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November 21, 2012

UM player attorney responds to NCAA ultimatum; prominent attorney calls this 'unconscionable'

Some fallout from my Tuesday night post about the ultimatum that the NCAA has made to former UM players (see our last post to get fully up to speed):

### In the wake of numerous former Hurricanes football players receiving an ultimatum from the NCAA, an attorney representing several of those players said Wednesday he has contacted the NCAA to challenge the organization’s position.

The NCAA has threatened it will assume that Nevin Shapiro’s allegations against many of them are true if they do not agree to be interviewed by the NCAA by the end of the week.

Meanwhile, a prominent Miami attorney not involved in the case said those players potentially would have legal grounds for lawsuits if the NCAA follows through on that threat and identifies those players by name when it informs UM of its allegations or punishment.

“It would be catastrophic for the NCAA to do something that outrageous,” said Miami attorney Ben Kuehne, a former president of the Miami-Dade County Bar Association, adding the players would need to prove damages to their reputation.

As we reported in Wednesday’s Herald, the NCAA last week sent a letter to numerous former UM players and their attorneys telling them they have a Friday deadline to speak to the NCAA about the charges that Shapiro has made against them, adding: “If we do not hear back from you or your clients by that time, the staff will consider the non-response as your client’s admission of involvement in NCAA violations.”

The letter was signed by Molly Richman, assistant director of enforcement. But keep in mind that the NCAA’s infractions committee – not the enforcement division – ultimately will decide UM’s penalty, which might not be handed out until next summer. And it remains to be seen if the infractions committee will use information against UM that isn't corroborated beyond Shapiro's claims, phone records and receipts.

That stll must play out; UM would have the right to appeal.

### Miami attorney Bruce Fleisher, who represents several former UM players who received the letter, told my colleague Jay Weaver that he wrote to the NCAA and made clear that his clients are not admitting to any NCAA violations if they don’t respond by the deadline.

“We’re taking a wait and see approach,” Fleisher said, declining to identify his clients because of attorney/client confidentiality. “We’ll have a response for the NCAA once we know what their protocol is.”

### Meanwhile, Kuehne said if former UM players are named in the NCAA’s allegations against UM, based solely on uncorroborated claims by Shapiro, they could win a defamation suit if they prove damage to their reputation.

“If they can’t prove quantifiable damages, they can still win and receive nominal damages,” he said, noting a player could make the case that “any Internet hit where a player’s name is associated with a negative connotation does affect his reputation.”

Prominent former UM players who are deemed to be public figures, such as NFL standouts, would have a great burden of proof because they would need to prove malice, Kuehne said. Others lower-profile former Hurricanes would have a lower burden of proof if they sue the NCAA.

Kuehne said UM could have basis for a lawsuit against the NCAA if “the NCAA takes action based [solely] on the word of a convicted liar” and if UM proves damages, but acknowledged it’s highly unlikely UM would sue the NCAA, because the school is trying to cooperate with the investigation.

But UM can dispute allegations when it goes before the infractions committee, about three months after receiving the notice of allegations.

“It’s scandalous that this is the approach the NCAA has taken,” Kuehne said of the letter. “I’ve never seen a situation like this with the NCAA trying to throw around their weight. Everyone is presumed innocent in our society. For the NCAA to say you have to prove that a liar is liar is unconscionable to our legal underpinnings.”

Kuehne said if the NCAA is bluffing – “and I would question an organization that takes a bluff this far” – then legal action would be premature.

### Meanwhile, John Infante – considered an NCAA compliance expert – told WQAM's Adam Kuperstein and Channing Crowder on Wednesday: “There is only so much Miami can do. Miami has an obligation to kind of cooperate with the investigation. The NCAA is not bound by the Constitution. They are not part of the government….

“There is not the same sort of protection you might see in a criminal courtroom, like a 5th amendment right not to incriminate yourself or Miranda rights to remain silent. Everyone who works or plays in the NCAA says they’re basically giving up that right to participate in college athletics.”

### A UM spokesperson declined to comment on the letter. Acting athletic director Blake James, asked about the letter by WQAM’s Jorge Sedano on James’ weekly radio show, said: “It’s very sensitive…. We want the most accurate information for our investigation. The means of getting to that are not something we’re a part of.”

### Here's the standard the evidence must meet with the Infractions Committee, according to Infante: It  shall base its findings "on information presented to it that it determines to be credible, pursuasive and of a kind in which reasonable prudent persons rely on the conduct of serious affairs." Unlike our legal system, there is no "beyond a reasonable doubt" standard.

### Infante said he doubts UM will get another bowl ban but expects Miami to lose 10 scholarships or so per year for “two to four years,” as well as other recruiting restrictions.