin Shapiro, a booster. According to Shapiro – currently serving 20 years for fraud involving a $930 million Ponzi scheme – he lavished UM recruits and existing players with cash, gifts, and other amenities over the course of his association with the football and basketball teams.

After going down on the criminal conviction, Shapiro sought to shorten his sentence by making amends for some of his wrongs by contacting the NCAA in 2011 to rat out Miami players and staff. He also began assisting the Trustee in a bankruptcy case that sought to claw back some of his illicit payouts so as to make restitution to victims of his crimes. He also remained a cooperating witness for the NCAA, which began digging into the happenings at UM after his call.

On January 23, 2013, NCAA President Mark Emmert called a news conference to announce the discovery that a questionable tactic had been utilized by the organization’s Enforcement Staff in gathering evidence in the Miami investigation and that an internal investigation was to begin to determine if any federal or state laws, NCAA bylaws, or organizational rules had been broken.

The questionable tactic at issue was the NCAA’s use of Shapiro’s criminal defense counsel to obtain testimony from witnesses who were either uncooperative or untruthful with that body’s investigators. Specifically and in the simplest terms, Enforcement Staff point man Ameen Najjar and Shapiro attorney Maria Elena Perez agreed that, in the bankruptcy case, she would depose a handful of problem witnesses who were less-than-helpful to an NCAA that could not privately compel their assistance and accuracy. The Najjar-Perez plan resulted in her conducting two such depositions before disputed payment terms and related issues grounded the operation. Shortly thereafter, the NCAA became aware of this scheme and scuttled the deposition ship.

The Associated Press and other news outlets carried the story and sports talkers and pundits howled for the elimination of the NCAA as a whole, or at least it’s Enforcement Staff. Not willing to let careful analysis and accuracy be an impediment to sensationalizing a story, the AP article and others condemned the NCAA investigators’ actions as illegal, immoral, unethical, and fattening, or worse. They pontificated that “[w]hat is known publicly now, and has been suspected by some for months, is that those investigators never should have known those questions were asked [in the bankruptcy depositions by Perez].”

Angered at this turn of events, Emmert and the NCAA nonetheless commissioned Kenneth L. Wainstein of the Washington, D.C. firm of Cadwalader, Wickersham & Taft LLP to conduct the external review of what happened. The evil that Wainstein and his people found and reported was not much.

In putting the facts of Operation Najjar-Perez through the looking glass, Wainstein and his people found that no NCAA employee violated any federal or state statute, NCAA bylaw, or organizational rule. Nor did the organization or any employee violate any portion of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, or any Bankruptcy Court orders by engaging Perez so that she served two masters – the bankruptcy Trustee and the NCAA – in conducting the depositions at issue.

The sole violation of the NCAA’s own investigative prescriptions – an unwritten one that was more of an understanding, at that – was the hiring of outside counsel Perez by the Enforcement Staff, as opposed to the Legal Staff. The Cadwalader probe found that the NCAA website indicated that outside counsel is to be approved and hired by the latter. Beyond that, the main problem was that Najjar went rogue in coordinating with Perez in contravention to the Legal Staff’s recommendation, and even that was not clearly wrong.

In the end, the supposed scandal boils down to Najjar not heeding the advice of counsel not to do something that was neither illegal nor impermissible and the higher-ups in the Enforcement Staff not monitoring him closely enough to notice that he was not listening to the lawyers.

UM’s response was over the top in response to the Cadwalader report. In a strongly worded statement carried in USA Today, President Donna Shalala claimed Miami had been “wronged” by the NCAA’s investigation of the school; suggested that the investigators’ misconduct “taint[ed] the entire process”; and called for the NCAA to wrap up the case with no penalties beyond those already self-imposed.

Maybe she should read the Cadwalader report. According to it, not only did UM’s inside and outside counsel know of the plan to use the bankruptcy depositions to secure additional information from witnesses in the Miami probe, but one of its attorneys attended one of them by telephone. Indeed, the Cadwalader report characterized the Najjar-UM interaction on the entire depositions plan as coordinated.

