I've never been a fan of the NCAA-bashing that a lot of people tend to engage in when their favorite team gets caught in the Association's sights. In fact, the NCAA has always seemed a bit like traffic cops to me: You'll sit there and think evil things about them when you're the one that's pulled over, but you have to admit that the roads would be a lot less safe without them.
But there's another reason that we should be a bit more understanding and appreciative than we perhaps are when the cops pull us over: There are limits in this country to what the police can do in investigating a crime. While the credo that it's better that 10 guilty men go free than one innocent man go to prison is not perfectly followed in this country, it's one of those ideas that's important to have, if for no other reason than that it gives us a measuring stick to look at when we're trying to figure out how well we're doing.
By that measuring stick, the NCAA's investigation into the rampant rule-breaking and borderline corruption at Miami has completely, utterly and irrevocably failed. And the price of that failure should be the resignation of the head of the NCAA, Mark Emmert. Anything less than his resignation will leave a lasting stain on the Association's ability to handle future wrongdoing.
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At first, the 52-page report [PDF] of the independent investigators probing the NCAA's investigation looks like little more than the tut-tutting that goes on in bureaucracies when the expense reports are placed in the wrong file folder. And there's a lot of that -- this wasn't run by the legal department when it should have been, there's a office rule but no real rule prohibiting this, and we've found breakdowns in procedures (the favorite problem of all bureaucratic reviews).
But there's something more troubling that comes from a full reading of the report -- the idea that the enforcement staff of the NCAA had gotten the impression that the rules no longer applied to them. Or, to the extent that the rules did apply to them, that those rules could be bent.
The story will be familiar to those who have paid even passing attention to the Miami scandal: About two years ago, former Miami booster and current convicted Ponzi scheme king Nevin Shapiro decided to unburden his felonious heart to the NCAA about his violations of the Association's bylaws. There were all sorts of sensation allegations in a Yahoo! report and other media accounts, but the upshot was that Shapiro had paid for many thousands of dollars in illegal benefits for Hurricanes athletes.
There's nothing wrong with the NCAA working with Shapiro. He knows where the bodies are buried, and the fact that he was a felon was part and parcel with his involvement with Miami -- he had the ill-gotten gains and the lack of scruples that allowed him to "support" the Hurricanes in his own twisted way, and he did exactly that.
But it's how the NCAA went about working with Shapiro that took the investigation off the rails.
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Even aside from the allegations that lie at the heart of the investigation into the investigation, there are troubling signs all over the report that the enforcement staff at the NCAA had taken things a bit too far. The following is contained in a footnote to the report:
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. We understand that the NCAA will disclose the existence and nature of these payments to U. Miami and other involved individuals, as well as the NCAA’s Committee on Infractions, so that they may be part of the evidence used to weigh the relative credibility of Mr. Shapiro, similar to the requirements of prosecutors to disclose payments to witnesses.
See, they were going to tell us about the $4,500 they deposited into the commissary account of a convicted felon so he could phone them. I'm sure that Shapiro gave his word that he would only use the funds from the NCAA for his phone calls -- scout's honor! I feel better already.
But what's truly troubling about the report is that some individuals in the NCAA decided to use Shapiro's criminal defense lawyer to worm their way into a bankruptcy proceeding and use the extraordinary subpoena power that the bankruptcy process allows to get information. Just like they sometimes get information from cooperative law enforcement agencies in criminal cases that cross paths with the NCAA's investigations.
Except, for a variety of legal and ethical reasons, the NCAA's legal department didn't see things that way. So Ameen Najjar dreamed up a way around that advice, used that workaround despite never having run it by the legal department and lied to his superiors about whether he had run the workaround past the legal department. The whole thing came crashing down in an arcane and bureaucratic comedy of errors.
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It's important to understand that Miami has already paid a steep price in the NCAA investigation. The school has given up two bowl games, a berth in the ACC Championship Game and left some scholarships open to account for the punishment that was coming from the Association. To put that into context: While the number of scholarships is probably substantially lower, the postseason punishment is equivalent to what Southern Cal got in the Reggie Bush scandal.
It's also important to understand something that has happened in between the opening of the Miami investigation and today: Penn State. While the severity of the crimes in that case can't be used to excuse what happened in Miami, it does give us some perspective; Penn State got four years of a postseason ban and steep scholarship reductions. If the NCAA is going to ask for any more than one additional year of postseason sanctions, the progress that it made by dealing with the Penn State issue will be destroyed by dealing out a punishment nearly as bad to Miami. It will become an absurdity.
So the Miami investigation should go forward to establish the facts of the case, but the punishment should end. The university has paid enough to make an impression on players, fans and boosters, and the NCAA investigation is too corrupted for any sanctions that come from it to be trusted. The NCAA is supposed to be in the justice game, not the vengeance game, and there is no way justice can come from an unjust investigation.
And because of that and everything that went wrong on his watch, Mark Emmert should resign.
Because the final thing it's important to understand is that the botched investigation has already cost an NCAA employee her job. Julie Roe Lach was fired by the Association, despite being lied to by one of her employees. And despite this paragraph that capped off the investigation's section on her responsibility:
One can question whether this hands-off approach to the vetting of issues of investigative propriety is wise, as it can be seen as an abdication of responsibility for the most sensitive judgment calls in an investigation. However, that approach is more understandable in light of the number of important matters that occupied Ms. Lach’s time and attention at that time. During the fall of 2011, Lach was involved in a variety of time-consuming initiatives, including organizing and coordinating the Enforcement Working Group and restructuring the Enforcement department. She also was traveling regularly to meet and explain the new initiatives to the NCAA members around the country. In addition, she was overseeing a variety of sensitive investigations. In light of her daunting workload, it is not surprising that Ms. Lach paid little attention to the legal approval process for the Perez proposal, other than to make sure that it took place.
Julie Roe Lach was a convenient fall girl, and Mark Emmert knew that a head would have to roll before this was over. Her main failing -- not keeping close enough tabs on her employees in one of the most sensitive investigations the NCAA has faced in years -- was the same failing that Emmert has made so far. The logic for getting rid of her can hold, but only if Emmert also leaves.
But there's another reason that Emmert should resign, and it comes from his own remarks Monday: "With the completion of the external enforcement review, we recognize that certain investigative tactics used in portions of the University of Miami case failed our membership."
The NCAA, as the report makes clear, is an organization set up to serve the interests of its membership. If the Association failed in that respect, then Emmert's administration has completely failed. And in destroying the credibility of the Association and the Miami investigation, the NCAA has failed the fans as well.