You may recall some spirited discussions we had over the summer about what I saw as Mark Emmert’s procedural overreach in the Penn State case. Admittedly, I was in the minority, as most of you felt that what happened with enabling Sandusky’s monstrous behavior there clearly made for an ends justify the means situation for the NCAA. And no one seemed particularly concerned about the long-term consequences of Emmert’s actions.
So I’m wondering how those of you who were untroubled before feel about this turn of events.
CBSSports.com has confirmed the existence of a letter from the NCAA that it will consider former Miami players guilty of violations in the Nevin Shapiro case if they do not cooperate with the association’s investigation.
The Miami Herald first reported the letter – apparently sent to the players’ attorneys — that sets a Friday deadline for the players to contact the NCAA or the association “will consider the non-response as your client’s admission of involvement in NCAA violations.”
While the NCAA cannot penalize the former players, the implication is that non-cooperation could lead to harsh — or harsher — NCAA penalties. It is not known if the tactic has been used previously by the association. The NCAA has no jurisdiction over players who have exhausted eligibility or coaches no longer employed by NCAA member institutions.
Isn’t that peachy? As somebody Bruce Feldman spoke to put it,
“I’ve never heard of anything like this before,” said the source. “This seems like a total bullying tactic and sounds like a desperate move. They’re basically saying they’re taking the word of a billion-dollar ponzi schemer over some guys who may have taken a few steak dinners? It looks like the NCAA has spent a ton of money and time investigating this and they’re trying to cover their investment.”
They’re just making shit up as they go along and hoping nobody calls their bluff. Helluva way to occupy the high moral ground. But it’s for a good cause, right?
Get The Picture 
And, other than possible reputation lawsuits by the players presumed culpable (good luck with that Miami guys) there’s not much anybody can do. The NCAA is not held to legal presumptions in it’s investigation process.
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The reason these programs violate the rules is the confidence that they will get away with it by lying or not cooperating at all. The more the NCAA can convince people that cutting corners has consequences, the sooner we can have a clean recruiting process. I’m not an ends justify the means person but I have a hard time understanding what value we are protecting if this power is withheld.
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Exactly. The NCAA is not EXCLUDING these former players from the investigation, it is actually warning them that if they keep ignoring the NCAA investigators, their side of the story won’t be in the report.
Just because they say they will assume guilt doesn’t mean it’s the wrong strategy. If I were running a member-based organization without subpoena power, I would have the same policy. Frankly, I’m surprised this isn’t a policy instituted long ago to give the NCAA some teeth.
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I only wish they would figure out a way to get some leverage on the BCS so the bastards will have some second thoughts about their money grubbing ways.
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Nah man, have been concerned as well. This latest is the equivalent of the Salem Witch trials – if you sink and drown – you were innocent; if you swim you are guilty. Ergo – ‘Sink or Swim’ / ‘Succumb or Succeed’. Problem is, no due process – terrible precedent again.
The NCAA should just now be making its decisions in the Penn State matter – the judicial process has run on Sandusky and there are legal findings from a valid judicial proceeding supporting those findings.
Just because the NCAA investigation can’t get the factual proof does not give them the right to punish based on Post Hoc Ergo Propter Hoc self serving rhetoric.
http://www.nizkor.org/features/fallacies/post-hoc.html
Dr. O’Bryant, my Logic Professor over at Peabody hall, has to be laughing somewhere at the absurdity of it all.
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If A * B then C < D thus A C.
Man…I never got that. Though the class would be discussing theories and case studies, not bizarro math-like calculations. And got a B anyways. Good times.
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All painters are drunks but not all drunks are painters.
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That’s HOUSE-painters, not painters, Mister Piggy. Painters are all crazy. There’s a difference.
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Good one, Vince. I always liked the funny pictures you painted of yourself where you leave out most of your ear. Hilarious!
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By all means I stand corrected Vince.
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I think this has some roots in an investigation in a certain southeastern state concerning a certain pastor’s child that won a certain trophy and let his team to a certain crystal football.
Everyone in America knew that Auburn team was dirty and the NCAA couldn’t find ANYTHING?
Changed the world, imo.
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The powers that be have never liked that whole presumption of innocence thing.The government and their attorneys don’t like it and large bureaucracies hate it even more( try dealing with any local school board). The Constitution and the rule of law should NEVER be sacrificed on the altar of political expediency or the will of the majority.
My guess is that Feldman is 100% correct. Some retied law enforcement officer has got the greatest gig he has ever or will ever have and now he has realized he’s got nuffin. If all his expense account trips produce nothing and all the money he has dolled out to his Private Investigator buddies who take him to all the good strip joints in Miami and the clubs where the purported violations took place turn up nothing he is going to lose a very easy job. I hate the U as much as anybody but if all you’ve got is the word of this Federal convict you’ve got nuffin. A little trivia ,one of the only ways to get a downward modification of your sentence in Federal court is to get someone else in trouble by cooperating with the authorizes There is a marriage made in heaven a con, the Feds and a group with the best complementary ticket vault in the land, the NCAA. Thanks Senator you almost ruined my Thanksgiving,starting off the day pissed.