In the end, the minor transgressions of the NCAA Enforcement Staff should have little bearing on the ultimate punishment meted out to Miami for its own wrongs – if admitted or found to have been done – even if it doesn’t make for as compelling a story.

NCAA Likely to Mimic Corporate Brethren on Investigations

Like Mark Twain, reports of the NCAA enforcement staff’s death are vastly exaggerated. It is true, even in light of this week’s announcement of a major glitch in the investigation of the University of Miami athletic program that has many pundits and observers mocking Mark Emmert and his troops.

The Hurricanes’ athletic compliance practices have been probed by the NCAA for nearly two years now after allegations of wrongdoing by its football and men’s basketball programs came to light last August. At that time, Yahoo!Sports published accusations brought by a former booster, Nevin Shapiro, about improper payments he made and benefits he gave to Miami athletes in return for their friendship. No stranger to creative financing, Shapiro is presently serving a 20-year term in federal prison for masterminding a $930 million Ponzi scheme.

Since the NCAA probe kicked off, Miami has been cooperating with investigators and has imposed two post-season competition bans upon itself in response to the inquiry. This has proved costly for the school, as the Hurricanes football team would have secured a spot in the Atlantic Coast Conference championship game this past season and – if they had won – would have qualified to play in the BCS Orange Bowl. Needless to say, it is anxious to get the investigation and any penalty into the rear view mirror, as the cost to date in revenue and recruits is significant.

Now, just as the NCAA was seemingly winding down its investigation at Coral Gables, a fly has been found in the ointment. Just two days ago, President Mark Emmert announced that the investigation of the Miami program was tainted to an as-yet undetermined degree by the irregular use of outside counsel to assist NCAA investigators in their work.

An Associated Press story reported that former enforcement staff members worked with the criminal defense attorney for former UM booster and convicted Ponzi scheme architect Nevin Shapiro “to improperly obtain information … through a bankruptcy proceeding that did not involve the NCAA.” One person deposed during Shapiro’s bankruptcy was former Miami equipment-room staffer Sean Allen, and his testimony may be among the information illicitly obtained. The employment or use of the Shapiro attorney by investigators was not approved by the NCAA’s general counsel and apparently only came to light when the lawyer submitted bills for services rendered to the Association.

In response, Emmert hired attorney Kenneth L. Wainstein of Cadwalader, Wickersham & Taft LLP to conduct the external review of what happened. One of the first orders of business for Wainstein is to determine the nature of that contractual arrangement with the attorney in question and what activity by him or her was involved. Regardless of what the answers to those questions may be, they will surely have implications as to the larger conflict-of-interest and impartiality issues that will color the accuracy and reliability of the larger, overall investigative work product.

The talking heads have largely piled on Emmert and the NCAA, continuing a drumbeat that started with the Penn State enforcement action. While reveling in the black eyes that the governing body seems to continue to incur, they miss the larger point.

It appears to this corner that Emmert is trying to take the NCAA out of its old enforcement model – whatever that may have been at any given time or on any given matter – and put it into a new one modeled on the corporate compliance requirements of Chapter Eight of the United States Sentencing Guidelines.

What most pundits fail to understand is that the NCAA is within the USSG’s reach – it is an “organization” as defined therein – and ought to function accordingly. On the enforcement side, this mandates that member schools maintain robust compliance programs, conduct vigorous internal investigations of breakdowns, take unilateral corrective action where appropriate, self-report violations, and lay themselves open to real sanctions and monitoring by the governing body, etc., more in the manner of Eli Lilly or Siemens than unruly fourth graders on the playground.

Indeed, the engagement of Cadwalader, Wickersham & Taft seems to be a case of the physician healing thy self. David Ridpath, Assistant Professor of Sports Administration at Ohio University told USA TODAY Sports’ George Schroeder that “[t]he revelation is the most shocking thing of all. That the NCAA brought it up and that they’re hiring an outside law firm to look at the case is the most surprising thing about this.”

