The NCAA and the University of Miami: Through the Smoke

You know the smoke that spews forth when the Canes football players come on to the field? It seems as if the UM has borrowed some of that smoke during football offseason to try to draw attention away from the pesky question of institutional control.

As everyone in the world knows by now, the National Collegiate Athletic Association (“NCAA”) has served a Notice of Allegations on the University of Miami. According to media reports, it charges a lack of institutional control.

The UM has fought back, not by making the Notice of Allegations public and refuting its allegations, point by point. But by releasing a statement in the name of its President, Donna Shalala, attacking the NCAA and crying that the UM has “suffered enough."

Since it came out that several NCAA investigators had disregarded legal advice in conducting the investigation of the UM, the South Florida media have been awash with attacks on the NCAA.  Herald columns have been filled with vitriol, with very little attention, if any, on whether the U of M deserved the charge of lack of institutional control.  

             Greg Cote: “College sports’ governing body should drop its case against UM and instead direct the scrutiny and punishment upon itself”. 

             Dan LeBatard: “The consensus for decades has been that the NCAA is an absurd, unjust artifact that belches out unfairness.” And “So Miami, while fighting punishment, keeps getting punished … while awaiting yet more punishment.” (In fairness, LeBatard also added: Miami is not an innocent here, and the program’s history makes it a bad applicant for martyrdom as Ponzi weasel Nevin Shapiro works from jail to bring it down.”)  

It’s hard to defend or even maintain an open mind about the NCAA. For sheer hypocrisy, it’s hard to beat the NCAA. Take its Constitution, which states that its first two purposes are 

(a) To initiate, stimulate and improve intercollegiate athletics programs for student-athletes and to promote and develop educational leadership, physical fitness, athletics excellence and

(b) To uphold the principle of institutional control of, and responsibility for, all intercollegiate sports in conformity with the constitution and bylaws of this Association.

Then the Constitution states its “basic purpose” is “to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.”

Can grown men and women spout such malarkey with a straight face? Big Time College Sports treats “athletics participation as a recreational pursuit” and maintains “a clear line of demarcation between intercollegiate athletics and professional sports”? Maybe they don’t say these things with a straight face. Maybe they’re so inured to the anomalies that when they meet at NCAA conventions they recite these lines with broad smiles on their faces, presumably what some law professor was wearing when, on his he recited, in a monotone, the Internal Revenue Code. I don’t know. I’ve never been to an NCAA convention, and there's no picture on the poor prof's blog.

But put that all aside. The University of Miami is a member of the NCAA Division 1. It is supposed to abide by its rules -- and, as an institution of higher learning, with openness and intellectual honesty.

About that Notice of Allegations. Has anyone outside the U seen it? No. (In fact, I would bet good money that it has not been shown to members of the Board of Trustees outside a very small circle of Trustees who can be trusted not to release it to the press.) Because it is a private institution and thus is not subject to the State’s Sunshine Law, the University has not had to release the Notice. 

But its not releasing the Notice is shameful. But let's be realistic: doing so would interfere with the UM’s apparent desire to win its battle with the NCAA by staging an aggressive public relations campaign against the NCAA. That way, no one can know for sure what the NCAA had to say about lack of “institutional control.”

The NCAA’s Constitution is organized around a series of “Principles for Conduct of Intercollegiate Athletics,” the first of which is “The Principle of Institutional Control and Responsibility,” about which the following is said:

Responsibility for Control. It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures.

Scope of Responsibility. The institution’s responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution.

Rather than having to confront, publicly, whatever the NCAA alleged was evidence of lack of institutional control, the UM went on the offensive with a bare-knuckle attack on the NCAA by President Shalala. The UM has “suffered enough” at the hands of the NCAA, according to the U’s Chief Cheerleader.  Why? Because the NCAA "violated its own policies and procedures in an attempt to validate the allegations made by a convicted felon,” and because “many of the charges brought forth are based on the word of a man who made a fortune by lying.” 

Who is the unnamed convicted felon? That would be the pint-sized Uber Booster, Nevin Shapiro. The same Nevin Shapiro who, according to numerous reports, during half-time of the football team’s last game at the OB in 2007, confronted UM’s then head of UM in the press box, cursed at him, tried to draw him into a fight, and accused him of causing the UM’s football decline.  The same Nevin Shapiro who, in 2008, was photographed speaking at a basketball fundraiser at a bowling alley while, standing next to him, Donna Shalala had a broad smile on her face while ogling Shapiro’s $50,000 check to the “U,” as Coach Frank Haith and Sebastian the Ibis looked on. The same Nevin Shapiro after whom the UM named its players’ lounge, supposedly in exchange for $150,000. That Nevin Shapiro.

