I’m as big a NCAA cynic as anyone, so there’s a lot to the report the organization commissioned about the Miami investigation debacle that isn’t much of a surprise. The biggest picture stuff is benign. The organization gets a pass on law-breaking (pg. 4):
First, we find that the facts do not establish that any NCAA employee knowingly violated a specific bylaw or law. While the Enforcement Staff may have disregarded the advice of the Legal Staff in proceeding with the proposal, that conduct does not appear to have violated any written NCAA rule. We have also found no apparent violation of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, or Bankruptcy Court orders by NCAA staff.
And to nobody’s surprise, the grand poobah gets a pass on everything (pg. 47).
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. To the extent that Mr. Emmert dealt with the issue, it was in the context of deciding how to respond to the issue once the NCAA became aware of it. The appropriateness of his conduct in that context is evident from NCAA’s response, and specifically from his decisions to fully disclose the issue and to take all possible steps to ensure that the parties at risk in the investigation suffer no prejudice as a result of the NCAA’s mistakes.
I could be mistaken, but I think that last sentence describing Emmert’s horse already out of the barn actions is meant as praise.
Dig down a layer, though, and there’s some rather high-level activity that’s pretty damning. The most significant is that the NCAA’s legal department was asked for its opinion on engaging Perez, advised against it and was promptly ignored by the enforcement staff. Ask yourself how many other major institutions operate like that in this day and age. The other is that the payment to Perez was approved by Jim Isch, the NCAA’s number two guy. That approval left the report’s writers needing to do some tricky stepping to absolve Isch of any serious blame (pg. 44):
While the green-light request was stated in broad terms, the balance of her email focused exclusively on budgetary matters and thereby made it clear that she was seeking his approval regarding the outlay of funds and not regarding the propriety of the proposal. His response – “Absolutely, please proceed, if past practice is any indication, there will be enough money.” – clearly suggests that he was addressing only the fiscal issue and not any legal/prudential concerns.
In other words, approval to spend the money wasn’t the same thing as approving what to spend the money on. That is some serious hair-splitting, friends.
The curious omission from the report is how Isch, a person who reported to Emmert on a daily basis, somehow managed to keep news of this development in a very high-profile enforcement matter from reaching his boss for over a year. That let Emmert play the Sargeant Schultz defense that used to serve so many coaches well when the NCAA came calling. Nice.
But there is some small stuff that blows my mind. Like footnote 35.
To facilitate communications between the NCAA and Mr. Shapiro, Mr. Johanningmeier purchased a disposable mobile phone and paid for Mr. Shapiro’s use of the prison telephone system. Mr. Johanningmeier, in turn, expensed those costs to the NCAA. (Comley; Lach;Johanningmeier; Najjar; Shapiro). We learned that the NCAA had expended approximately $8,200 to fund communications with Mr. Shapiro, including transfers of approximately $4,500 to his prison commissary account from which he pays for communications expenses.
And then there’s the puzzlement over why the NCAA was so hell-bent on getting in bed with Shapiro and his attorney in the first place. Let John Infante explain.
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.
The irony, of course, is that the way this has turned out has given Todd McNair’s lawyers one helluva weapon. And, indeed, this has left the NCAA stuck between the proverbial rock and hard place with regard to enforcement of sanctions against Miami. The NCAA is dropping about 20% of the material it gathered, but intends to go ahead. If it goes easy on UM – Donna Shalala has already requested that no more sanctions be imposed, and can you blame her? – the screaming from Penn State to Southern Cal will be intense. But if it proceeds to throw the book at the program, is it realistic to expect the school to sit back and take it? (That allowing Shapiro to “get revenge” stuff should play well at trial, don’t you think?)
This all gets back to something I touched on when we discussed the Penn State sanctions. There is a limit on the ends justifying the means. Ignoring established rules and procedures, or making up entirely new ones when you think they’re called for, eventually corrodes institutional credibility to the point where no decision will be accepted on its face. And at that point, who needs the NCAA?
Which brings us to Mark Emmert’s future as head of the organization. Infante thinks he’ll survive.
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…
… 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…
The problem I have with the AD analogy is that an athletic director doesn’t have rules enforcement against other programs in his or her job description. Emmert does. Now it may very well be that those on the inside will stand by their man, but don’t you have to wonder how many more hits the NCAA can take to its dwindling credibility – how, for example, does it enforce its new rule holding head coaches accountable for the actions of their assistants with a straight face when Emmert gets a pass for the same type of management? – before the entire house of cards comes tumbling down? I don’t know, but it’s hard to see how you can keep serving the same cocktail of ineptness and arrogance without paying a price eventually. If nothing else, I expect this will be far from the last time most of these folks have to deal with deposition questions.