Although Ridpath is a frequent critic of the NCAA’s enforcement arm and the disclosure “makes [him] think [the misconduct] is pretty big”, his commentary says more about this being a departure from past practices. Large gaffe on the Miami probe or not, it appears that the NCAA is prepared to subject itself to investigation by specialized, outside counsel just as it probably will come to expect its members to do in the enforcement future.

For all the handwringing by sportswriters and commentators, it appears that collegiate athletics is simply headed in the direction of playing by the same rules that are mandated for all other organizations – public or private, for-profit or non-profit – under the USSG. With the revenue and attention generated by the success of the NCAA and its member schools, perhaps it is better that this come to pass at the hands of Mark Emmert than at the hands of the same House and/or Senate that likes to threaten tinkering with Major League Baseball’s anti-trust exemption every time a scandal breaks there.

Shakespearean Take on Rutgers and Julie Hermann

The furor over Rutgers’ hiring of Julie Hermann to replace Tim Pernetti as athletic director in the wake of the Mike Rice player-abuse allegations has generated much hand-wringing and mildly-salacious media coverage. But is the school getting punished for Hermann’s supposed past indiscretions while the volleyball coach at Tennessee or for the fact that these issues were not found in advance of her inking a contract to lead the university’s athletic department? And even if the allegations against Hermann were true, would their substance have prevented Rutgers from hiring her, were it not for the unique situation presented by the Rice matter? A similar – albeit lower-profile – case suggests not.

Just last week, Yahoo!Sports reported that the University of Wisconsin at Green Bay was retaining Men’s Head Basketball Coach Brian Wardle in the wake of an investigation into allegations of player abuse. There, three players alleged that Wardle – himself a notable former Marquette b-baller – was verbally abusive to them; compelled one to run conditioning drills when sick, causing him to defecate on himself; was not attentive enough to a player with behavioral issues; and engaged in punitive behavior – such as locker reassignments – towards underperforming players.

The bulk of the claims revolved around Wardle’s frequent and semi-confirmed use of the adjective form of the big kahuna of cuss words – it rhymes with “clucking” but has nothing to do with poultry – in conjunction with various slang terms for a part of the female anatomy located in the lower abdomen. This name-calling was partially acknowledged by the coach – he admitted using some vulgarities but not others – and was done for motivational purposes. Regrettably, these terms are now part of the lexicon of sports and social life for youngsters down to age twelve and can be heard daily on almost any ball diamond or playing field.

There was also significant attention given to Wardle’s supposed recommendation on more than one occasion that two players might benefit athletically from gaining accessing some of the same female anatomy referenced above as a means of improving play. Perhaps “lay-ups” have changed in the vernacular as well.

The report prepared by the outside counsel retained by UWGB to conduct an internal investigation of the matter found some of the allegations to be unfounded and others to be outside the scope of its inquiry. As to the coarse language and sexual references, it found that while these might have been unpleasant, their use did not violate any of the school’s athletics or coaching policies. It should also be noted that the report also found those policies to be weak or ill-defined and encouraged strengthening the same to create more bright-line parameters for staff to mind.

Had Tennessee dug into the allegations– including calling her charges “whores, alcoholics, and learning disabled” – against Hermann sixteen years ago or had Rutgers found them and dug into them recently, one would suspect that the result would be much like that at UWGB. Hermann would have likely been found to have employed aggressive and confrontational coaching techniques that – though once commonplace – are no longer in vogue in today’s kinder and gentler academic and athletic cultures but that no UT, SEC, or NCAA rules were violated by the use of those methods.

Although the latest reports are that Rutgers will stand by Hermann and that she is not going anywhere, the hoopla enveloping the New Jersey school falls largely at the feet of the executive search firm that missed the nugget from Hermann’s past that has resulted in the present firestorm.

An Asbury Park Press story reported that the university had paid $70,000 to Parker Executive Search of Atlanta for the background check and work-up on Hermann. That investigation specifically included “conduct[ing] media reviews for potentially controversial areas of concern” and the due diligence team surely missed the boat on this one. Doing so might have been excusable were it not for the very same allegations surrounding Mike Rice’s departure from the Rutgers athletic program. Searching for any indicia of similar allegations in Hermann’s background should have been a top priority and surely someone at Tennessee during her tenure there should and would have recalled the complaint letter of her former team.

