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.