“Egregious”. “Meritless”. “Reckless”. “Offensive.”
Those are just a few of the words tossed back and forth between the NCAA’s enforcement staff and the University of Miami in their opposing briefs regarding Miami’s motion to dismiss its infractions case. If it was not clear that lines have been drawn and that neither side intends to back now, all those ships have sailed. Miami is still clearly unhappy with the investigation. The enforcement staff seems unwilling to bow out gracefully from the case. And the odds that even the Infractions Appeals Committee will have the last word on this case are dimming.
Not much has changed, but Miami has scored two key victories. First, the enforcement staff has conceded that the Committee on Infractions may have the ability to dismiss the case. Second and more importantly, public opinion still rests firmly on Miami’s side. That is not unexpected, but there is no indication yet that Miami has overplayed its hand. Some forceful language in an otherwise bland and technical NCAA response saw to that.
So Miami has maintained its strategic advantage, but who should win the current argument? For Miami to get what it wants it needs the Committee on Infractions to agree on two issues: whether it has the authority to dismiss the case, and whether what happened up until now merits dismissal. Unfortunately for Miami, it has too high a bar to clear at the moment.
COI’s Authority to Dismiss the Case
Miami’s argument to dismiss the case is based on an NCAA bylaw and a previous case, for which there is no record. But it is the rule Miami cites that is the bigger problem. The bylaw at issue is 19.1.3, specifically this subjection, which says the duties of the Committee on Infractions include:
(e) Carry out any other duties directly related to the administration of the Association’s enforcement program.
According to Miami, this grants the COI “broad discretion” to end the case in order to punish the enforcement staff for its misconduct, so faith in the administration of the enforcement program can be restored. There are two problems with Miami’s argument. First, broad discretion to do something necessarily includes broad discretion to not do something. And two, this is exactly the type of catch-all provision the NCAA was criticized for citing to justify the Penn State sanctions. Here is the bit of Bylaw 4.1.2 that the Executive Committee relied on in that case:
(e) Act on behalf of the Association by adopting and implementing policies to resolve core issues and other Association-wide matters.
Empowering the Committee on Infractions to make up a legal process does not restore confidence and faith in the enforcement process. At best, it shifts that uncertainty to the Committee on Infractions. At worst, it creates it with the group that is supposed to resolve such doubt without fixing it below.
Whether Dismissal Is Appropriate
To determine whether dismissal would be appropriate, it is important to understand Miami’s argument for immediate dismissal. Miami is not making a bunch of “throw spaghetti, see what sticks” arguments including how long the case took. Miami’s entire theory boils down to the delay. Here is the complete argument, summarized in three steps:
- The NCAA enforcement staff committed both misconduct and made unintentional mistakes.
- These issues delayed the case, resulting in irreparable harm to Miami.
- Because there are still unresolved issues with the case, those delays are not justified.
The first two parts are self-explanatory. The last is the key though. And not just because Miami argues that even the NCAA’s corrective actions in response to using Nevin Shaprio’s attorney are a reason for the case to be dismissed. That argument must be accepted in order to overcome the enforcement staff’s explanations or counter-arguments for the specific issues Miami has raised.
The enforcement staff does not categorically dispute everything in Miami’s motion. It admits issues with the interview of Student-Athlete 1 and will suppress any evidence from that interview along with dropping any allegations that cannot be supported without Student-Athlete 1’s interview. The enforcement staff also concedes that there may have been a violation of Bylaws 32.1.1 and 32.1.2 regarding whether confidential information was improperly included in the Cadwalder report.
But in the many cases where the enforcement staff disagrees with Miami, their response asks for the same thing: to discuss those issues at the hearing, reportedly to be held in June. Issues like the credibility of Shapiro, the merits of the charge of lack of institutional control, and the impact of the failure to interview former athletic director Paul Dee are all issues best left to the finder of fact at trial, which in this case means the Committee on Infractions during the hearing.
And as the enforcement staff points out, how long a case takes is not legislated in the NCAA. The NCAA is only obligated to provide a Notice of Inquiry before on campus investigation starts and to provide an update every six months. The only real time limit is the statue of limitations, which Miami is not arguing in their motion. To put it another way, a “speedy trial”, as defined by NCAA rules, is one where just the charges are delivered within four years of the alleged violations. And even then exceptions apply.
The Other Reason For All These Motions
It is not safe to assume the Miami’s only goal is to have the case dismissed. It is also not safe to assume that the enforcement staff’s only goal is to have the case survive. Given the tension between Miami and the NCAA, we must consider the possibility that anything out of the ordinary in this case is done in preparation for a potential lawsuit.
Miami may have filed this motion knowing it had no chance in order to preserve issues for appeal and then litigation. If we assume that Miami’s claim of irreparable harm resulting from delay caused by misconduct will be the basis of a lawsuit against the NCAA, filing a doomed motion to have the case dismissed immediately is almost a prerequisite. And while the enforcement staff may think the Committee on Infractions cannot dismiss the case, it would be risky to simply ignore Miami’s motion, rather than giving it enough respect that a court would say Miami’s request got a fair shake.
Now the challenge is for the Committee on Infractions to do the same thing while not delaying the case any further and adding fuel to Miami’s claim. Even if the Committee on Infractions rules that is does not have the authority to dismiss the case, it may feel compelled to address Miami’s arguments anyway. This gave us Marbury vs. Madison but is generally a disaster when a court does it, much less an administrative tribunal as part of an organization that might be sued over its processes.
How It Could Have Been Different
The biggest problem with Miami’s motion, and why the NCAA’s challenge in addressing it is so easy, is that Miami’s request shifts back and forth between asking for dismissal, acquittal, pardon, and plea bargain. When asking to have a case dismissed, the accused cannot admit to violations like Miami is prepared to do. And when begging for mercy, defendants need to seem at least a little contrite rather than still protesting their innocence.
In their response, Miami has a laundry list of allegations the school feels are uncorroborated and challenges the lack of institutional control charge. In exchange for dismissal of the case and no additional penalties, the school offers to admit to any corroborated and untainted allegations.
Without knowing the full contents of the Notice of Allegations the NCAA sent to Miami, it is impossible to know if the lack of basketball penalties is appropriate. It is one thing to let the football team go given the corrective action imposed. If Miami is prepared to admit to serious violations involving basketball but impose no penalty on that program, that is a tough sell to the Committee on Infractions. But the COI knows what it is in the notice and besides, there is a bigger problem.
Two penalties that have not been imposed are probation and the repeat-violator period. If Miami is serious about admitting to the violations and not getting off on a technicality, the school should submit to the period of monitoring and improvement that probation represents. And if the school is admitting that major violations occurred, the repeat violator period should run.
What the motion to dismiss should have been was a last ditch effort at summary disposition, essentially a plea bargain. Miami agrees to a period of probation, appropriate penalties on the basketball program assuming the school is prepared to admit to those violations, and to accept the repeat violator period. The NCAA can acknowledge their mistakes again, the Committee on Infractions could wag their finger at both parties, and the membership can get to the task of fixing enforcement.
Instead, Miami and the NCAA are still headed for a COI hearing, an appeal, and likely a lawsuit. The enforcement staff has good arguments that there are issues in the case that have to go to “trial”. But in opposing Miami’s motion, the enforcement staff has also created a new tactic for schools to use in major violation cases, even if they had no choice. And Miami still has not squandered any of its strategic advantage in the case.