That said, it seems that Hermann and Rutgers will continue to get pummeled for not for her actual sins – if any – but for the professionals that the school hired not finding those supposed transgressions. Assuming that Hermann would have gotten a clean bill of health if an investigation into her past coaching practices had been undertaken and that she would have then gotten the Rutgers AD job just the same, then – while terrific media fodder – all of this is likely much ado about nothing.

Focus for Next Rutgers Investigation

Amidst the fallout for the administration and athletic staff at Rutgers in the wake of the Mike Rice affair becoming known to the public, the school is about to commission another investigation – presumably by additional outside counsel – into the matter. This will be the second time that the school is examined by an independent set of eyes and the focus will surely be the same, but the personnel different.

According to the seminal Outside the Lines story on the Rutgers scandal by ESPN, Athletic Director Tim Pernetti first watched video of Rice’s unique practice behavior on November 26, 2012. Pernetti claimed in his resignation letter of last Friday that his gut told him to fire the men’s basketball coach on the spot, but he then consulted – and properly so – with his boss, University President Robert L. Barchi; Interim General Counsel John B. Wolf; and several human resources employees. Together, they decided to hire John P. Lacey, a northern New Jersey lawyer and former federal prosecutor, to conduct an independent investigation to determine whether Rice had violated any university policies and/or the terms of his employment contract with the school.

On Nov. 27, Pernetti met with Lacey, who was given a copy of the video and his assignment. Seventeen days and 52 pages later, Rutgers had the results.

The report made it clear that Lacey concluded Rice’s behavior violated Rutgers policy barring workplace violence: “In sum, [I] believe there is sufficient evidence to find that certain actions of Coach Rice did ‘cross the line’ of permissible conduct and that such actions constituted harassment or intimidation within Rutgers’ Policy, Section 60.1.13.” That policy is Rutgers’ Workplace Violence Policy, in which “behavior [that] would be interpreted by a reasonable person as being evidenced (sic) of intent to cause physical harm to individuals or property” is prohibited.

Lacey wrote that “due to the intensity with which Coach Rice engaged in some of the misconduct, [I] believe that AD Pernetti could reasonably determine that Coach Rice’s actions tended to embarrass and bring shame or disgrace to Rutgers in violation of Coach Rice’s employment with Rutgers.” He also concluded that Rice violated other terms of his five-year contract that would pay him $700,000 for the 2013-14 season that were added after previous disciplinary issues came to Pernetti’s attention.

While Lacey found that Rice “did engage in certain conduct that went beyond mere cursing, including occasions where [he] used coarse, inappropriate and insulting language during practices and workouts, verbally attacked players in a manner outside the bounds of proper coaching, shoved and grabbed players on multiple occasions and engaged in other boorish and immature behavior,” it did not violate additional university policies – including Rutgers’ anti-bullying policy – and that the coach’s conduct “did not create a ‘hostile work environment’ as that term is understood in connection with anti-discrimination and anti-harassment policies.”

Speaking with Pernetti nearly every day about the progress of his inquiry, Lacey interviewed six players, one former player, a former player who transferred from Rutgers, all of Rice’s assistants and other support personnel in the basketball program, Rice himself, self-proclaimed whistleblower Eric Murdock, Pernetti, and a sports psychologist whom Pernetti consulted earlier this year. In addition, he reviewed nearly 50 hours of videotaped practices – roughly half of all practice time – during the coach’s tenure.

Interestingly, Lacey’s investigation also found that most players didn’t mind Rice’s tactics and that they understood that their coach was throwing basketballs at them and shoving them and screaming obscenities at them in a bid to make them better. They told Lacey that Rice “cared” about them and that they had bought into his practice philosophy that he was attempting to make them “comfortable” in the “chaos” of a basketball game.

