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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.

Comments

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valdis moseley

F#%k the NCAA! The attorneys of former cane player are correctly going on the offensive by putting the NCAA on notice that if they shoot at Miami, they will fire back. F#%k the NCAA!

rboud

The NCAA will hammer UM pretty good and because of their own arrogance, they will hurt themselves as well. This time they went too far and they will take a significant public relations hit when this story is circulated nationally. They'll let Ohio State use 5 ineligible players in a bowl game, but don't have the integrity to follow a rule that is clearly stated and one they are bound by. You can only abuse your power so much before your lack of credibility is exposed for all to see.

Ivan

They should investigate Nevin's other claims about SEC schools buying recruits and making it pointless for him to try. Don't scratch NCAA, you may not like what all of these former players have to say about recruiting practices of other big time programs as wel!

Len

A complaint has been filed with the Florida Attorney General requesting an investigation of possible extortion by the NCAA. A similar complaint is also being filed in Indiana, where the NCAA is headquartered.

Ms. Molly Richman, a graduate of the University of Florida, is the NCAA attorney that sent the letters. If either AG investigates, felony charges against Richman and NCAA officials are possible.

redsky

A Happy Thanksgiving to all!!!

UMcanes

The NCAA is far dirtier than UM or any other school could EVER be!

They just screwed themselves by trying to bully UM.

Give them enough rope, and they will hand themselves.

I hope UM counter-sues the NCAA and sets a precident that not everything that the NCAA says, or does, is RIGHT OR ETCHED IN STONE!

valdis moseley

Judge says NCAA 'malicious' in USC investigation! The Attorneys of Former players should take the NCAA to task also.

Reality

The NCAA is a voluntary membership. Any member is welcome to leave at any time if they choose to do so. At that time, they would be relegated to NAIA status. This situation is no different than a civil court matter. If the respondent fails to appear, the court will rule in favor of the plaintiff, in this case, the NCAA. The NCAA is giving these former players the opportunity to refute allegations compiled against them in evidentiary findings, testimony from federal proceedings and interviews with former administrators, coaches and players who were granted immunity and willfully explained transgressions transpired in Coral Gables over the past 14+ years. There are some who feel the NCAA will make an example in this case. "Lack of Institutional Control" is Miami's biggest concern if testimony gathered from disgruntled former employees now employed by NCAA member institutions and former coaches who were granted immunity is proven. Crippling sanctions are in play here up to and including the death penality. In either case, this situation could not occur at a worse time for UM. Conference realingment is about set a furious pace and the ACC could lose as many as 12 of its 14 members leaving Miami and Wake Forest in a bind and Miami doing so with a seriously devalued brand.

valdis moseley

In others words the NCAA has nothing! Ha Ha, too bad. Still take them to task!

mike

Len, if indeed a complaint was made with the attorneys general of FL and IN, which I doubt, there are some there are some hurdles that complaint has to overcome, first and foremost what the NCAA has done isn't extortion or blackmail, what the NCAA is doing is try to compel witnesses to to depose. This is done in civil procedures every day. If you file suit in a corporate matter and there are witnesses, you can compel them to be deposed. Second I'm not sure who filed the complaint, but if it's not the U or the players involved, they have no standing. So good luck with that. I do think the NCAA is acting in a way that makes them look like they come without clean hands. As far as the ACC losing 12 members, I'm not sure about that, there's a $50 million dollar penalty for member to be able to leave.

mike

Seems to me NCAA doesn't want to impose sanctions based solely on the accusations of a convicted felon, ponzi scheme liar who stole a billion dollars from people. They are calling everyone's bluff...All should just tell them to pound sand.

Georgia Cane

The NCAA is trying to justify a two year investigation that has gone no where. The lastest move mentioned above is a desperate move indeed. Regardless, of the outcome the NCAA will lose it's creditbility. UM will pay, no question about that. I think after this the NCAA will experience a lesson learned "Don't beleive a convict".

Jo jo

Can t believe a UF law graduate would be so stupid to have the letters originate from her/knowing it s a rather biased attitude she would maintain.Too funny.She really is a moron.The point is true though..that the NCAA is not/doesn t represent a normal court of American law.It doesn t need/abide by defensive protection legally for those it seeks to punish.However......I do feel the NCAA is perhaps taking their power too seriously this time as there can still be legal consequences that they may think they re removed from/not applicable to them.When you play the attorney game.........a "settlement" often occurs because both sides can potentially lose in ways.....not yet imagined.

Sharkdaddy

If the Gestapo (NCAA) imposes extreme & unfair penalties against Miami, UM should hire the top investigators and expose all the other programs across that country that have committed violations. Take that evidence to the media and demand that the NCAA impose the same penalties on those schools. There would be 40-60 institutions facing bowl bands and penalties. If the NCAA does not act against those violators, than Miami could sue their pants off and bring down that Gestapo. Those dirty s.o.b.'s pick & choose who they want to go after. What a corrupt and dirty organization, they are gangsters with degrees.

billb

As we saw with the SMU case, the only schools the NCAA can bully like this are private institutions with limited budgets and a small alumni base. They will never go after schools like the huge state institutions in the $EC.

