Why An NCAA Miami Settlement is Unlikely

In the wake of the NCAA’s release of the results of its external review, many have called on the NCAA to end its investigation of Miami and essentially settle the case. There are a lot of reasons to recommend this course of action.

• Miami has already self-imposed penalties.
• The NCAA would be exposing itself to a tough lawsuit if it imposes significant penalties.
• The case has gone on long enough and everyone is sick of it.

The NCAA has a mechanism for a settlement, known as summary disposition.

In summary disposition, the enforcement staff and the institution agree to a set of findings and penalties, which are then presented to the Committee on Infractions who can reject the whole thing, accept the whole thing, or accept the findings and order a hearing to determine penalties. Involved individuals do not have to participate, but can as well.

With this available and self-imposed penalties already taken, it would seem like the NCAA should take the easy way out and just settle the case right? But that is unlikely to happen because of a number of factors involved in a case this large and this complex, which has had this many twists and turns.

In Miami president Donna Shalala’s statement following the release of the NCAA’s report, she very quickly pointed to the university’s self-imposed sanctions:

Where the evidence of NCAA violations has been substantiated, we have self-imposed appropriate sanctions, including unilaterally eliminating once-in-a-lifetime opportunities for our students and coaches over the past two years, and disciplining and withholding players from competition.

Miami has also self-imposed the loss of an unpublished number of scholarships as well. But missing from those penalties are any against the basketball program. Miami declared ineligible and had reinstated a number of men’s basketball players, but never imposed any penalty against the basketball program itself, like a loss of scholarships or a postseason ban.

With no self-imposed penalties so far in basketball beyond eligibility issues, that will be a significant stumbling block to a settlement. Especially because one of the more explosive allegations in the original Yahoo! report, that an assistant coach requested and received $10,000 from Nevin Shaprio to obtain the commitment of DeQuan Jones (the money was later returned to Shapiro) involved Sean Allen. Allen was one of two principles in the story that the NCAA impermissibly deposed and whose testimony has been thrown out.

Without knowing which interviews had to be thrown out and with no indications from Miami, we cannot know whether the NCAA has anything on the basketball program at all. In addition, we also do not know what allegtions might have been touched on in the now-tossed depositions and interviews, but might have been corroborated through other permissible means. Those allegations are likely to be the source of the greatest controversy and potential liability for the NCAA.

Beyond Miami and the enforcement staff though, there are two other parties who could hold up a comprehensive settlement. The former Miami coaches that were facing show-cause orders are unlikely to agree to any sort of plea bargain. The only settlement they will accept is one that exonerates them completely, or maybe one that includes a show-cause order that acknowledges the NCAA’s mistakes and includes no penalties that impact their career.

The Committee on Infractions also has to approve any summary disposition agreement. Where they stand on this issue is unknown. They may, like many in the membership, be outraged at the national office’s conduct and would be amenable to letting Miami off. On the other hand, this is finally a situation where the enforcement staff clearly screwed up, and the COI could look better by comparison if they quickly and professionally saw the case to conclusion.

The threat of litigation in this case, which is almost certain, also argues against a settlement unless every involved party can agree to one. When (not if) the NCAA gets sued over this case, how closely the NCAA followed its own procedures will be at issue. We already know the NCAA failed once on that front, but has taken steps to correct that. What can be substantiated and who is responsible for what based on the remaining evidence is the critical question.

If the NCAA reaches a settlement with Miami (possible) but not the coaches (also possible), and has to go to a hearing with just the coaches, they will raise that issue in litigation. It is better to have everyone dragged through as much of the NCAA process as possible because that process will be scrutinized. Especially if one party gets to skip it and gets off easily, but another does not and ends up with signficant punishment.

The other possibility is that the NCAA step outside the normal enforcement system and come to a consent decree with everyone. Unlike Penn State, that consent decree would have to be very favorable to everyone involved. The two big advantages is that the Executive Committee and Board of Directors can eliminate the enforcement staff and Committee on Infractions from the process and a consent decree can include an agreement to waive the right to sue the NCAA, just like Penn State’s did.

But the disadvantages are enormous. Going outside normal procedure to fix a problem of not following procedure is going to be widely criticized. Firing up the mechanisms used in the Penn State case fuels speculation that it will become business as usual. In addition, NCAA president Mark Emmert would have to resign or be fired as part of it, because his involvement would be a PR disaster and going around him (say to general counsel Donald Remy) shows him to be powerless. This might be a plus to a consent decree, based on the eye of the beholder, but it is certainly another complication.

The best way for the NCAA to get out of this case is for the remaining allegations and information to go to the Committee on Infractions, the designated fact finder for major violations, and for the COI or the Infractions Appeals Committee to let Miami off with time served and to cut the coaches a break, assuming any violations are substantiated. Then procedure has been followed, no one has been punished even more harshly, and the NCAA has done the best it can to prepare for the coming lawsuits.