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NCAA: Some information obtained improperly in UM investigation

The NCAA dropped a bombshell Wednesday afternoon, admitting it improperly obtained information via the attorney of former booster Nevin Shapiro – and paid her – during its investigation into the University of Miami’s football and basketball programs.

NCAA president Mark Emmert said in a national teleconference that college sports’ governing body has hired outside counsel to investigate its findings and will not move forward with a Notice of Allegations toward UM or any parties involved until it is completed.

Using phrases such as “grossly inappropriate” and “shocking,” Emmert said the NCAA must sift through the information that was improperly obtained and throw it out — a process he says that should take no longer than a week or two.

“We can’t have the NCAA bringing forward allegations collected by processes no one can stand for,” Emmert said. “We have to go through all of the evidence to determine what has and has not been appropriately collected and influenced by improper conduct.

“The single most important issue of fairness for me is that we make sure that any allegations brought forward are based on good, sound information that was gathered through appropriate means. We’re going to move [forward] as fast as possible, but we just have to get this right.’’

When asked if the NCAA could rectify the situation soon enough for Miami to get closure in the nearly two-year-old case that stems from imprisoned Ponzi-schemer Shapiro’s accusations of rampant NCAA violations, Emmert replied, “I certainly hope that it’s weeks, not months.’’

Because the NCAA does not have subpoena power, Emmert said NCAA investigators improperly hired Shapiro’s lawyer, Maria Elena Perez, to depose individuals and question them in Shapiro’s bankruptcy case. Emmert said the NCAA didn’t learn until last fall that it had been going about its investigation this way, despite multiple reports in many publications, including The Miami Herald.

Former UM equipment manager Sean Allen, who worked for Shapiro and his budding sports agency Axcess Sports, told The Miami Herald in October that when he was subpoenaed in Shapiro’s bankruptcy case, NCAA investigators were present with Perez and waiting to hear his testimony. Allen told The Miami Herald earlier this week he was told by the NCAA his testimony was being thrown out and he was being cleared of any wrongdoing.

If Perez was briefed by NCAA investigators before the deposition to ask specific questions of those being deposed, that would be, according to Miami-based lawyer Jason Setchen, who represented former UM basketball player DeQuan Jones last year in the NCAA case, “beyond egregious. I can’t tell you how impermissible that would be.

“That would be circumventing their own rules and regulations in an unfair advantage over [UM] by getting information that might not have otherwise been available to them in the course of their own investigation. Ironically, the NCAA’s purpose is to restrict unfair competitive advantage.’’

Added Ben Kuehne, past president of the Dade County Bar Association: “To use the legal process to do what the NCAA is not able to do brings up an assault on the system of justice.’’

Kuehn said this of the fact that the NCAA won’t use the evidence from the bankruptcy depositions: “If that’s the minimum the NCAA is suggesting, that’s a joke. This entire investigation has been compromised. Anybody who relied on information that was obtained improperly was tainted. The whole organization is compromised.

“The entire investigation should be dropped.’’

How did the NCAA learn that investigators had been acting inappropriately?

Emmert said receipts were turned in by investigators for legal work by Perez.

The issue of the improper depositions initially was discovered by the NCAA in the fall, Emmert explained, “when bills, invoices were presented ... for legal work that had not been approved. No one had approved the hiring of an outside attorney, and some many months later, a bill was presented to pay for those expenses.

“It immediately raised the question, ‘Where the heck did this come from?’’’

Emmert said some investigators connected to the UM case have been dismissed. “Since that time,’’ he said, “there has been a great deal of inquiry of what had transpired and what the legal role of this counsel [Perez] had been.

“…One of the questions that has to be answered unequivocally: What was the nature of that contractual arrangement [between the NCAA and Perez]? What was all the activity that [she] was involved with? ... How did this individual engage in these activities on our behalf?

“How in the world could you get this far without it being recognized that this was an inappropriate way to proceed?”

One reporter during an afternoon teleconference with Emmert asked the NCAA president, “So, essentially the NCAA was paying an attorney who was the subject of a current investigation to gather information of itself?’’

Replied Emmert: “That appears to be the case.’’

Emmert said any evidence that is tossed out will not be revisited by investigators, but he stressed that only “small portions” of evidence were collected improperly.

“We’ll use the information that was collected appropriately,” he said. “My understanding is there is a great amount of evidence that has been compiled in this case.”

Among the claims Allen made during his deposition that included incriminating evidence was that he witnessed Shapiro paying money to UM players and that Shapiro gave him $3,000 to take UM recruits Ray-Ray Armstrong, Dyron Dye and Andre DeBose (who eventually went to Florida) to a strip club in an unofficial recruiting visit to UM. Asked Shapiro’s motivation in giving players money, Allen said: “One, I think he enjoyed being around them. The other part is he ultimately wanted them to sign with Axcess Sports.”

Though the NCAA does not have the same legal authority as the court system, Emmert was asked if this could be viewed as a mistrial of sorts and work in Miami’s favor.

“It’s premature to answer that question...,’’ he said. “This is a shocking affair.”

The lawyer who will investigate the NCAA’s conduct is Ken Wainstein, a partner with the law firm Cadwalader, Wickersham & Taft LLP. Wainstein was formerly Homeland Security Advisor to President George W. Bush and has served as the Assistant Attorney General for National Security as well as the FBI general counsel.

Setchen said now is the perfect time for UM lawyers to be proactive in attempting to settle, and bring an end to the allegations that span from 2002 to 2010 and involve UM athletes, coaches and staff members.

“I think the university’s legal team should reach out to the NCAA right now — their leverage will never be greater than it is — and attempt to strike a deal in an effort to bring the matter to a conclusion not only for the university’s sake, but with these newest developments, for the sake of the NCAA,” Setchen said. “They could reach some type of summary disposition or stipulated agreement which would effectively remove the urgency of the situation.

“Then, the UM investigation would be over, which would alleviate the urgency, and would provide the NCAA with adequate time to carefully review its processes and procedures.’’

UM president Donna Shalala released this statement in reaction to the NCAA’s findings:

“Since the University first alerted the NCAA to the possibility of violations more than two years ago, we have been cooperative and compliant with the NCAA and, I believe, a model for how institutions should partner with NCAA staff during investigations. In addition to encouraging current and former staff members and student-athletes to cooperate with investigators, we have provided thousands of documents to the enforcement staff.

“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.

“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.

“I want to thank our community for their continued support and patience. Stand with the U.”

Emmert was asked if to his knowledge this situation was unprecedented.

“I’ve only been here 2 ½ years,’’ he said. “But in my 2 ½ years, I’ve certainly never seen anything like this – and don’t want to see it again.’’

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