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Shalala lashes out, says UM deserves no more penalty; Emmert says no settlement; NCAA pays Nevin Shapiro; live blog of UM case

More news from the UM/NCAA saga today:

UM president Donna Shalala came out swinging tonight, calling on the NCAA to end its investigation into the UM case and saying the Hurricanes deserve no more penalties. UM will be very aggressive in fighting this. Scroll down to the bold section to see her statement.

(Quick aside: Two sources close to Mario Cristobal confirmed this afternoon he's leaving the UM staff, after less than two months on the job, to take the job as Alabama's offensive line coach. More on that below.)

Here's a synopsis of the UM/NCAA story today, plus an astounding nugget about the NCAA essentially paying Nevin Shapiro:

The NCAA says it acted improperly in the UM case, but the case will go forward to the infractions committee and the NCAA will not settle with UM as it did in the Penn State case, where the case did not go to infractions. That's disappointing news to UM, with multiple UM people saying the school had hoped for a quick settlement to put this behind them.

The downside is this could take many more months unless the process is somehow expedited, which would be very unusual.

While 20 percent of the information against UM has been thrown out, NCAA president Mark Emmert said there's still plenty of evidence to go forward with this case.

And there's this: The NCAA revealed that it purchased a disposable mobile phone and paid for Nevin Shapiro's use of the prison phone system. The NCAA expended $8200 to fund communications with Shapiro, including the transfer of $4500 to the prison commissary account from which Shapiro pays for his communication. That allowed the NCAA to call Shapiro repeatedly during the investigation. So the NCAA paid not only Shapiro's attorney, but Shapiro. Charming.

Also, Maria Elena Perez, Shapiro's attorney, billed the NCAA $57,115 for her work from October 2011 to July 2012. The NCAA expected her bill to be around $15,000. Perez was paid at least $19,609.

UM president Donna Shalala just came out with a very strong statement, calling on the NCAA to end this investigation and not to penalize UM further.

“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.

## Cristobal is leaving because he's getting a big raise (to $500,000) and values the chance to work for Nick Saban. And no, UM isn't happy about him bolting after less than two months on the job. Hard to ever see UM welcoming him back again.

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Meanwhile, here's a minute-by-minute update during the NCAA's 2 p.m. news conference.

Below the live comments is the press release that the NCAA issued at 1:50 p.m., which detailed its findings in its investigation into how it handled the UM case.

Remember, UM won't learn its punishment today. It should get its notice of allegations very, very soon, perhaps this week. NCAA President Mark Emmert wouldn't say.

Julie Roe Lach, the NCAA's vice president of enforcement, has been fired because of her role in the UM case. But Emmert refused to discuss her.

Here's how the call unfolded:

Outside counsel Kenneth Wainstein said he was asked by the NCAA to investigate whether the enforcement staff acted inappropriately in the UM case "by using the subpoena power of the bankruptcy case" to get witnesses to talk (Sean Allen, Michael Huyghue) who otherwise might not have. 

### Wainstein said he interviewed 22 people, "including all the relevant NCAA staff, the legal staff, and a number of third parties outside the NCAA, such as former investigators, and Nevin Shapiro." (But oddly, Sean Allen was not interviewed.) 

### Wainstein then reiterated what the news release says below. He said Shapiro's attorney, Maria Elena Perez, said she could use deposition subpoena authority for the bankruptcy process "to compel witnesses to come in and be deposed and the NCAA could propose questions... to get information."

Ameen Najjar, the investigator on the UM case who was fired by the NCAA in May, took the proposal to NCAA vice president of enforcement Julie Lach and "they then secured financial approval to pay Perez's fees, and also took it to the legal staff to get it vetted and approved," Wainstein said.

### The legal staff advised enforcement "not to do this," Wainstein said. The advice not to do this was reiterated to Najjar and the enforcement staff. But Najjar disobeyed his bosses and "went forward with it in order to pay Ms. Perez to secure depositions," Wainstein said.

Wainstein said the fact Najjar paid Perez wasn't known by the NCAA's top administration until after Najjar was fired. Mark Emmert has refused to say why Najjar was fired.

### Wainstein said "no law" in the NCAA's bylaws were violated, but his subsequent comments seem to contradict that. But he said the enforcement staff "very clearly disregarded" the legal staff's instructions not to do this. "The practice and policy of the NCAA is that only the legal staff of the NCAA can retain outside counsel. The enforcement staff violated that in this case," Wainstein said.

