NCAA president Mark Emmert had one good thing to say about his organization when a report was released Monday detailing his organization’s missteps and questionable decisions regarding its ongoing investigation of the University of Miami: The NCAA’s investigators did not do anything illegal.
That’s about the only good look here for the NCAA.
When the head of this self-policing association has to point that out, it means the NCAA has failed miserably. The public perception must be that the NCAA is an airtight organization that follows its own policies while doling out punishment to schools that violate the rules.
These are the details of 52-page report (complete report and supporting documents) released Monday by an outside counsel hired by the NCAA:
• It scolded the enforcement staff for not following the organization’s own legal advice.
• It found the NCAA violated its own policies when the enforcement staff paid Nevin Shapiro’s attorney some $20,000 to obtain information (through depositions in Shapiro’s bankruptcy proceedings) for its investigation of the University of Miami’s athletics department.
• It chastised the NCAA for violating the expectations of its own membership and for failing to maintain proper oversight of its own enforcement arm.
Oh, and this, of immediate relevance to the University of Miami: The NCAA’s investigation of Miami for its long-standing relationship with Shapiro, a booster who provided impermissible benefits to scores of Hurricane athletes, will continue, albeit without any information gained through depositions conducted by Shapiro’s attorney during the convicted felon’s bankruptcy trial. (Approximately 20 percent of the investigation’s evidence will be thrown away because it was obtained improperly, according to an estimate by Kenneth L. Wainstein, the attorney who conducted the investigation of the NCAA’s enforcement staff.)
Those are the details of a rather damning report.
But this is the takeaway: When the NCAA inevitably releases its findings in the Miami case, how will anyone be able to take any punishment seriously?
How can anyone take the findings of any future NCAA investigation seriously, for that matter, given that the organization can’t seem to follow its own rules?
Why would anyone believe a cop when the cop’s been proven to be dirty?
“It’s of paramount importance that we follow our own rules when it comes to a matter like this and that we deploy investigatory tools that the membership is very comfortable with,” Emmert said on a conference call Monday. “We’re not a law enforcement agency. We, in fact, live inside a voluntary association who has to have confidence in the fact we’re engaging in activities of which they approve.”
The NCAA does deserve some credit in this ugly situation: It investigated itself as thoroughly as it investigates member institutions. After learning on Jan. 23 that some of the information in the Miami probe might have been obtained in an unethical fashion, the NCAA hired outside counsel to shed light on its own missteps. Sunlight is the best disinfectant, and a 27-day investigation by the outside counsel interviewed 22 people inside and outside the organization, including Shapiro and his attorney, Maria Elena Perez.
Also, heads rolled inside the organization for the lack of oversight and flouting of its own legal advice. The NCAA fired its head of enforcement, Julie Roe Lach, and appointed a new interim vice president of enforcement. Three other NCAA employees were either fired or resigned in fallout from the investigation. The report was most damning of Ameen Najjar, a former NCAA director of enforcement who initially led the Miami investigation. He texted Shapiro's attorney, saying he found "a way around" the NCAA's legal concerns on retaining her.
One person who escaped unscathed, though, was the man whose desk is where the buck stops: Emmert himself.
“This is an outcome that nobody wants to see on their watch or anyone else’s,” Emmert said. “This is something that is an embarrassment to the association and our staff. It’s something that is contrary to all the activities and the direction that we’ve been engaged with, and all the things we espouse. This is not good situation at all.”
No, it’s not. And not just because this one NCAA investigation still feels compromised, even if the NCAA threw out all the information it obtained improperly.
This is not a good situation because of the perception this creates. The NCAA is institutionally obsessed with making sure member organizations follow the letter of its law ― and the NCAA rulebook is hundreds of pages long. Athletic programs get punished for big things, sure, like when coaches have sports agents funnel high school players to their program. They can get punished for little things as well: Coaches not logging phone calls properly to recruits or student-athletes accepting gifts of food or drink or small amounts of cash, or even rowing teams following the tradition of “betting their racing shirts” on the outcome of a race. (The final example was the winner of The New York Times’ “Stupid NCAA Rules Contest.”)
But if you’re going to hold member institutions – and, by extension, 18- to 22-year-old kids ― to follow an absurd number of rules, you better follow the letter of the law yourself. The NCAA should be held to a higher standard than the schools it polices. It’s not like the NCAA’s enforcement wing just didn’t know what it was doing here. When the opportunity presented itself to obtain more information for the Miami case by using the subpoena power available in bankruptcy proceedings, investigators asked the NCAA’s legal staff for advice on whether they could “engage Nevin Shapiro’s criminal defense attorney.”
The NCAA’s legal staff said they should not.
Investigators did so anyway.
And now they are paying the price: With firings and resignations inside the organization, with an embarrassing report that details internal issues at an organization that’s meant to police these sorts of things, with comprised confidence in its ongoing Miami investigation, and, most of all, with a total undermining of the definition of what the NCAA should be: a place that seeks out the wrong-doers but isn’t the wrong-doer itself.