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Senator, I agree with you on the lack of due process for PSU. I agree with the NCAA here. If you’re really going to investigate and try to stop the non-cooperators (Auburn), you have to have a way to compel cooperation. Remember, unlike the government, the NCAA does not have subpoena power. Further, even though I’ve worked in criminal defense, I’ve found that most truly innocent people want to tell their story to clear their name and have fairly believable stories.
The only thing that upsets me about this story is it hasn’t apparently been used on Auburn, Alabama, or Tennessee.
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Yet, you mean. Just wait for the Auburn investigation to play out.
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It’s not the university that’s not cooperating – if the university doesn’t cooperate, the NCAA could kick them out totally (remember, Auburn “cooperated” and voluntarily suspended Cam for about 12 hours before the SEC championship game). These are threats against former players who have no eligibility left, so the NCAA’s only leverage is a naked threat to sully their names. I mean, the NCAA has already taken 3 or 4 years of these players lives, sold jerseys with the players’ names (and not shared the money), let the players engage in physical activity that might have led to life changing injuries, so why shouldn’t it be able to ruin their reputations too….
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What’s the big deal? We did away with that whole we have the “burden of proof” thing long ago. Switching to the “you’re guilty until you prove yourself innocent” system is waaaay easier and you can basically make any findings that you want. I recommend torture, too. A few shocks to the genitals or holding the accused under water and they’ll say anything you want them to say. Just get some ex-CIA types from Iraq and Afghanistan on the payroll–they’ll know what to do. It’s good to see that at least one American institution is headed in the right direction.
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it’s after the election and we have more flexibility,
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It isn’t preachy, this is common sense.
When you have a case with so much supporting evidence and the school itself is admitting to EVERYTHING and basically saying “please let us still play football in the future”, these letters are a last chance Vince Wilfork and all the other guys that came out and said “We aren’t going to say shit because you don’t have subpoena power”.
The NCAA isn’t overreaching, rather giving a really blunt warning to the former players: “You’re welcome to defend yourself but we already know you think you’re a badass and we can’t penalize you since you’re in the NFL so you probably won’t come testify. Well, if you don’t defend yourself, it’s going to be a very one-sided report because we have a lot of testimony against you and your university is not defending you. If you want to defend yourself against these accusations, come talk to us, otherwise STFU when our report comes out.”
Yeah, the NCAA is the bad guy in this situation. If the NCAA didn’t send these letters, those ignorant former-Miami players would all be crying like Jonathan Vilma “oh poor me I never got a chance to have them hear my side of the story.” WTF are you on this Thanksgiving morning?…
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The NCAA is not bound to follow a due process investigation/hearing due to the Tarkanian case.
I think for the players the biggest implications could be records struck from the record books, subsequent lost titles/bowls/wins during their years, and possibly even a forced disassociation from the University. If they don’t care about The U (and as we’ve heard before, they have a big alumni practice at summer practices) or their reputation, they won’t talk. I think it’s a smart tactic on the NCAA’s part, but it definitely does smack of a witch hunt to say the least
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Hell, I’ll dig in. Penn St was different and I differed with you under those specific circumstances. If you are saying that , by the NCAA getting away with that, we have created a monster and this is the first chance for us to see the belly of the beast we created, you have made your point.
I need more input from you Barristers.
Can the school and the players take the Fifth and then challenge the NCAA in court as having no power to deny the constitutional rights of…..uh oh….you silver-fingered devil, you lead me back to my nose.
Alright, since the threat of their silence will be a threat against the school, I would think that Miami, along with member schools could kick their NCAA ass. I’ll loan them my seldom used brass cojones if they will.
Can they give unsworn depositions admitting to minor meals , etc, (leaving out the whores and some other non-NCAA issues)? Can they just apologize for going deep sea fishing, drinking like fish and accepting the largess that a crook laid before them? Can the Miami President just return the crook’s donations and everything would be ok?
What hath Dawg Fans wrought? Can’t say we weren’t warned, but the next time your cynical ass is wrong about something, I’m coming back with a vengeance. 🙂
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Cojones, I’m not sure how serious you are, but . . .
Looking from a lawyer point of view: the member schools consent to the NCAA investigative procedures, right or wrong, when they enter the NCAA by contract. I suppose at some point a school could say the NCAA isn’t giving it’s species of ‘due process’ if the NCAA fails to follow its own investigation procedures. But due process, as we know and love in criminal law, doesn’t apply. Penn State was probably happy to get out alive, so it didn’t complain. The ‘student/athletes’ (har har) who are presumed guilty aren’t entitled to due process because no punishment is aimed at them. The NCAA threat seems only aimed at their reputations. You think Warren Sapp cares?
I remember back in the early 80’s, when the SEC was stripping Florida of their first SEC title and the NCAA was hovering, and Marshall Criser was huffing about ‘due process’ for Florida. I still don’t know what he meant.
