Daily Compliance Item- 1/25/13- Current Event

NCAA to launch external review of enforcement program



With its case against the University of Miami compromised by “a very severe issue of improper conduct,” the NCAA has retained a New York-based law firm to investigate its investigators – and beyond that, to explore whether there are other “trust and credibility” issues, according to president Mark Emmert, in the organization’s regulatory and enforcement structure.

Emmert said members of the organization’s enforcement staff had hired an attorney representing Nevin Shapiro, the booster at the center of the probe into Miami, in order to improperly obtain information through depositions in a bankruptcy proceeding. He called their actions “grossly inappropriate.”

“This is obviously a shocking affair,” Emmert said Wednesday in a teleconference with reporters, an event unusual in itself because the NCAA normally does not comment on investigations.

The investigation by Kenneth L. Wainstein of the firm of Cadwalader, Wickersham & Taft could have implications far beyond the Miami case. But the immediate issue is the probe into allegations of multiple rules violations by Shapiro involving Miami athletes and several coaches.

Until Emmert’s revelation, it appeared the investigation into the Miami athletic department – which began almost two years ago – was winding toward a conclusion. Emmert said he hoped Wainstein’s investigation would be completed within two weeks, delaying the NCAA’s case against Miami by “weeks, not months.”

“We will not be issuing notices of allegation until after this investigation is completed,” Emmert added. “We want to make sure that any evidence that is brought forward is properly collected.”

Emmert said it was “premature” to suggest the improper conduct would result in the equivalent of a mistrial. He said he expects the investigation to be completed within two weeks and that only a small portion of the case evidence was compromised by improper collection. Improperly compiled evidence “will be thrown out,” he said.

“The intention is to get through this process, look at what the appropriately acquired evidence indicates and (to determine) allegations from that,” Emmert said.

Miami president Donna Shalala said in a statement that the school had cooperated with the NCAA since the investigation started. Along with providing what Shalala called “thousands of documents,” the school preemptively self-imposed bowl bans in the 2011 and 2012 seasons.

“I am frustrated, disappointed and concerned by President Emmert’s announcement today that the integrity of the investigation may have been compromised by the NCAA staff,” her statement read. “As we have done since the beginning, we will continue to work with the NCAA and now with their outside investigator hoping for a swift resolution of the investigation and our case.”

The delay – and whatever damage was done to the strength of the NCAA’s case by improperly acquired evidence – impacts several former Miami coaches, as well. CBSSports.com reported former Hurricanes head basketball coach Frank Haith, now the head coach at Missouri, was expected to be charged with “unethical conduct and failure to promote an atmosphere of compliance,” and that three of Haith’s former assistants would likewise be charged with unethical conduct. The web site separately reported that former football assistant Clint Hurtt, now the associate head coach at Louisville, and Aubrey Hill, who resigned at Florida last August, also would be charged with unethical conduct.

Emmert said the misconduct was discovered when an invoice was submitted to the NCAA last fall by an attorney representing Shapiro, who is serving a 20-year prison sentence for running a $930 million Ponzi scheme. (Shapiro alleged extensive rule violations in a Yahoo Sports report in August 2011.) Emmert said the NCAA’s general counsel had not approved hiring the attorney. He didn’t name the attorney, but Shapiro has been represented by Maria Elena Perez, a graduate of Miami.

Emmert, who expressed anger and frustration several times during the teleconference, said at least one member of the enforcement staff has been dismissed, though he would not discuss specifics. “There are people no longer at the NCAA,” he said.

Emmert said when Wainstein has completed the investigation into the enforcement staff’s handling of the Miami case, the outside counsel would begin a broader review of the NCAA’s enforcement and regulatory structure, which has come under frequent and increasing criticism, “to see if there are similar problems of any kind.”

In recent months, enforcement agent Abigail Grantstein was fired, according to the Los Angeles Times, after her boyfriend was overheard providing information related to the eligibility case of freshman UCLA basketball player Shabazz Muhammad.

Meanwhile, former USC assistant football coach Todd McNair’s lawsuit against the NCAA threatens to force the organization to release documents related to its investigation of former Trojans star Reggie Bush. And Pennsylvania Gov. Thomas Corbett filed a lawsuit earlier this month against the NCAA related to its punishment last summer of Penn State for the Jerry Sandusky scandal.

Last week during an NCAA Convention session on enforcement entitled “Tougher Rules, Smarter Enforcement,” the organization cited a “public and membership distrust of the NCAA’s ability to police itself” as one of the reasons for the existence of its temporary Enforcement Working Group.

The organization has recently revamped its rules and penalties structure. Among the changes to take effect Aug. 1 is an effort at increased accountability of head coaches for violations that occur on their watch. Emmert said Wednesday’s announcement was an indication the NCAA plans to hold itself accountable, as well.

Chuck Smrt, a former NCAA investigator who now assists universities with compliance and investigations as president of The Compliance Group, said past complaints of enforcement misconduct by enforcement staff had been handled in-house.

“What is different it seems here, is that Dr. Emmert believes the severity of whatever alleged impropriety occurred reached that level where he decided to go outside with the review,” Smrt said.

Smrt said announcing the improper conduct, as well as the external review, “would help the integrity of the enforcement process.”

David Ridpath, an assistant professor of sports administration at Ohio University and a frequent critic of the NCAA’s enforcement arm, said, “The revelation is the most shocking thing of all. That the NCAA brought it up and that they’re hiring an outside law firm to look at the case is the most surprising thing about this.”

Ridpath added: “That makes me think this (misconduct) is pretty big.”

Said Emmert: “My hope and intention is that the membership will see that we’re going to hold ourselves to the same standards that we expect to hold others to. Otherwise we’re in the wrong business.”

The following is Shalala’s full statement:

“Since the University first alerted the NCAA to the possibility of violations more than two years ago, we have been cooperative and compliant with the NCAA and, I believe, a model for how institutions should partner with NCAA staff during investigations. In addition to encouraging current and former staff members and student-athletes to cooperate with investigators, we have provided thousands of documents to the enforcement staff.

I am frustrated, disappointed and concerned by President Emmert’s announcement today that the integrity of the investigation may have been compromised by the NCAA staff.

As we have done since the beginning, we will continue to work with the NCAA and now with their outside investigator hoping for a swift resolution of the investigation and our case.

I want to thank our community for their continued support and patience.

Stand with the U.”

This article was selected for educational purposes only.

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