Daily Compliance Item- 2/22/13- Current Event

Miami’s NCAA defense has sudden change of tone



Miami President Donna Shalala is politely declining interview requests for the time being, which perhaps isn’t surprising. She’s already said plenty this week.

But the university’s abrupt reversal from quiet cooperation to public defiance is startling.

“We have been wronged in this investigation,” Shalala said Monday in a statement after the NCAA made public the report of an external review that found significant misconduct by its enforcement staff investigating a booster’s allegations of rule violations. Tuesday, after the NCAA issued a Notice of Allegations to Miami that included a charge of “lack of institutional control”, the school’s response was at least as strident, saying, “many of the allegations … remain unsubstantiated” and attacking the process.

“Miami went from being very cooperative and helping the NCAA (in the investigation) and looking like they were going to take their lumps and move on from it to fighting and doing so very publicly,” said John Infante, a former university compliance officer and proprietor of The Bylaw Blog, which covers NCAA compliance issues.

The language in both statements was unusual for a university administrator, especially before an NCAA investigation is completed, and appeared to be a sharp reversal of strategy.

“It’s unprecedented,” said David Ridpath, an assistant professor of sports administration at Ohio University and a frequent critic of the NCAA’s enforcement arm. “In many ways she’s thrown down the gantlet and challenged (the NCAA): ‘Bring it on.’ ”

The outcome will likely boil down simply to how strong the NCAA’s case actually is. For more than two years, the NCAA has been investigating allegations made by booster Nevin Shapiro, who is serving a 20-year sentence for running a $930 million Ponzi scheme, and according to Shalala’s statement, is “a man who made a fortune by lying … a convicted con man.”

The NCAA fired its vice president for enforcement after an external review by the law firm Cadwalader, Wickersham & Taft found members of the enforcement staff secured the services of an attorney to secure information from depositions in Shapiro’s bankruptcy proceedings. Thirteen interviews and portions of 12 more were excised from the investigative record. Yet attorney Ken Wainstein, who led the external review, estimated only 20 percent of the evidence had been “tainted” and removed, and the NCAA apparently felt strong enough about the remaining 80 percent to charge “lack of institutional control.”

Miami’s statement in response noted Shapiro’s dubious credibility and said the NCAA enforcement staff told the school that if Shapiro “said something more than once, it considered the allegation ‘corroborated’ — an argument which is both ludicrous and counter to legal practice.”

But a person familiar with the NCAA enforcement staff’s activities told USA TODAY Sports that Shapiro’s allegations included rich details – dates and locations – that were corroborated by multiple documents and witnesses. The person spoke on condition of anonymity because of the sensitivity of the matter.

That anyone’s talking at all points to the unique circumstances of the case. And when it comes to Shalala and Miami, it isn’t just the public venting. It’s the timing.

In June 2010, then-USC athletic director Mike Garrett ripped into the NCAA at an offseason booster function. Earlier that day, the Committee on Infractions had announced harsh penalties for violations involving star running back Reggie Bush. According to the Los Angeles Times, Garrett told fans: “As I read the decision by the NCAA … I read between the lines and there was nothing but a lot of envy. They wish they were all Trojans.”

The defiant comments distilled what some felt had been the general attitude of the school toward the investigation, which had run for many months. But Garrett’s fighting words came after the NCAA had ruled. Literally, it was all over but the shouting – which is an important distinction.

Shalala’s statements – especially the one Tuesday night, in acknowledgment and response to the Notice of Allegations – come during the process. The school faces a date this summer with the Committee on Infractions, which will ultimately rule on the allegations and determine whether to add penalties beyond those already imposed by the school (which include two consecutive bowl bans and reduced scholarships).

The stance played well with many, perhaps because of the natural antipathy held by many college football fans for the NCAA and especially its enforcement arm. And it appears to have been a calculated move, an attempt to leverage the university’s suddenly strong position in relation to the misconduct by NCAA investigators. But it could backfire, both in the court of public opinion and the court of the Committee on Infractions.

“It’s a bit of a tight-wire act,” said Ridpath of Shalala’s and Miami’s new, combative stance. “But in a lot of ways, she definitely jumped off of (the wire) and she’s taken the gloves off. It’s a risk – but I think it’s worth taking.”

Both statements seemed to be aimed in part at persuading the Committee on Infractions that the school has already been heavily penalized, both with its self-imposed sanctions and from two years of negative publicity. “We deeply regret any violations,” Tuesday’s statement said, “but we have suffered enough.”

There’s also the potential of a lawsuit, as well as an implicit threat that Shalala, who served as Secretary of Health and Human Services during the Clinton presidency, is well-connected in Washington, D.C. But Jo Potuto, a former chair of the Committee on Infractions, said she wasn’t surprised to hear Shalala’s comments. Potuto said the publicity surrounding the NCAA’s investigation – and specifically, the misconduct – is a significant, exacerbating factor.

“It makes this case extraordinary from the perspective of a president and a campus,” Potuto said. “It didn’t seem to me the substance of what Donna Shalala said would be different from what one would expect to hear in a committee hearing.”

Potuto said the Committee on Infractions would rule on the merits of the case presented to them. But Infante and others suggested the Committee might be concerned with the misconduct by the NCAA investigators, but might also be unhappy with Shalala’s public comments.

“I wouldn’t bet the rent on what the Committee on Infractions is ever gonna do,” Infante said. “They could say, ‘No, there are still problems, 80 percent is still significant, we’re gonna impose other penalties.’ Or almost equally likely the Committee could take out its frustration on the enforcement staff and let Miami off.

“The risk is there. I think it’s a coin toss.”

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