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.