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.
