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February 18, 2013Information that the NCAA collected as part of the Miami investigation through depositions performed as part of a former booster's bankruptcy proceedings will not be part of the case against the Hurricanes, the NCAA said Monday as it released the findings of an external report into the wrongdoings in its investigation of Miami.
The report confirmed that select NCAA enforcement staff acted contrary to internal protocols, legal counsel and the membership's understanding about the limits of its investigative powers in the University of Miami case.
Kenneth L. Wainstein, a partner with the law firm of Cadwalader, Wickersham & Taft LLP, conducted the review at the direction of NCAA President Mark Emmert following his January 23 announcement of conduct issues within the enforcement program.
Based on the results, the NCAA has fired Vice President of Enforcement Julie Roe Lach. Multiple sources familiar with the external investigation told Yahoo Sports that Roe Lach's dismissal stems from her approving an improper financial relationship between an NCAA investigator and an attorney of former Miami booster Nevin Shapiro.
Theissue was that the attorney for former booster and convicted Ponzi scheme architect Nevin Shapiro was used to improperly obtain information.
But the NCAA said the case against Miami will proceed ''with information properly obtained by the enforcement staff.''
"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," said Emmert. "As I stated before, we are committed to making the necessary improvements to our enforcement processes and ensuring our actions are consistent with our own values and member expectations."
UM President Donna Shalala released the following statement:
"The University takes full responsibility for the conduct of its employees and student-athletes. Where the evidence of NCAA violations has been substantiated, we have self-imposed appropriate sanctions, including unilaterally eliminating once-in-a-lifetime opportunities for our students and coaches over the past two years, and disciplining and withholding players from competition.
"We believe strongly in the principles and values of fairness and due process. However, we have been wronged in this investigation, and we believe that this process must come to a swift resolution, which includes no additional punitive measures beyond those already self-imposed.
In September 2010-two and a half years ago-the University of Miami advised the NCAA of allegations made by a convicted felon against former players and, at that time, we pledged our full cooperation with any investigation into the matter. One year later, in August 2011, when the NCAA's investigation into alleged rules violations was made public, I pledged we would 'vigorously pursue the truth, wherever that path may lead' and insisted upon 'complete, honest, and transparent cooperation with the NCAA from our staff and students.'
The University of Miami has lived up to those promises, but sadly the NCAA has not lived up to their own core principles. The lengthy and already flawed investigation has demonstrated a disappointing pattern of unprofessional and unethical behavior. By the NCAA leadership's own admission, the University of Miami has suffered from inappropriate practices by NCAA staff. There have also been damaging leaks to the media of unproven charges. Regardless of where blame lies internally with the NCAA, even one individual, one act, one instance of malfeasance both taints the entire process and breaches the public's trust.
There must be a strong sense of urgency to bring this to closure. Our dedicated staff and coaches, our outstanding student-athletes, and our supporters deserve nothing less." - Donna E. Shalala, University of Miami President
The NCAA review focused specifically on the enforcement staff's use of outside counsel and the federal bankruptcy process to determine whether staff took inappropriate steps in their efforts to secure testimony and records, and if so, determine how that happened.
The external review found select enforcement staff members:
• Knowingly circumvented legal advice to engage Nevin Shapiro's criminal defense attorney.
• Violated the internal NCAA policy of legal counsel only being retained and monitored by the legal staff.
• Paid insufficient attention to the concern that engaging the criminal defense attorney could constitute an inappropriate manipulation of the bankruptcy process.
• Did not sufficiently consider the membership's understanding about the limits of the enforcement staff's investigative powers.
• Did not violate a specific bylaw or law.
Additionally, the report found:
• Enforcement leadership exercised insufficient oversight of the engagement of the criminal defense attorney.
• The legal and enforcement staffs took appropriate action to rectify the situation once they realized select enforcement staff members had engaged the criminal defense attorney.
The information gained through the bankruptcy proceedings or other evidence derived from that process will not be used in the Miami investigative record. The NCAA plans to proceed with the case with information properly obtained by the enforcement staff.
"This report is an important first step in responding to the issue at hand," said Wainstein. "For an organization with an oversight function like the NCAA, its credibility and reputation for fair-dealing are always more important than its ability to prove the allegations in any particular case. This episode is a reminder of the problems that arise when investigators resort to expedient but questionable tactics."
"My responsibility is to be certain that the membership has confidence in all of our processes across the national office," said Emmert.
"To that end, I have appointed Jonathan Duncan, a law partner with a focus on education and sports law at Spencer, Fane, Britt & Browne LLP, to serve as interim vice president of enforcement. He has worked on NCAA issues for 15 years from multiple perspectives, including service to both the Enforcement and Rules Working Groups," added Emmert.
Additionally, Duncan and Spencer Fane will work with Cadwalader to review the regulatory environment from the national office and membership perspectives. To gain member insights, the review will include discussions with schools that recently engaged in the enforcement process. It will comprise a broader policy, practice and procedural review of how NCAA regulatory activities are managed and conducted.
The final phase of the review will engage the membership to probe broader, philosophical questions about the nature of the regulatory side, including the desired outcome of regulation and to what level the membership wants to be held accountable.
The review will include enforcement, eligibility, reinstatement and the waiver processes.
"Integrity is vital to the Association's regulatory functions," said Lou Anna K. Simon, executive committee chair and Michigan State University president. "Our expectation is that the NCAA uses this review as a launching point for meaningful change. Moving forward, NCAA member schools must engage in a healthy debate about our desired outcomes and expectations of the Association's regulatory functions."