Miami Investigation Scandal Raises Ethical and Legal Questions

In what is a fairly shocking turn in an already shocking case, an NCAA investigator is defending the tactics used by the enforcement staff in the Miami/Nevin Shapiro case. Critically, the investigator claims that this is about NCAA policy at most, nothing more:

This NCAA investigator, who demanded anonymity, raised a different angle to that issue. It broke no law, he said. It didn’t involve a twisted ethical question, he said.

“There are a lot of us wondering just what the purpose of (Emmert’s news conference) was — and why it happened in the first place,’’ the investigator said.

When asked if there was an ethical question in an attorney using legal means to depose someone the NCAA otherwise couldn’t, the investigator was certain.

“This was good, investigative work,’’ he said.

That is a bold claim given that the actions by the investigators in the Miami case arguably violated Indiana’s Rules of Professional Conduct for Attorneys and constitute an abuse of process.

Assuming that the investigators involved in the Miami case are attorneys, they would most likely be licensed to practice law in the state of Indiana. Their conduct would be covered by Indiana’s Rules of Professional Conduct. This is from Rule 3.1, Meritorious Claims and Contentions:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

A lawyer bringing up NCAA rules is raising an issue which has no basis in law since NCAA rules are not part of the law. There is also no good faith argument for modifying the law in a way which would permit the NCAA to have subpoena power or use the processes of the court system to enforce its rules. A lawyer who violates these rules would go before Indiana’s Disciplinary Commission, and be subject to penalties ranging from a private administrative admonishment up to disbarment.

But that would only apply if the investigators were lawyers, licensed to practice in Indiana. Even if they were not lawyers, the actions may constitute an abuse of process. Abuse of process is a tort claim that has two key elements:

  • Improper use of the court’s process;
  • Ulterior or improper motive of the defendant in exercising such illegal use of process;

Investigators sitting in on a deposition in a bankruptcy case would be an improper use of that proceeding. And enforcing NCAA rules is an ulterior or improper motive, totally irrelevant to a bankruptcy case. To win an abuse of process case, a plaintiff also has to prove damages, and courts are cautious with these claims since they could discourage people from using the judicial process. So it would still be a big leap to say the NCAA and/or its investigators would be liable.

But between professional conduct rules and abuse of process, the claim that there is no serious ethical or legal question is not credible. This is about more than just internal NCAA policy. This is about the NCAA investigators using a tool of the court that it does not and should not have, to accomplish something for which it was never intended.

3 Responses to “Miami Investigation Scandal Raises Ethical and Legal Questions”

  1. First of all, NCAA investigators are doing their job if they utilize, read, or even listen to statements made under oath in public by fact witnesses who may have knowledge pertaining to an NCAA investigation: they are gathering pertinent facts. The NCAA’s lack of subpoena power nowhere suddenly transmutes into some NCAA explicit proscription against the NCAA’s use of any.statement, from any jurisdiction or venue, which was obtained through any exercise of some subpoena power by someone else. I’ll even argue that the FAILURE of a NCAA investigator to track down and read the sworn and transcribed testimony of a bankruptcy witness in this case may have been malfeasance on the part of the investigator.

    Second, we just don’t know enough. So little is known about the facts of the claimed NCAA investigator misconduct here, and reports vary — so it’s unclear, for example, who was paid what, and the purpose of the payment. Some reports suggest that payment to Atty. Perez were for deposition transcript costs.

    Third, the most glaring misconduct thus far is by Pres Mark “Doo-Doo Process” Emmert, who has shown a schoolkid’s understanding of due process by making extremely pejorative, conclusive statements judging the conduct of one or more NCAA staffers PRIOR TO his own independent investigation even having started – much less finished.

    The NCAA is de facto corrupt, and it’s regulatory/enforcement arm is run by a bunch of amateurs (including Emmert) whose primary animating purpose is to fuel the fiction that its’ professional entertainer-athletes are amateurs. That being said, judgment ought be suspended until Emmert’s Independent report issues. In the meantime, Emmert’s over his head, and should resign.

  2. 100% agree with the investigator. If the questions Atty Perez asked were “relevant” to BK (ie where money went), Perez was entitled to ask, and the coincidental benefit to the NCAA doesn’t matter. If you know anything about litigation, “relevance” is an extremely broad standard. Even if the questions were totally out of left field, then any relevance objection to the question is waived unless the deponent asserted it.

    If this is “abuse of process,” then such abuse takes place in the majority of litigated cases.

  3. I’ll make another point here: the commentators have been squawking loud about “conflict of interest” on the part of Atty Perez. (Re-stating here that all facts are not yet available), I will assert that anyone who believes that the mere fact that one lawyer simultaneously represents two clients NECESSARILY means that that lawyer has an illegal and inappropriate conflict of interest (requiring him to shed representation of one or both clients) has most likely never practiced law. It happens all the time, and given the precautionary footwork (beyond the scope of this discussion), can be entirely legal, appropriate, and in everyone’s best interest. Good, ethical lawyers do it all the time.

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