How Does the Botched NCAA Investigation of Miami Affect USC?
Kyle Terada-USA TODAY Sports
Unless you want to read Cadwalader, Wickersham & Taft LLP's entire 52-page report on its findings of the NCAA's use of counsel in Nevin Shapiro's bankruptcy depositions, I'll cut to the chase here.
The NCAA's investigators didn't break any rules in its Miami investigation but the Vice President of Enforcement, Julie Roe Lach, has reportedly been fired and NCAA President Mark Emmert called the findings an "embarrassment."
But no rules were broken, folks. From the report:
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.
So basically, if the NCAA doesn't have a specific rule prohibiting its members from doing something naughty—like, you know, ignoring advice from their lawyers—then everything is OK. Of course, if you're a member of the Association, like USC, then you will get hammered by the NCAA if you should've known a rule was being broken.
Let me repeat myself here: An NCAA's investigator abused his powers by breaking a universally-accepted rule but because it wasn't in writing, no "NCAA employee knowingly violated a specific bylaw or law."
But USC gets hammered by the NCAA because it should've known a rule was being broken?
Should USC pursue civil action against the NCAA?
Let's go back in time, shall we? To the year 2010, when all hell broke loose in Los Angeles.
According to the NCAA's Committee of Infractions, then-USC assistant coach Todd McNair knew that then-running back Reggie Bush was receiving illegal benefits from two would-be sports marketers—McNair claims he didn't know and to be honest, the evidence against him was pretty thin.
McNair is now embroiled in a lawsuit against the NCAA that so far, is going his way—Los Angeles Superior Court Judge Frederick Shaller has ruled that the NCAA was "malicious" in its treatment of McNair. More from the Press-Telegram:
Shaller issued a 10-page ruling that said emails between an investigative committee member, an employee and an appeals' division worker demonstrated "ill will" or "hatred" toward McNair. The Trojans' running backs coach was prevented from contacting recruits and his contract was ultimately not renewed by USC.
Why is this important and how do the Miami findings relate to USC? For one, Shaller's decision was the first time we've ever heard of a person with authority (a judge) painting the NCAA in poor light.
Secondly, Shaller is a USC graduate and there has been some message board/talk radio fodder over whether or not Shaller is biased. We now know that Shaller is most likely not biased thanks to that newly-released 52-page report released on February 18.
Of particular interest is an email exchange (page 14 of report) from then-Director of Enforcement Ameen Najjar to Managing Director of Enforcement Tom Hosty and Lach:
The depositions would be conducted by Perez and she has agreed to ask any questions we provide her. Additionally, members of the enforcement staff will be able to attend the depositions, as they are open to the public. Other than conducting these depositions, I do not believe we will be able to secure interviews with the witnesses or as in the case of Allen, will simply lie to us during an interview.
Allen is Sean "Pee Wee" Allen, a former assistant equipment manager for Miami's football team and one of the witnesses that the NCAA hasn't been able to procure information from so far. Since the NCAA doesn't have subpoena power, Allen doesn't have to talk to NCAA investigators.
But Najjar figured out a way around it; pay Nevin Shapiro's lawyer to ask Allen questions while he is under oath during bankruptcy depositions. The information gleaned could help the NCAA in its quest for truth in its investigation of Miami.
In that above-referenced email, Najjar indicated that Allen would lie outside a deposition. The NCAA has battled its public perception of guilty until proven innocent—which was vehemently denied by President Mark Emmert in a teleconference call Monday—but this seems to lend credence to that widely held perception. Good job, good effort, NCAA.
But there's something else that is more disturbing in this report.
Najjar may be the liar. According to Najjar's interview with the NCAA (page 22 of report), Mr. Najjar stated that he “backed out and didn’t attend the deposition.” But according to Allen's lawyer, and eventually the NCAA, Najjar was asked to leave the deposition:
Mr. Najjar attended the deposition, but he was asked to leave the deposition by Mr. Allen’s counsel.
What we have here is an investigator who appears to have been caught in a lie regarding his absence at a deposition and that same investigator breaking unwritten rules to get information from a witness who he categorizes as someone who will lie.