In light of all of this, the problem for Rutgers was not and is not the response to the reports about Rice’s behavior. Contrary to the clucking of media tongues about Pernetti’s triaging of the situation and actions in light of the same, the athletic director did what is and should expected of organizations in light of compliance and ethics standards and practices. He should not be pilloried for undertaking the internal probe of the men’s basketball program instead of summarily discharging Rice.

Pernetti’s action or inaction and that of other school administrators – Barchi, Wolf, and Mark Hershhorn, chairman of the school’s Board of Governor’s Committee on Intercollegiate Athletics – in the wake of the Lacey report, however, should be subject to inquiry at this juncture. Indeed, a New York Times article and an NBC Sports report indicate that the university is poised to engage additional outside counsel to do just that.

The coming probe will in turn determine whether any of these administrators violated university policies or their own contractual obligations in how they dealt with Rice after the completion of the Lacey investigation. A factor in this may be the possibility – raised by AOL in an online video report – that the coach’s earlier punishment was colored by Rutgers’ then-pending application to join the Big 10 Conference and a desire not to rock that very lucrative boat. It’s a possibility or contributing factor that should certainly be explored in no small detail.

Regardless of whether breaches of required conduct are found or not, Barchi’s acknowledgement in a press conference that – while he was fully briefed on Rice’s actions and suspension – he had never seen the 30-minute video of his coach’s antics until last week, is particularly confounding. Citing a busy administrative schedule and the organizational need to rely upon the advice and counsel of underlings as a justification for not giving the evidence at least the once-over seems a poor excuse for his ignorance of the situation.

As the adage goes, those who do not learn from history are doomed to repeat it. In claiming justifiable ignorance, Barchi may be mimicking the error of Penn State’s Graham Spanier, much to his school’s detriment and chagrin.

Waiving Off Due Process Penalty Flag in Penn State Case

In a post anticipating yesterday’s announcement of NCAA sanctions against the Nittany Lions, Dan Wetzel of Yahoo! Sports wrote the rumor was that while Penn State would be spared the death penalty, the ones imposed would make if wish it wasn’t.  An NCAA source indicated that the punishment was, “Unprecedented . . . just unprecedented.”

And then the hammer fell on Penn State yesterday morning.

Surely the penalties imposed were never before seen from the NCAA – the levying of a $60 million fine; a four-year ban on postseason play; a reduction of scholarships from 25 down to 15 per year for the next four years; the vacating of all victories from 1998-2011; and a five-year probationary period with academic monitoring – but as to whether this sounds the death knell of the program is for the experts and pundits to debate over the coming weeks and months.

One thing is clear.  The Freeh Report formed the basis for NCAA President Mark Emmert’s response.

According to Wetzel’s sources, the sanctions came almost entirely from Emmert and “[r]ather than allowing the tedious infractions process to churn on for years, there was no NCAA investigation, no hearings, no letter of inquiry, no reports, no chance for formal response, no nothing.” His assessment continued by noting that “[r]ather than wait for criminal cases and every last bit of evidence to trickle in, this was Emmert reading the school’s own Freeh Commission report and deciding enough was enough.”

Some commentators questioned this shortcutting of the normal infractions process.

As reported by Reuters, Geoffrey Rapp, a sports law professor at the University of Toledo opined that:

“Unfortunately, it looks a little bit like ‘$60 million in fines, rich school gets to basically buy its way out of being investigated.

“What’s happening here is the NCAA is imposing punishments which sound quite Draconian but they’re essentially conducting no investigation.”

“It looks a little bit like exactly the same kind of thing that Penn State is being punished for and that’s rushing to judgment, acting out of a concern for publicity and failing to investigate when you had an obligation to investigate.”

Michael McCann, Director of the Sports Law Institute and Professor of Law at Vermont Law School, a distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law, and a legal analyst for SI.com had similar – if less incendiary – comments.

He wrote:

“ . . . I’m less comfortable with how fast the ruling was made. The NCAA clearly bypassed its normal procedure for investigating and sanctioning. This procedure often takes more than a year and involves several hearings.”

