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January 23, 2013In a move that threatens its entire inquiry in the Nevin Shapiro melodrama with the University of Miami, the NCAA national office has uncovered an issue of improper conduct within its enforcement program that occurred during the UM investigation.
Former NCAA enforcement staff members worked with Nevin Shapiro's attorneys to improperly obtain information for the purposes of the NCAA investigation through a bankruptcy proceeding that did not involve the NCAA.
As it does not have subpoena power, the NCAA does not have the authority to compel testimony through procedures outside of its enforcement program. Through bankruptcy proceedings, the enforcement staff gained information for the investigation that would not have been accessible otherwise.
As it relates to the Miami investigation, the NCAA will not move forward with a Notice of Allegations until all the facts surrounding this issue are known.
"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," UM President Donna Shalala said. "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."
Sources have told CaneSport that attorneys representing Miami and other individuals involved in the Shapiro/NCAA case are now attempting to throw out portions of information and testimony that had been part of the case. The sources have also told CaneSport that these improprieties came to the attention of the NCAA in recent days after it had already begun the process of notifying individuals that they would have charges contained in the Notice of Allegations.
This information, much of it believed to be part of a deposition with former Miami equipment manager Sean "Pee Wee" Allen, has thrown a major monkey wrench into the entire Miami / NCAA affair.
Sources have speculated to CaneSport that there is the growing liklihood that the case will never reach the NCAA Infractions Committee. NCAA President Mark Emmert said he has promised UM that there will be a quick resolution. That resolution could evolve into a declaration that the penalties Miami has self imposed will be sufficient. Anything else might delay the situation many more months.
"I have been vocal in the past regarding the need for integrity by NCAA member schools, athletics administrators, coaches, and student-athletes," said NCAA President Mark Emmert. "That same commitment to integrity applies to all of us in the NCAA national office."
Emmert has commissioned an external review of the enforcement program. The review will include a thorough investigation into the current issue as well as the overall enforcement environment, to ensure operation of the program is consistent with the essential principles of integrity and accountability.
The NCAA has retained Kenneth L. Wainstein, a partner with the law firm Cadwalader, Wickersham & Taft LLP to conduct this investigation. Wainstein specializes in corporate internal investigations and civil and criminal enforcement proceedings. He 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.
"Upon receipt of Mr. Wainstein's findings, I will take further steps as needed to assure accountability for any improper conduct," Emmert said.
"The NCAA Executive Committee expects the enforcement program to operate within approved procedures and with the highest integrity. Although we are deeply disappointed in this turn of events, we strongly support the actions President Emmert is taking to address the problem," said Lou Anna K. Simon, executive committee chair and Michigan State University president.
"To say the least, I am angered and saddened by this situation. Trust and credibility are essential to our regulatory tasks," said Emmert. "My intent is to ensure our investigatory functions operate with integrity and are fair and consistent with our member schools, athletics staff and most importantly our student-athletes," he added.
These revelations combined with isses the NCAA is having with other cases have created a cloud over NCAA Enforement offices.
Other issues pending include a California case filed by former Southern Cal assistant football coach Todd McNair, who said the NCAA was "malicious" in its investigation into his role in the benefits scandal surrounding Heisman Trophy winner Reggie Bush. Los Angeles Superior Court Judge Frederick Shaller called the NCAA's actions "over the top."
Earlier this month, the NCAA was sued by Pennsylvania Gov. Thomas W. Corbett, who claimed the sports governing body overstepped its authority and "piled on" when it penalized Penn State for the Jerry Sandusky scandal last summer. The governor asked a federal judge to throw out the sanctions, arguing that the measures -- which include a four-year bowl ban and $60 million fine -- have harmed students, business owners and others who had nothing to do with Sandusky's crimes.