There's more. Dissect the University's attack document and you’ll find a few holes in that green and orange garment.

First, as best can be determined, the NCAA did not “violate its own policies and procedures” when it agreed to pay Nevin Shapiro’s lawyer to ask questions in aid of the NCAA investigation as part of the bankruptcy proceeding for his Ponzi scheme.

What actually occurred, according to the independent counsel hired by the NCAA to investigate the matter, was that the investigator on the case disregarded the advice of the NCAA’s in-house lawyers that the NCAA’s investigators not accept Shapiro’s lawyer’s offer to conduct bankruptcy depositions of persons whom the NCAA itself could not otherwise interview. When the NCAA learned that its investigator had run through this red light and had actually arranged for Shapiro’s lawyer to conduct the depositions and pay her for her time, it made the decision that the evidence derived directly or indirectly from the Perez depositions should not be used in any way against the U of M or any other investigated parties. Nevertheless, according to independent counsel: "The facts do not establish that any NCAA staff member intentionally or unintentionally violated any bylaw, bankruptcy procedure or law in their acceptance or implementation of the Perez proposal. Based on the circumstances as we now know them, it does not appear that any bankruptcy rule or procedure was violated. Nor have we found any NCAA rule or bylaw that specifically prohibits any of the Enforcement Staff’s conduct in this matter."

Second, the UM statement's allegation that the NCAA is basing its allegations on the uncorroborated word of a convicted felon is, at best, naïve. It is common knowledge that prosecutors in criminal cases routinely rely on the testimony of convicted felons to try to get convictions: who else will be around to testify about an accused criminal's conduct? In fact, in federal court at least, the rule is that a criminal conviction can rest on the uncorroborated testimony of a convicted felon. Davis v. United States, 411 F.2d 1126 (5th Cir.1969).

There have been at least two notable exceptions to the blanket of local pro-UM media coverage. One is the Sun Sentinel’s Dave Hyde, a former Herald reporter, who had this to say in a recent column:

Here's a question amid the fans' hosannas for Shalala for the way her statement attacked the NCAA's leadership like a declaration of war:

Where was such strong leadership when it was needed most? Where was it for all those years the school's football coach and compliance officer warned of a rogue booster running through the department? When players were introduced to the slime of Nevin Shapiro?

Here's where: It was naming the players' lounge after him. It was meeting him at a bowling alley to accept a donation. It was listening to the wrong people and ignoring those who could have spared the university this embarrassment.

‘Leadership’ is one of those cliché words in sports. Teams are asked about it. Players are asked to play the part. But when it came for the supposed leaders in the collegiate world to define it, everyone was lacking in this episode. Miami officials. NCAA officials. Everyone.

Shalala played her final, brazen card with this statement. She wants to bring media and public opinion down on the NCAA in a maneuver that will reduce the coming punishment.

The other is the Herald's Linda Robertson, who wrote that Shalala should "reveal the charges against UM. . . . Her school, under her watch, has been accused of 'lack of institutional control,' the Doomsday Switch of NCAA accusations. If that is unfair or unsubstantiated, then show why." She added: "The NCAA has been criticized as the “pot calling the kettle black” by botching its investigation of unethical behavior at UM with unethical behavior by its enforcement staff. UM can and should avoid similar criticism that it is being hypocritical in its reaction." 

Ultimately, it's the Trustees, not the President, who are in charge. The first obligation of a Board member is to become fully informed. If they're truly interested in becoming fully informed, they need go further than the NCAA's ByLaw 22.2, which, since 1994, has stated:

Each member institution, at least once every 10 years, shall complete an institutional self-study, verified and evaluated through external peer review. The self-study shall encompass the following operating principles:  

·      Governance and Commitment to Rules Compliance, including Institutional Control, Presidential Authority and Shared Responsibilities.

·      Academic Integrity [presumably like not whitewashing an All-American wide receiver’s admitted cheating and plagiarizing so that he serves his suspension during summer school]. 

·      Gender, Diversity and Student-Athlete Well-Being.

In the meantime, there's still that secret Notice of Violations. Last week, Leonard Abess, the Chairman of the U of M Board of Trustees, wrote in the Herald that, in reaction to the NCAA investigation, “Our administrators, staff and student-athletes have been forthcoming with information and transparency in their efforts to address any concerns." 

Isn't it time for the Trustees to be "forthcoming with information and transparency" by directing the administration to release the Notice of Allegations?