“Consider what the NCAA did not give Penn State. Normally the association notifies the school that an official inquiry is going to be held. Notice is followed by an investigation and, if the NCAA finds fault, a written explanation of the allegations is given. The school has 90 days to respond, after which it may request more time to respond or schedule a hearing before the NCAA’s Committee on Infractions.”

“But does the NCAA’s swift justice mean it will now regularly bypass its normal infractions process when it penalizes other schools? Will “swift justice” become the norm? Probably not, because the Penn State scandal is unique on many levels, including that the NCAA could rely on an extensive internal report commissioned by the university itself.”

“Few schools could afford to commission such an internal report; even fewer would choose to do so. I imagine the NCAA would probably prefer to employ its more deliberate and transparent process as often as possible. A respected process helps to legitimatize NCAA penalties. If NCAA members were routinely subject to swift justice, they may seek alternatives to the NCAA for organizing games.”

Clearly, commentators such as these have excellent points to make about the scope and breadth of the punishments.  The sports talk radio punditry is all over the board on this issue – from those maintaining that the cut in scholarships is fatal and constitutes cruel and unusual punishment to those noting that the $60 million fine represents Penn State only making due without one year’s revenue from the storied football program – and that is a worthwhile debate.

But many professional and private commentators have voiced concerns about a lack of due process in the entire matter – an unusual concept in a private-sector enforcement between what is essentially a trade group and one of its members – and the alleged failure of the NCAA to conduct a parallel investigation to the Freeh probe.

While they may raise issues that are problematic – particularly Professor McCann’s excellent point about the inability of other schools to conduct a Freeh-type internal investigation – going forward, these are non-issue in Penn State’s case.  For any of a variety of possible reasons, the school consented to the sanctions imposed upon it.  In so doing, it is well within its rights to waive any and all of the procedural safeguards available to it, if it so chooses.

Somewhat analogous to a criminal case, Penn State was free to surrender its rights to a preliminary hearing, formal presentment of charges, trial, and appeal, and accept an agreed-upon sentence.  It happens daily in courtrooms across the country and the Nittany Lions essentially did the same thing in a private, administrative setting.  Other schools are rightly free to do the opposite and put the NCAA to its proof.

The same is true with respect to the failure-to-investigate concerns.

While the NCAA is not a government agency and its actions do not constitute government enforcement, what has transpired here is analogous to that occurring in the non-collegiate corporate world.  The DOJ and SEC not only regularly accept the credible results of organizations’ own internal investigations – see the Johnson & Johnson case – but actually encourage producing the same for their use and benefit, in order to save time and money on duplicate efforts.

Putting the NCAA thought the paces of a parallel investigation would serve no purpose if Penn State’s intention was – and remained so ever since the release of the Freeh Report – to agree to the sanctions imposed upon it.  Especially since the costs of parallel investigations are customarily assessed against a probe’s target as part of the penalty imposed.

This savings of additional costs – Penn State reportedly already spent in excess of $6 million on the Freeh inquiry – is also within the purview of the school and in line with organizational enforcement practices.

And now it’s first down going the other way.

Best Not to Jump Gun in Collegiate Athletics Investigations

Back on March 3, 2011, Yahoo!Sports broke the story of a Houston-based high school football talent evaluator named Willie Lyles and his relationship with the University of Oregon’s program.  The relationship generated interest because of a payment from the University to Willie J. Lyles dba Complete Sporting Service in the amount of $25,000 for “national scouting services.”  

Because the amount seemed high, Yahoo!Sports and other media began firing off public records requests to the University in an attempt to pin down the return on that investment by the state institution.  The yield turned out to be outdated and regional – at best – scouting reports and reviews of prospects that literally did not seem to fit the bill. 

What Lyles did seem to do, was act as a conduit for a number of players who ultimately committed to attend Oregon and play football there.  Running afoul of strict NCAA guidelines on steering student-athletes to colleges and universities could land OU in quite a bit of trouble, according to CBSSports.com’s EYE ON COLLEGE FOOTBALL, if that proved to be the true nature of Lyles’ services on behalf of the Ducks. 