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Of course, one of the most important aspects related to “due process” is the separation between the judiciary and prosecutors. Here though, the NCAA is the executive, legislative and judiciary branches all rolled into one, with the additional caveat that the NCAA is prosecutor, judge, jury and executor as well…
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Is that not illegal in itself?
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Legality doesn’t enter into it. The NCAA member institutions agree to the NCAA’s rules when they join/affirm their membership in the NCAA. There could be some legalities if the NCAA doesn’t follow its rules, but that would be different legalities than we normally consider due process.
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Legalism. It’s everywhere.
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Dittio to jdrips comments.
Throwing away due process, no matter the institution, is scary.
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Ok, here is a comment from a Barrister – how do you feel about the presumed guilt ‘because the NCAA says so’ when applied to UGA OL Kolton Houston?
Same stuff my friends.
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Unfortunately, until their medical advisors and lab personnel share the known science about molecules persisting in the body below a level of useful physical enhancement to the athlete, Kolton will be an example to many in the future to never put them in their bodies to begin with.
There is no scientific reason that the NCAA can persist, only a regulatory reason. That regulatory reason has to first be challenged to be updated by scientific reasoning. Who is going to challenge the reg in order to insert a loophole for the future that would permit detection and still let the player on the field, but without drug concentration levels info that will take years of research?
I mourn for Kolton’s future most of all, but I can’t hang a tag on the NCAA when it is the fault of needed research that has not been performed. Olympic Committee, law inforcement, NCAA, etc governing bodies of sport should all be behind extensive performance enhancement research in athletics. Until that time comes, it’s just a matter to test for PE presence, not enhancement levels. And Kolton has to pay the price for governing bodies not exercising due diligence in research to promote truth in testing.
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Funny, I’ll bet the NFL will let him play.
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the NCAA has evidence that X happened. They are asking the people accused of X to provide evidence that X didn’t happen. In the absence of any such evidence, they will go with the evidence they have and assume X happened. What’s the problem? It happens in courts across the county every day in civil cases. If someone files a complaint alleging X, defendants have an opportunity to defend themselves, but if they don’t the court assumes X happened and enter judgment for plaintiff. Yes, in criminal cases the government must prove its case regardless, but these are not criminal cases. No one is going to jail here. No one is having their life, liberty or property taken by the government (a requirement for due process to be implicated). Hell, nothing at all will happen to the “guilty.” I don’t know what the NCAA’s internal burden of proof is, but if Shapiro’s testimony satisfies that burden, this is legitimate.
Now, if the NCAA is tossing out some existing procedure regarding burden of proof or evidentiary standards to get the result they want, then yes, this stinks, and I would agree we have started down the slippery slope. But I don’t know enough about the NCAA’s by-laws to comment about that. standing alone, however, I see no problem with what they are doing here.
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Now apply that same logic to he Cam Newton case. See any inconsistencies?
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Such as? Not saying there weren’t any, I just ate too much food to think about it, and I don’t remember much about the Newton case except that Auburn and Cam definitely cheated and got away with it.
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People at MSU were sounding the alarm long before the rumors turned into newspaper stories that essentially forced the NCAA to “investigate”. I did hear not hear rumblings of talk or you are presumed guilty. Plus, the NCAA and SEC abided with a cover-up. Why not be willing to do that with the U? Hell, both programs have been covertly cheating foe years. If I don’t make sense it is because I am full of alcohol.
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That makes perfect sense to me and I don’t drink anymore.
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They’re justifying their reason for being.
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I saw this coming. The NCAA makes the Delaney’s and Slive’s of the CFB world appear to be geniuses. The monarchy they claim over collegiate athletics is a farce and hypocritical. The actions against PSU had no foundation as that is a criminal case and only indirectly related to the football team. When Emmert announced what I felt was essentially a suspension of habeascorpus corpus you had to know this was coming. The genie was out of the bottle and who could trust the leadership out of Indy? Let’s face it, the game we know will be destroyed by a bunch of asshats.
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IMO, Im copping out. I hate Miami and Im glad if they go down.
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Well, there’s the latest opinions on the NCAAs investigation of USC, too. That predates Penn State, so overreach isn’t a new thing for the good folks in Indianapolis.
At the same time, one is reminded of USADAs case against Lance Armstrong and his arguments to protect himself (and his lies).
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Ain’t no use in lying. When he lies he speaks his native language, for he is a liar and the father of lies. Jesus in John 8:44
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Senator, they are indeed “making shit up as they go” because it is obvious that previous method resulted in a bunch of “shit” going on with little recourse. Programs that were dumb enough to actually cooperate with the process got hammered. While programs that double down on the rogue and said “fuck off, you got nothing on us and you have no subpoena power” were allowed to skate — exhibit A being Cam & AU. What kind of negative precedent was set by that wonderful display of due process? The NCAA is not a government entity and they are not governed by the Constitution, if they were they could just throw away their by-laws. It is a governing body made up of the member institutions, which can leave anytime they wish or create a new organizing method (i.e. CFA). If that self-governance breaks down due to lack of cooperation and basic insubordination then the whole thing falls apart.
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I say let’s take the Bastards down! We can you know.
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