Got it. Anything else?
Yes, yes there is. If the NCAA's iron fist hasn't been proven to be wielding over the years, maybe this tidbit will make it more clear: The University of Miami knew the NCAA was sitting in on the depositions of witnesses who could help the NCAA's case against Miami but after noting some concerns about it, the university's lawyers didn't say another word about it. Why? From the report's page 37:
When asked in an interview why they kept silent after October, the attorneys explained that they did not want to appear uncooperative or to look like they were standing in the way of the truth.
Even university attorneys are afraid of the NCAA. But hey, this is a voluntary membership, right? Everything is transparent and the NCAA surely has nothing to hide from its members, right?
Except, umm, the burner phones.
The NCAA, the pristine association that stands for purity and amateurism in college athletics, paid for a burner phone. You know, the ones that terrorists, snitches, spies, drug dealers and your basic thugs use. From the report's page 21:
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.
Does the name Johanningmeier sound familiar to USC fans? It should—he was the lead investigator in the Reggie Bush scandal. More from CBS Sports:
Veteran enforcement official Rich Johanningmeier worked the bulk of the case, according to a source. One former coach who was part of a Johanningmeier investigation once called him "a bulldog" in NCAA cases. Johanningmeier has been involved in several high-profile cases.
And there you have it, the NCAA all wrapped up in a nice little bow. What USC fans thought might be true is starting to become a reality.
Burner phones, finding ways around witness roadblocks by manipulating depositions, "management failures," assuming a witness is going to lie if questioned and getting out of hot water because "a universally understood" policy isn't listed in a rule book are all part of your NCAA.
The NCAA's mentality is no clearly stated than on page 45 of the report:
Mr. Johanningmeier retired in May 2012 without any inkling that Ms. Perez’s proposal could cause problems for the NCAA. He still maintains that there has been an overreaction to the issue.
Overreaction? An investigator had access to information that would have never been gleaned had the NCAA not paid Shapiro's lawyer (Ms. Perez) to schedule depositions. Johanningmeier just doesn't seem to understand how many lives have been ruined due to the over-reaching arm of the NCAA.
The NCAA will do anything to win. All for the sake of preserving the sanctity of college athletics. And to hell with the collateral damage.
While USC still hasn't made an announcement on whether or not it will go over its options—and it may never do so—McNair's lawsuit might just come closer to an end. We'll probably see some sort of a settlement that includes a confidentiality clause in it because the NCAA would surely demand it.
But now you have to wonder if the NCAA had somehow managed to be involved in Reggie Bush's scheduled deposition with Lloyd Lake's lawyers as well. Remember, Bush settled with Lake—who was suing Bush in an attempt to recoup almost $300,000 in cash and gifts he claims he loaned Bush—just one day before Bush's scheduled deposition.
One day. Then poof, it was gone. Case settled, depositions canceled.
If the NCAA had convinced Lake's lawyer to ask some pertinent questions on its behalf but the case was settled before the NCAA could get the answers it needed from Bush, how ticked would the NCAA have been?
Less than two months after that deposition was canceled, the NCAA absolutely hammered USC. Hell hath no fury like a scorned NCAA?
And maybe this is all just a coincidence that the NCAA's biggest sources or witnesses in its high-profile cases have been a convicted drug dealer and career offender in a United States District Court Southern District of California Presentence Report, a convicted drug trafficker and money launderer and a convicted Ponzi scheme architect.
USC may just start to realize that there is no such thing as coincidence.
Right now, NCAA President Mark Emmert is perfectly content to not go back and look at prior investigations—he told media members on a Monday teleconference call that there is "no evidence" of other tainted cases.
"We don't have any evidence or indication of that but If we should bump into that, we'll certainly deal with it that way," Emmert added. "If we find something that is inappropriate in our behavior we'll deal with it directly."
The NCAA may just have to do that because McNair vs NCAA is pending and it's not looking good for the NCAA's Committee on Infractions.
But it is looking good for USC getting back on track in restoring its credibility and reputation.
The NCAA has an open wound and it is bleeding.
USC might want to put on some latex gloves and go in for the kill.
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