Shapiro Letter Raises Fundamental Questions About Enforcement’s Role
I am unable to muster the breathless outrage that Dennis Dodd did regarding the latest development in the ongoing saga of how the NCAA built its case against Miami:
According to the AP, Ameen Najjar wrote on official NCAA letterhead to a federal judge attempting to reduce Shapiro’s sentence. Not only that, Najjar – since fired – wrote that Shapiro could be used in the future by the NCAA as “consultant” or “speaker to educate our membership.”
Let’s start with the idea that it would be crazy for Nevin Shaprio to work with the NCAA in the future. He would be just the latest in a series of former NCAA rulebreakers or convicted felons who have worked with the NCAA on issues like agent conduct, extra benefits, and point shaving. For the NCAA to get ahead in its enforcement efforts, it has to understand the territory. And it cannot do that unless it works with people who have gotten their hands dirty.
Second, no one should be surprised that an investigator wrote a letter on behalf of Shapiro. We already know that the enforcement staff paid money into Shaprio’s commissary account, supposedly to cover expenses. We also know that Shaprio’s motivation for talking at all was two-fold: revenge against Miami and recovering as much of the money he stole as possible in order to gain a lighter sentence. Writing a letter to the judge saying Shaprio helped out the NCAA is one of the least shocking and most mundane developments in the case.
But Dodd touches on the larger issue:
All NCAA infractions cases are supposed to be fair and impartial. How does Miami get a fair shake when an NCAA enforcement official is trying to reduce Shapiro’s sentence?
And:
The NCAA is going ahead with a case where its lead investigator had a stated bias against the school being investigated.
No one disputes that NCAA infractions cases, or any adjudication of any kind for that matter, should be impartial. The question is who should be impartial.
The previously reported misconduct and the NCAA’s external review revealed that the standards for and limits on the NCAA’s investigative power are very murky. Whether investigators are allowed to gain subpoena power through a legal process unrelated to the NCAA should be in the NCAA bylaws or at the very least a clearly defined policies and procedures manual. It should not be based on the “understanding” of the membership or national office.
Likewise, the roles of everyone in an infractions case should be clearly defined, in writing. The letter to the judge is not a clear breach of some ethical code. But it does raise the question of what Ameen Najjar or any other NCAA staff member’s role is in an investigation. If Najjar is a prosecutor, paid to get convictions, then his job is to build the strongest case possible for the NCAA against Miami, within set limits (which as stated above is a whole other issue).
But if Najjar’s role is more as an “officer of the court,” then he would have an obligation to be more critical Shaprio’s evidence and not take actions which reduce the credibility of that evidence. His job then would not be build a strong case but to build the most complete and accurate picture of what happened.
In theory, it is the job of the Committee on Infractions to oversee this process. No matter what model of adjudication is used in an infractions case, civil vs. adversarial, the COI sits as the finder of fact and has to weigh the credibility of the evidence, including taking into account how the evidence was obtained. But as the evidence released in the Todd McNair case reveals, we cannot be certain that will actually occur.
When it comes to impartiality, we know that Miami is not expected to be impartial. They are expected to raise a defense (within set limits, limits that are more well defined). We know the Committee on Infractions is expected to be impartial (ensuring that they are is the challenge). Even more important that asking whether the NCAA should be writing letters or providing money to convicts or participating in depositions is asking what is the role of the enforcement staff: dispassionate seekers of truth or the advocates tasked with telling NCAA’s version of the story.
If everyone knew where everyone else stood and what their roles were, a letter to a judge is no big deal. The NCAA would have the information, but must explain why it is still credible in light of the methods used to obtain it. Miami would a place to make an argument in their defense. And the Committee on Infractions would know that it is their job to sort out the mess. The problem is not that the letter was written. The problem is that we have no idea whose job it is to decide what it means.