### Wainstein said he was also trying to determine: "Was there anything about this that was a manipulation or abuse of the bankruptcy process?... While we did not find any law that was violated, the lead investigator [Najjar] and [two enforcement supervisors] failed to appreciate the concern that this could be perceived as [abuse] of the bankruptcy process."

### Wainstein said in the NCAA's defense, "the NCAA undertook to make sure -- before we got involved -- that they went through that record with a fine tooth comb and took out any fact, any allegation that was derived in any way from the enforcement staff's work with Shapiro's attorney." The investigation is now "cleaned of tainted information. We clearly reviewed every assertion in the record" and determined all of the "tainted information" has been removed.

### NCAA President Mark Emmert said he discussed these matters with the executive committee and board of directors "and they have copies of the final report." Emmert said: "I want to make sure we stayed focused on how it happened and how to avoid similar situations in the future.... It's of paramount importance we follow our own rules."

Reporters still haven't been given a chance to ask questions.

### Emmert said: "In the UM case, we have had now three reviews of the information involved to make sure none of the information continued in the UM investigation resulted from the depositions conducted. We are going to move forward with the Miami investigation. That will move through enforcement staff and committee of infractions as they would during their normal course of business."

### Those Emmert comments suggests UM won't get a settlement, which became even clearer later in the call. That's bad news, because that means this process could take many, many more months. As we noted yesterday, nine months passed between the time UCF got its notice of allegations and then got its penalties. UCF appealed its football bowl ban last September and is still awaiting a rule on that -- 15 1/2 months after it got its allegations.

### Questions have started.

### Wainstein said Lach asked for permission from NCAA COO Jim Isch to get a green-light to pay Perez, who was asking for up to $20,000. Lach got permission from Isch "to approve the funding" and then reached out to the legal staff, which told Lach not to do this. But Lach did it anyway "contrary to legal advice."

### Emmert, asked how much personal responsibility he feels: "This is an outcome nobody wants to see on their watch. It's an embarrassment to the association and its staff. This is not a good situation at all."

### Asked how much information was thrown out of the case, Emmert said: "We can't get into details of a case. The information that was expunged was anything that came from the depositions of the two individuals or was related to them. It's inappropriate to put it in percentages."

But Wainstein said "20 percent of the allegations were taken out."

### Wainstein defended the NCAA in some ways, saying: "The NCAA went overboard to extract things if there was a close call." He said 13 interviews and portions of 12 others were thrown out.

### Asked how he feels about several enforcement people being fired, Emmert said he wouldn't comment on individual cases, saying only: "We need to make sure we have the right people in place to provide leadership." He said if the NCAA's two boards believe he should be disciplined, he would accept that discipline.

### Emmert said: "I wouldn't characterize this as a case of corruption. This was a case of bad judgment and bad decisions made."

### Emmert said he "would not set a timeline" on when UM will get its notice of allegations but the enforcement committee "is moving forward with dispatch."

### When will the Miami ruling come down?  Emmert said "everyone is trying to get it done as quickly as possible."

Emmert said: "It will be up to the committee of infractions who will pass judgment on this to determine the validity of the arguments put in front of them. The intention is to move forward with this case. There's still a lot of information available that is not tainted by this."

"There are many parties at risk beyond the university. It will be up to the committee on infractions to make those judgment calls."

### Emmert was asked again about the letter threatening former UM players that Shapiro's claims against them would be believed if they didn't agree to be interviewed. 

Emmert said Monday: "That was not a point of the discussion of this review." Keep in mind that Emmert said on the January conference call that this threat WOULD be investigated. Absurd.

 

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Here's the NCAA news release:

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, according to the external Enforcement Review Report.

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.

Related documents

Download the final report

Download the supporting exhibits

The release of this Report does not waive the attorney-client privilege with regard to any other document or communication concerning this, or any other, matter.  The NCAA will assert the attorney-client privilege to the extent permitted by law. Exhibit redactions have been made to fulfill confidentiality and privacy obligations for information that is otherwise not generally available or accessible by the public.  None of the redacted information is material to the subject of the Report.

“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.”

This 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.”

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Couple other things: Mike Mayock said today the best value for the Dolphins at No. 12 might be an offensive lineman. Oy!.... Mayock compares Cal receiver Keenan Allen - a first-round Dolphins possibility - to Anquan Boldin..... Joe Zagacki, the voice of UM on radio, makes a cameo on CBS' Hawaii 5-0 at 10 tonight, describing a Peyton Manning touchdown.

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