In a July 1, 2011 posting on rivals.com, Lyles detailed a very cozy relationship with recruits and the Oregon football staff that seemed to indicate a possible crossing of the NCAA line on improper recruiting.  Cause for additional head scratching, as reported at sportsbybrooks.com on July 5, 2011, was Chip Kelly’s initially telling The Oregonian columnist and radio talk show host John Canzano that he did not know Willie Lyles, his having earlier authorized the payment of a substantial amount of money to the scout notwithstanding.

Despite this mounting evidence that there may be more to the matter than the Ducks’ football staff simply being poor shoppers, University of Oregon President Richard Lariviere backed his people.  As reported in a September 17, 2011 Oregonian story on the NCAA probe, he affirmed that he had “very high confidence” in his football program and its staff, and that Head Coach Chip Kelly’s job was “quite safe”. 

The NCAA investigation continues and the end result may not be known for some time yet.  Whether the OU football program violated athletic recruiting rules is for the NCAA to determine, and if so, to mete out punishment.  But like the head of any organization facing down an investigation by a governing body, it is better to look – preferably with a robust internal investigation – before leaping. Showing the wisdom of this course of action were the foibles of The Ohio State University at the start of 2011.

OSU President E. Gordon Gee and Athletic Director Gene Smith underestimated the seriousness of NCAA violations that their own football program faced early last year.  Despite serious oversight violations, Early on, Gee not only safeguarded Jim Tressel’s employment before all of the NCAA’s cards were revealed, but infamously hoped that the head coach would not fire him (insert rim shot here).  Smith, too, consistently gave short shrift to the possibility of major infractions being found and serious penalties being imposed throughout the NCAA’s investigation of his program.  Hubris has a price:  Tressel is now in an administrative post at the University of Akron and OSU is bowl ineligible next year. 

So, will the University of Oregon’s top administrator be proved prescient in this go-round or – like the Buckeyes – will he be seen to have stumbled out of the blocks a bit too early?

Scoreboard Update: Ohio State Continues to Take Pounding in Second Half

To refresh the reader, Tressel failed to report to school officials that he received a tip last fall that football players were trading OSU swag for tattoos at a Columbus-area ink parlor.  This activity came to the attention of narcotics agents who found autographed and other memorabilia in the home of the tattoo parlor’s owner during the execution of a search warrant. 

The school did what appeared to be a very cursory investigation of Tressel’s alleged violation of the school’s athletic code of conduct and his employment contract by not notifying higher-ups of the allegations.  Thereafter, OSU called a press conference at which it compelled Tressel to acknowledge his culpability, suspended him from coaching for the first two – later five – games of the coming season, and fined him $250,000.  As in the compliance world generally, it was hoped that this self-reporting and self-imposed punishment would appease the NCAA gods and result in no further sanctions against the University.

Now the NCAA is near to issuing a ruling on the matter and the possibility of a more severe punishment could be costly to OSU’s football program.  And its revamped internal investigation of the entire matter is running up some big numbers, too. 

As reported last month at SI.com, Ohio State Athletic Director Gene Smith recently said  that the $250,000 fine levied by the University against Tressel for violating NCAA rules may not even cover the cost of the renewed investigation.  He would not say how much the inquiry would cost, but indicated that the University has hired two companies that he called “expensive” to lend help to the effort. Smith also noted that the school might have to make up the cost difference by dipping into the money it made from a Sugar Bowl appearance last New Year’s Day.  He called the matter “a nightmare.”

But much as OSU tries to lay its woes entirely at the feet of the coach, it has a share in turning this into the bad and costly dream that it has become. 

It was plain from the beginning that the Buckeyes did not have the appropriate “tone at the top” as is said in compliance-speak.  At the aforementioned press conference, OSU President E. Gordon Gee – assumedly armed with the quickly-done in-house review of the matter – joked that he had not considered firing his coach while stating, “I’m just hopeful [he] doesn’t dismiss me.”  The University’s trustees ought to be thankful that this wasn’t an FCPA investigation and that Gee wasn’t talking to the DOJ.

