Rules of the Game:  An Investigation Tainted?

The beginning of February marks one week since the NCAA announced it was conducting an external review of its investigatory arm after problems were uncovered by the NCAA regarding its investigation of the University of Miami’s football and basketball programs.  NCAA President Mark Emmert stated that he hoped the external review would take no more than two weeks.  The external review stems from the association’s acknowledgement that its investigation of the University of Miami included a “very severe” incident of improper conduct where a former investigatory official improperly obtained information through a legal proceeding that did not involve the NCAA. 

The NCAA learned of potential rules infractions after University of Miami booster Nevin Shapiro, who was convicted for his involvement in a $930 million Ponzi scheme, alleged several coaches within the University’s athletic department acted unethically, including former men’s hoops coach Frank Haith and former football assistants Aubrey Hill, Clint Hurtt, Joe Pannunzio, Jeff Stoutland and even current football head coach Al Golden. 

As to the alleged impropriety on the part of the NCAA’s investigatory arm, the association learned that one of its former investigators paid a former criminal defense attorney of Mr. Shapiro’s to depose individuals in a bankruptcy case in order to gather information regarding the UM investigation it might not have been able to obtain on its own, since the NCAA has no subpoena power.

Mr. Emmert stated that any evidence that was improperly obtained in its investigation would be thrown out.  The question is whether how much evidence would be affected and how much evidence will be left for the NCAA to substantiate its notice of allegations to the University of Miami.  After the notice of allegations phase and after the responses to those allegations is reviewed, the NCAA’s committee on infractions would issue sanctions.  However, even though the investigatory arm and committee on infractions operate independently, if there is not enough evidence to support notices of infractions, it is highly unlikely that the committee on infractions would issue sanctions based upon charges which were unsupported or weakly supported.

The events described above is part of a principle described in law school (and potentially several television legal dramas) called “fruit of the poisonous tree.”  In short, evidence that was obtained as the result of an illegal search or seizure cannot be used at trial, and subsequent evidence gathered is also not permitted to be used at trial because it was, say it with me, fruit from the poisonous tree.  It should be noted here that judges look very closely at the evidence, how it was initially and subsequently gathered, and whether, based on all of the facts and circumstances, it is indeed tainted.

Upon the completion of the NCAA’s external investigation of itself, it can complete its investigation of the University of Miami’s athletic program.  If the NCAA believes it has competent and untainted evidence to supports its allegations, it will move forward.  If the University feels that a majority of the evidence was tied to the tainted evidence, the school could assert that the investigation should be removed from the NCAA’s enforcement process. 

The Miami Herald interviewed University of Wyoming College of Law Professor Jerry Parkinson, who worked for 11 years with the NCAA’s committee on infractions.  Mr. Parkinson stated that for the case to be removed from the NCAA’s enforcement process the conduct exhibited by the investigatory arm would need to be so outrageously reprehensible that the entire investigation was tainted.  In other words, if the majority of the evidence is not reasonably tied to the tainted evidence, then the University of Miami would not have legal footing to challenge the allegations. 

For the time being we can guess where the NCAA’s external investigation will lead and how the University of Miami will react, if at all.  No matter what happens, the NCAA needs to take a hard look at its enforcement arm and make sure it is now operating properly to avoid any further issues of impropriety in its investigations of allegations of misconduct by its member schools and those schools’ employees and athletes.

In other news…

You may have also heard that the NCAA’s Division I Board of Directors voted to eliminate some arcane and silly rules, such as permitting players to be provided with bagels so long as no cream cheese was also provided.  A full review of the 25 proposals approved on January 19 can be found here

Other highlights of the proposals include eliminating the enforcement of texting and social media outreach by coaches to players and the elimination of rules governing printed materials.  Additionally, student-athletes will now be permitted to receive $300 more than actual and necessary expenses, provided the expenses come from an “otherwise permissible source.” The NCAA called the adoption of these steps a “deregulation.”  NCAA President said that “these new rules represent noteworthy progress toward what can only be described as more common sense rules that allow schools more discretion in decision-making.  This vote by the Board of Directors refocuses our attention on the things that really matter, the core values of intercollegiate athletics.”

The Board of Directors now turns its attention to financial aid and playing and practice rules.