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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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Travicane

Saw this on another site. It's an excerpt from the FL statutes and seems very applicable in this situation.

Florida Statutes 836.05 - Threats; extortionWhoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

So what do you guys think about that? Also, Reality, he was referring to the all time most watched TV ratings, not average ratings on a week by week basis. Yes Miami is up there a bunch of times, usually because of the old UM/FSU rivaliry games. WIDE RIGHT!!!!! Suckerrrrrs.

In this case I think the NCAA is pushing their luck and it seems they do not have much to go on. I have never heard of such a blatant and tactless threat by an investigating organization. I doubt this will push the former players to come forward and say anything and I seriously doubt the NCAA will levy a decision based on the fact that people did not want to come forward when they have nothing to gain from doing so. It will be interesting to see what the NCAA does with all of this, but I don't think the "death penalty" will even be considered without SUBSTANTIAL evidence that goes even beyond what has already been alleged. The bottom line if the school and the staff are doing everything they can to cooperate with the NCAA and they are even self-imposing multiple punishments in an attempt to get past this whole debocle. I wouldnt be surprised if the NCAA ends up only pulling some scholarships away simply because there likely will not be much to show for this 20 months investigation.

Only time will tell...

russ

Since when do US citizens give up their 5th amendement constitutional rights to play college football?

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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.

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