The internal investigation of this matter by outside counsel likely should  have involved (1) interviewing and cross-checking the accounts of somewhere between eight and twenty witnesses, (2) capturing and reviewing e-mails and other electronic communications of as many individuals, (3) establishing a liaison to the federal drug trafficking investigation to corroborate sequences of events and other information, (4) producing a timeline of alleged violations, (5) identifying compliance and ethics weaknesses that contributed to the same, and (6) making recommendations for remedial compliance and ethics measures to protect against recurrence.   Depending upon individual and technological availabilities, completion of these tasks should have taken anywhere from two to eight weeks, absent unforeseen circumstances.  

Done right and from the start, the cost surely would not have exceeded the quarter million dollars that AD Smith now predicts it will.  As a member of the NCAA Infractions Committee, he should have been aware of the seriousness of this matter and the best practices available to look into the same.  Instead, OSU seemingly took shortcuts and now owes substantially larger sums of money to outside companies for re-doing or rehabilitating the original in-house investigation that was insufficient. 

In a classic case of paying later and paying more, OSU is losing this game.

 

Ohio State’s First Half Investigations Fumble

As documented by Charles Robinson and Dan Wetzel at rivals.com, while Ohio State was prepping to play Arkansas in last year’s Sugar Bowl, it announced at a press conference on December 23, 2010 that it had become aware that five players, including star quarterback Terrelle Pryor, star running back Dan Herron, and star wideout DeVier Posey, had sold OSU memorabilia at discounted prices to the owner of a Columbus-area tattoo parlor.  Such actions violated NCAA, Big Ten Conference, and OSU rules. 

At the presser, Athletic Director Gene Smith indicated that the school had become aware of the allegations just two weeks earlier on December 7, 2010 and had launched an immediate internal investigation.  The inquiry took ten days and concluded when the improper sales by the five players were confirmed.  Smith further reported that the NCAA had meted out five-game suspensions for the players involved, commencing at the start of the 2011 season.  It would also allow the players to participate in the 2010 Sugar Bowl.  That being said, the matter was publicly considered closed. 

Until this Tuesday.

USA Today’s CAMPUSRIVALRY reported that Ohio State disclosed to the NCAA on February 3, 2011, that Tressel had known about the memorabilia sales allegations as far back as April, 2010.  At that time, he neither looked into the matter nor notified the school’s compliance staff or higher-ups of the same.  This was contrary to his affirmative duty to do so as specified in his employment contract with the university.  As of this writing, the University has suspended him for the first two games of 2011 and fined him $250,000.  OSU is hoping that the NCAA does not re-think these sanctions and come down harder on Tressel and the school in the coming days.   

Very early on, Ohio State lost its grip on the ball by conducting its own internal investigation into the original allegations against the five tattoo afficianados.   With so much riding on the economic, recruiting, and public relations juggernaut that is OSU football, it is not hard to see how and why in-house personnel might not leave every stone unturned.  As the New Year’s Day bowl approached, surely there was a very great incentive to determine that the memorabilia sales were an isolated incident involving five knuckled-headed but lovable kids who just wanted discounted ink jobs and call it a day.  If that is what was done, then additional shame on OSU.  The memorabilia scandal and Tressel’s possible knowledge of it should have been on the radar screen, and apparently were not.  

Ohio State retained an outside consulting firm to assist it with its inquiry into Tressel’s failures on January 21, 2011.  It should have gone to outside counsel a month earlier, when the initial inquiry into the memorabilia sales was on the front burner .  Much as AD Smith tried to spin these two incidents as wholly unrelated, the opposite is true.  They are inescapably linked and somebody should have been looking for additional ramifications on December 7, 2010.  One of the very first issues that independent investigators would have pinned down at that time was who in the OSU community knew what and when, and that surely would have included Tressel.  Now the University’s initial efforts look incomplete at best.  Should the original investigators be investigated?  

With this tremendous distraction and Tressel and the players sidelined for parts of next season, Michigan is licking its chops.

 

 

 
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