Jo jo

It is disheartening to note that the late Paul Dee was the NCAA President in charge of leading infractions investigations when USC was found guilty.Dee......with all due respect...was exceedingly harsh on Reggie Bush s involvement and USC.He said they needed to pay a heavy price.How ironic...now Miami is in the same position.Just sayin.

UMike

The NCAA is finally being exposed for who they THINK THEY ARE...some God from above.

Fact is, the NCAA needs to be investigated, as they are far dirtier than any school could ever be.

What kind of organization has a "free pass" from being investigated by the government of the U.S...?

They're always had it HARD for UM...when this whole thing started, I found it totally laughable that they were even LISTENING TO A CONVICTED PONZI-SCHEMER who PUBLICLY VOWED TO "GET BACK AT UM" - this whole thing is a joke...I think the NCAA is grasping at straws because a restaurant or jewelry store receipt doesn't say WHO DINNER or JEWELRY WAS BOUGHT FOR......DUH!

F**K THE NCAA...how is it that they are located in the state of Indiana, and Notre Dame is never investigated....PLLLLLLLLLLLLLLLLLEASE!!

NC Cane

2 Questions

1. the assitant coaches and head coach (Haith) and AD (Holcutt) that are still employed with colleges will anything happen to them? I heard the evidence against them is damning

2. 2 bowl bans and 11 players suspended last year paid all money back. the university has given all money. What else other than scholarship reduction should happen?

Will be in Durham on Saturday

Supercane.

Reality,
The reality is you don't know what you are talking about. Ask ESPN the top ten ratings they ever had, and Miami is in there at least 3 times. So Miami gets the death penalty and Penn State doesn't? No what they get is to play on ESPN every weekend.

Terry King

FOR A WHILE I WAS DEEPLY CONCERN ABOUT WHAT THE NCAA ACTUALLY HAD ON THE U! NOW IT SEEMS LIKE THEY ARE BASING THERE INVESTIGATION ON A CONVICTED LIAR WITH AN AXE TO GRIND! C'MOM MAN! WHY THREATEN TO PROVE A LIAR WRONG AFTER ALL THESE MONTHS OF INVESTIGATING? YOU MEAN THAT'S IT! THE SCHOOL HAS SUSPENDED PLAYERS, PAID BACK MONEY, AND SELF-IMPOSED 2 BOWL BANDS! IF THEIR IS SO MUCH MORE PENALTIES TO IMPOSE THAN SURELY YOU WOULD HAVE MORE EVIDENCE TO SUPPORT YOUR NEED TO ENFORCE AND NOT NEED OR CARE IF FORMER PLAYERS INTERVIEWED OR NOT. THE FACT IS THAT ONCE THIS INVESTIGATION BECOMES FINAL AND OF PUBLIC RECORD THERE FACTS MUST BE SUPPORTED WITH EVIDENCE AND NOT JUST BY WORDS OF A CONVICTED FELON. I HOPE THE PLAYERS AND UNIVERSITY SUES NCAA IF PROPER AND FAIR CONDULT IS NOT DONE IN THIS CASE. FINE US GIVE US SCHOLARSHIP DEDUCTIONS AND LEAVE US THE F..K ALONE! GO CANES BEAT DUKE THIS YEAR! WIN ACC NEXT YEAR AND THE NATIONAL CHAMPIONSHIP IN 2 YEARS! TAKE THAT NCAA!

clark

I think in the long run it will be worse than the U president and acting AD think. We have voluntary not gone to two bowls, and one a chance to play for the conference championship and AG now is voluntairly going to reduce his scholarships yet the NCAA is now trying to strong-arm the former players. If they get any kind of sinignifant punishment there should be a boycott by the entire FBS-Penn State nothing, Ohio State one year to not be allowed to play in a bowl. This is a poor example of a fair and and unbiased approach to college athletics

Not for nothing

Penn State nothing?

Penn State $60M fine, four year bowl ban, 112 vacated wins, 20 scholarships lost every year for 4 years...

Reality

Supercane, the NCAA was imposing the death penalty on Penn State for four years before PSU president Rodney Erickson successfully negotiated the penalties in place. Erickson argued the economic effect of the death penalty on the State College community would be he crippling and the NCAA relented. ESPN ratings have nothing to do with how the NCAA administers punishment for rule breakers.In fact, the NCAA doesn't issue TV bans any longer because of the effect on the rule-breakers opponents. Now, three Miami games are not ranked among the top-ten all-time games. Those are numbers thrown out by fans to make them feel warm and fuzzy about themselves. In fact, Miami's game with Boston College last season was the lowest-rated broadcast on ABC-ESPN. The SEC dominates the college football ratings landscape. The ACC ratings, which Miami is a part of, are the reason their media rights deals lag so far behind. The ACC has maxed-out their media revenue generating capability and 12 of the current members will find new homes in the Big 10, Big 12 and SEC, leaving Miami and Wake Forest joining CUSA. The paradigm has shifted and could not come at a worse time for Miami.

lasvegasman

REALITY-did you have trouble with classes in high school? You are clueless and too impressed with your limited knowledge of the world.

dirty bird

"Lack of Institutional Control", repeat offenders.

"Lack of Institutional Control", repeat offenders.

"Lack of Institutional Control", repeat offenders.

"Lack of Institutional Control", repeat offenders.

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