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Takeaways From the NCAA External Review

The NCAA released a public report on the misconduct during the Miami investigation. It is a blow-by-blow account of how an NCAA investigator worked with Maria Elena Perez, Miami booster Nevin Shapiro’s attorney, to gain subpoena power and depose witness as part of Shaprio’s bankrupty case. Four of the principles in the case are no longer working at the NCAA, including the top two people in the enforcement staff. But while the report largely acquits the NCAA of deeper cultural issues, there are a number of important things to take away from the report beyond just the play-by-play of what happened.

Understanding vs. Written Rules

One of the key findings in the report is the assertion that the NCAA violated no written bylaw or law by hiring Perez. What the enforcement staff ran afoul of were “understandings”, both of NCAA staff:

While we did not identify a written rule requiring Enforcement Staff members to abide by duly provided legal advice, it was universally understood at the NCAA that Enforcement Staff must adhere to such advice. Accordingly, it was simply not reasonable for Mr. Najjar to proceed with Ms. Perez’s proposal in light of the clear advice to the contrary from the Legal Staff.

And the membership:

We find that Mr. Najjar adopted and Ms. Lach and Mr. Hosty went along with the Perez proposal without sufficiently considering whether it was consistent with the NCAA membership’s understanding about the limits of the Enforcement Staff’s investigative powers.

The fact that the propriety of these actions had to be pieced together through numerous internal NCAA documents and a guess about what the NCAA membership thought is troubling. The lack of subpoena power, for better or for worse, is a defining feature of the enforcement program. The limits of the enforcement staff’s investigative power should not be based on an “understanding”. There should be clear, written down, decided by the membership (within legal limits) and subject to regular review.

Shaprio as a Witness

Mr. Najjar, the investigator who was pitched the deposition scheme by Perez and ran with it, offered this justification when he pitched it to enforcement VP Julie Roe Lach and Managing Director Tom Hosty:

Other than conducting these depositions, I do not believe we will be able to secure interviews with the witnesses or as in the case of Allen, will simply lie to us during an interview.

Since the beginning of the NCAA’s case, everyone has wondered what is taking so long because of the depth of Yahoo!’s original report. It was not just Shapiro’s allegations, but also corroborating documents for most of those allegations. Shapiro even turned over four boxes of documents during one visit. Most of the case should have been taken care of with that evidence.

But when this was approved, it was reported that Roe Lach’s goal was to “crack this case wide open”. In the minds of the public, the case was already wide open. So what then was the NCAA struggling with? Perhaps the external review offers an answer:

[C]onducting these depositions would help Mr. Shapiro get revenge on U. Miami and its student- athletes and coaches who had turned their back on him. (Najjar).

Unless the NCAA had gone beyond the original Yahoo! report and was looking at even more violations (which seems unlikely), the most likely explanation is that the NCAA did not want to rely on Shapiro as a star witness. He might have been the source of the extra benefits and might have had records for many of the payments or gifts he provided. But perhaps the enforcement staff learned something from the USC case and the reliance on Lloyd Lake. Shapiro’s testimony corroborated by other witnesses plus the documents is an unmeasurably stronger case.

Other Cases

While the report says there is no evidence to suggest other cases need to be reviewed and possibly reopened, this line deserves more explanation:

NCAA investigators had leveraged other legal processes to get information in past cases. The NCAA has cooperative relationships with police agencies and other investigative entities around the country, and has used those relationships to coordinate fact-finding in past cases.

That does not jibe with the NCAA’s public stance when a case involves both NCAA violations and law enforcement or legal proceedings. The NCAA’s longstanding policy has been to sit back and wait for the legal process to play out, then come in and possibly get information from law enforcement or legal records to support an NCAA investigation.

If the NCAA was receiving nonpublic information or was working with law enforcement or players in a legal proceeding to get information while the proceeding was taking place, that is a completely different story. This was a throwaway comment in a list of mitigating circumstances that demands a deeper dive, especially given that the standard here is what the NCAA staff, membership, and public “understand” are the limits of NCAA investigative power.

Where The Buck Stops

In light of the NCAA’s recent move to hold head coaches more accountable for the violations of their assistants, NCAA President Mark Emmert has come under fire, including demands for his resignation, simply because this occurred on his watch. The portion of the external review report that addresses his culpability does not do him any favors in this regard:

Although Mark Emmert knew about the general background of the U. Miami case, he was not apprised of the arrangement with Ms. Perez until the fall of 2012 after Ms. Stevenson realized that her advice the previous year had not been followed. His conduct is therefore not subject to judgment in relation to the implementation of the Perez proposal.

The disconnect is that Emmert is not as analgous to a head coach as he is to an athletic director. Rather than overseeing and being responsible for one team or function, Emmert is responsible for the entire organization and its many disparate parts. One part of that organization (Legal) seems to have done its job well, with the correct interpretation and appropriate follow-up when that was challenged. One part of that organization (Jim Isch) could have done better by requesting confirmation that Legal approved the plan before any financial authorization was given. And one part (enforcement) clearly messed up.

In an NCAA infractions case against a school, there are elements of a failure to monitor charge here. A week after alerting the public to their own problems, the NCAA punished Southern Mississippi for failure to monitor its men’s tennis program, in part because there was not a good system for reviewing travel expenditures. That the legal department did not approve the early invoices to Perez is as much a problem as it is an excuse for what happened.

Now Southern Mississippi is not the NCAA and enforcement is not a tennis team. This is a high profile institution and enforcement is the football or men’s basketball of the NCAA in terms of public image and awareness. But the better way to judge Emmert’s responsibility is through this hypothetical situation:

  • An assistant football coach pitches an idea about a new recruiting trick to the head coach. The head coach likes the idea, and goes to get approval.
  • The business office says yes, but the compliance office says no, and reinforces that no when the assistant pushes back.
  • The assistant changes the idea a bit, and without seeking approval, enacts the idea, telling the head coach that compliance OK’d it.
  • When the business office sees excessive charges, it alerts compliance who determines a violation occurred.

Do you fire the athletic director in this case?

Many athletic directors survive this type of case. In fact a lot of head coaches survive this type of case, or at least did until the NCAA changed the responsibilities of the head coach. The key for the athletic director would be whether you see this as an isolated incident, simply one soft spot a coach found and exploited, or part of a larger systemic problem.

To the public, this is not an isolated incident because of the judgments about what the NCAA has done during Emmert’s tenure. Both the Penn State and Miami cases are seen as overreaches by the NCAA. Not to mention both follow on the heels of the USC case and while the NCAA has been attacked on just about every front by a bevy of lawsuits.

But from the standpoint of the membership, or more importantly the representatives of the membership on the Executive Committee and Board of Directors, this looks much different. Both those bodies, which President Emmert acknowledged he must answer to, approved the Penn State consent decree and sanctions. They may agree with the USC sanctions and trust Emmert and legal counsel to see them through the lawsuits. On the other hand, the membership may see this as part of the “nationalization” of the NCAA, which started with Emmert’s push for stipends and deregulation. That just makes judging his responsibility even harder since the public generally supports those plans.

It would be hard to expect much more out of the NCAA so far, especially given many people’s low expectations of the NCAA. It seems entirely against some of the ingrained traditions of the NCAA to publish this detailed of a look at its own investigative structure and policies. But like most “independent investigations” paid for by the investigatee, it is generally going to confirm whatever suspicion someone had in the first place.

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