IN MY OPINION

Greg Cote: NCAA should drop case against UM, punish itself

 

gcote@MiamiHerald.com

It is good and right that the NCAA said Monday it would move forward with its investigation related to the University of Miami — the problem is it is moving forward against the wrong party. College sports’ governing body should drop its case against UM and instead direct the scrutiny and punishment upon itself.

NCAA president Mark Emmert distinguished himself for demanding accountability, especially for holding head coaches responsible for the misdeeds of their assistants or staff. Now Emmert has distinguished himself for hypocrisy. For not holding himself to the same standard of responsibility he would demand of others.

This gentleman somehow gets to continue sitting regally upright upon his high horse when the organization at his command, in effect his police force, has admitted and been found guilty of serious breaches of ethics in its own investigation.

Emmert somehow gets to continue being the imprimatur and face of cleaning up college sports when his own operation is proved dirty.

UM president Donna Shalala voiced strongly on Monday what I have previously written: “We have been wronged in this investigation and we believe that this process must come to a swift resolution, which includes no additional punitive measures beyond those already self-imposed.”

Shalala said “the NCAA has not lived up to its own core principles.” She called the investigation of Miami “lengthy and flawed.” She accused the NCAA of “unprofessional and unethical behavior.”

She was being kind.

The outrage reached a new head Monday.

Not quite a month earlier the NCAA acknowledged wrongdoing in its laboriously protracted probe of UM in the Nevin Shapiro matter. Emmert admitted his staff wrongly paid Shapiro’s attorney to use her subpoena powers in an unrelated bankruptcy case to gather information against UM in two depositions — information that would not otherwise have been available.

On Monday, an independent external review of the matter produced a damning 52-page report that makes Emmert and his underlings look even worse than first thought.

The findings accuse Emmert of an obvious lack of oversight. But the key development, to me, is that the NCAA staff went ahead with payments to Shapiro’s lawyer to improperly obtain information even after being strongly and clearly advised not to by the NCAA’s own staff counsel.

One presumes that a lengthy, high-profile investigation of a major university would merit the direct oversight of Emmert, and that staff attorneys being consulted to rule on payments to an outside counsel regarding subpoenas would further draw the attention of the president.

But, while two staff investigators have been fired over this unethical behavior and another has resigned, Emmert is unscathed, free to announce Monday that “the committee will now move forward” toward a Notice of Allegations against Miami.

The NCAA needs to check its own house before looking for termites elsewhere. The corruption of the UM probe calls into question all those that came before it. That is, unless one is naïve enough to believe that the same investigators who were unethical in this case — despite their own lawyers’ warning — had only been angels before.

Emmert said the UM case would proceed to the infractions committee, but said that committee “has some latitude” in meting out punishment.

Dear Infractions Committee:

There are three reasons why there should be no added sanctions against Miami from this point forward. Under normal circumstances none of the three alone might be reason enough. But in this unique circumstance the combined weight of all three factors should be enough:

1. The NCAA’s botchery of the case — Emmert himself Monday called this an “embarrassment” and a “debacle.” It was estimated 20 percent of the investigation’s findings were tainted. That chunk of info supposedly will be stricken from the record and not held against Miami when the infractions committee deliberates, but any first-year lawyer will note you can’t put the smoke back in a cigar. A judge can admonish jurors to disregard what they improperly heard. But they still heard it.

An investigation 20 percent tainted is a tainted investigation.

This wasn’t even the first or only ethical question involving the NCAA’s probe of Miami. Investigators threatened potential witnesses who would not voluntarily testify, telling them Shapiro’s claims against them would be believed unless they did. That is the presumption of innocence turned upside down. That is a dirty, strong-arm tactic bordering on extortion.

Even Emmert would not defend it Monday, saying only, “We have to sit down with our membership and determine what approaches to obtaining information they find acceptable.”

How about this approach: Be aboveboard and ethical and don’t do anything that makes you look even worse than the people you are investigating and about to judge.

(The NCAA also apparently has provided Shapiro a free cellphone. If that isn’t an ethical breach, it’s enough a blurred line that I would hate to defend it if I were Emmert.)

2. The accuser — I’m guessing it isn’t often that the NCAA’s key witness against a school is a man serving hard time in a $930 million Ponzi scheme, as Shapiro is.

Hurricanes fans who might be angry at Shapiro are nowhere near the front of the line compared to victims he was found guilty of swindling.

This isn’t to pin all of UM’s troubles on Shapiro. That would be wrong. If there are not willing athletes on the other side with hands out, renegade boosters do not exist.

I would imagine, though, that an accuser’s motives and reputation would be given weight in any case, and that in this case the accuser, let’s just say, has relinquished any future bid for sainthood.

3. Time already served. The university and its athletic department — the football program especially but also men’s basketball — have lived with this cloud for some 2 1/2 years now, serving a de facto probation period and facing an uncertain future that has hindered recruiting. Who’s to say even Miami losing assistant football coach Mario Cristobal to Alabama on Monday wasn’t related in some way to possible looming sanctions against UM.

More tangibly, Miami already has self-imposed two seasons of football postseason bans that have encompassed two bowl games and what would have been the school’s first ACC Championship Game. Eight players already served a total of 19 games in suspensions. Coach Al Golden self-imposed a reduction of five scholarships on National Signing Day earlier this month.

This strikes us as fair punishment from what we already know of the allegations.

No other school ever investigated by the NCAA has stepped forward and volunteered more sanctions to put this in the past and move on.

No other school’s accuser has been more personally suspect and notorious.

No other school’s investigation was put on hold while the NCAA investigated its own wrongdoing in the case, its own violation of public trust.

Enough.

Read more Greg Cote stories from the Miami Herald

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