The University of Miami may have caught a break when the NCAA admitted breaking its own rules by improperly gathering certain evidence for its investigation into the Hurricanes’ athletic program. But the school should not be breaking out the champagne just yet.
The NCAA might still push forward with the nearly 2-year-old probe, based on former UM booster Nevin Shapiro’s admissions that he handed out cash and other gifts to dozens of the Canes’ star football and basketball players.
The investigation could still be built on Shapiro’s financial records and other documents, along with testimony from former UM players, coaches and staff members who already cooperated with the NCAA.
The NCAA could restart the investigation from scratch, which is unlikely. Or, it could cut a deal with the university, which has already suspended football players, given up post-season bowl appearances and suffered reputational damage.
“It’s in everyone’s interest to get the UM investigation behind UM and the NCAA,” Nova Southeastern University law professor Robert Jarvis, who teaches ethics, said Thursday. “If a settlement was being contemplated, this will speed along any settlement negotiations.”
On Wednesday, the NCAA shocked South Florida — and the rest of the country — when it acknowledged in a press conference that its investigators “improperly” obtained information by working too closely with the criminal defense attorney for Shapiro, a now-convicted Ponzi schemer serving a 20-year sentence.
NCAA President Mark Emmert admitted that the association paid Miami attorney Maria Elena Perez for taking the December 2011 depositions of two witnesses she subpoenaed to testify in the bankruptcy case of Shapiro’s former Miami Beach company. He said the NCAA learned about her arrangement with the association’s enforcement officers last fall.
Under NCAA policy, the association’s investigators did not have the power to issue subpoenas to compel the testimony of the two witnesses: former UM assistant equipment manager Sean Allen, who briefly worked for Shapiro’s sports agency and later for the businessman himself; and Jacksonville lawyer Michael Huyghue, who founded the sports agency known as Axcess and brought in Shapiro as a partner after he invested $1.5 million.
Shapiro’s lawyer, Perez, told The Miami Herald that she took the depositions as part of her strategy to corroborate his version of events and to seek a reduced prison sentence for him. She grilled both Allen and Huyghue, who testified under oath, about Shapiro’s $930 million investment scam, his gift-giving to dozens of UM players, and their collective financial efforts to recruit Canes’ prospects for the NFL.
“These questions were about following the money trial,” Perez said.
Jarvis and other legal experts said Perez may have an ethics problem with the Florida Bar if she compromised her client’s interests while working on behalf of the NCAA in taking the two depositions. Perez said she did nothing wrong because she always kept Shapiro’s defense paramount.
No NCAA representative attended the men’s depositions, according to court records. But an NCAA investigator stood outside the office where Allen answered the lawyer’s questions. Copies of both depositions were given to the NCAA.
Emmert said those depositions are likely tainted and cannot be used in the NCAA’s ongoing investigation. He announced the NCAA hired an outside attorney, Ken Wainstein, former homeland security advisor to President George W. Bush and FBI general counsel, to examine the two depositions and related evidence.
“My hope and intention is that the membership will see that we’re going to hold ourselves up to the same standards we expect to hold others to,” Emmert said. “Otherwise we’re in the wrong business.”
Wainstein’s job will be to determine whether that evidence should be entirely thrown out and whether it contaminated any other part of the NCAA’s investigation.
But while Emmert said the NCAA’s misconduct was “grossly inappropriate,” the association’s president said the two depositions represented “small portions” of the overall evidence, which covers about decade of alleged wrongdoing. He also said the independent review would take weeks, not months.
Nova Southeastern’s Jarvis said that the NCAA’s investigation can still be salvaged, despite the association’s admission of misconduct.
“Could you cordon off the tainted evidence? I think you probably can,” Jarvis said. “The question is, do you have enough evidence left over?”
John Infante, a former compliance officer at NCAA Division I schools who runs the Bylaw Blog, said investigators “still have to go through and find out exactly which allegations or specific violations’’ can’t be used.
“I don’t know how much the NCAA follows the fruit of the [poisonous] tree doctrine,” Infante said. It “basically says if you gather information you wouldn’t otherwise have gotten without the use of an improper lead, you can’t use that new information either. But anything the NCAA cannot corroborate is helpful for Miami.”
A law professor at the University of Florida took a contrary view, raising doubts about why the NCAA says it must toss out the depositions and related evidence at all. Professor Bob Dekle, who teaches prosecutorial ethics, said the collegiate association is not a government agency and therefore is not bound by constitutional restrictions on use the use of evidence.
“Just because someone has obtained evidence through chicanery doesn’t mean the evidence is not admissible,” said Dekle, a former state prosecutor. “I don’t see any legal bar to the NCAA using this evidence.”
Then he added: “I’m sure the NCAA is looking for a way to bring the matter gracefully to a conclusion with a limited amount of egg on their face. It’s more a matter of perception than reality about the admissibility of improper evidence. The NCAA is displaying an excess of concern about image, it looks like to me.”
UM officials issued a statement after the association’s admission of misconduct that suggested they stood to benefit in the end.
“I am frustrated, disappointed and concerned by President Emmert’s announcement today that the integrity of the investigation may have been compromised by the NCAA staff,” university President Donna Shalala said.
“As we have done since the beginning, we will continue to work with the NCAA and now with their outside investigator hoping for a swift resolution of the investigation and our case.”
Jarvis, the Nova Southeastern professor, said the NCAA has been under significant PR pressure since the controversial resolution of last year’s Penn State sexual molestation case. He said the association would likely be interested in making a deal with UM.
“This [admission] definitely helps UM because it gives them some leverage,” he said. “It brings the NCAA down to UM’s level, or, if you prefer, this brings UM up to the NCAA’s level.”