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Bylaw Blog writer weighs in on UM case after NCAA bombshell drops Wednesday

After Wednesday's bombshell fell from the lips of NCAA President Mark Emmert, I reached out to our friend John Infante, a former compliance officer at NCAA Division I schools who runs the Bylaw Blog.

Infante's expertise has been featured on ESPN, Sports Illustrated, USA Today and numerous other media outlets. Keep in mind he isn't privy to the information the NCAA has on Miami. He simply is giving his opinion based on what he's read from published reports and heard today.

Here is the transcript of my 20 minute, one-on-one Q&A with him today:

Q: How does this affect Miami? Most people assume here that the NCAA admitting its made mistakes in the investigation will be positive for Miami. Some think they might even just settle.

"It definitely will be positive. But I think people -- when they think positive -- it's significantly reduced sanctions. To me, that remains to be seen. I know President Emmert said in his press conference that this affected only a small portion of the information in the case. They still have to go through and find out exactly which allegations or specific violations [can't be used]. I don't know how much the NCAA follows the fruit of the [poisonous] tree doctrine -- which basically says if you gather information you wouldn't otherwise have gotten without the use of an improper lead, you can't use that new information either. But anything the NCAA cannot corroborate is helpful for Miami. The fewer student-athletes, the fewer former coaches, the less money, the fewer violations involved the better the case will be [for UM]. The question now is if it is going to better enough to result in a significantly different set of penalties."

Q: A lot of the investigative reports -- including Yahoo!'s -- came from the depositions and information through Shapiro's lawyer Maria Elena Perez. How could the NCAA still have much of a case if you have to wipe out whatever Shapiro's lawyer was involved with?

"Again, you have to wonder if the NCAA could have gotten this another way. It could be they look through their reports -- I don't know who makes this determination the law firm or the NCAA -- but they may say, 'We got this through this [improper] deposition, but then here's the other document we obtained properly that has the same information in it.' So I think you balance it with the idea that they wouldn't try to get subpeona power unless what they got was a game changer or real effective. The extreme [position] that the whole case is going to be gone, the NCAA certainly doesn't sound like the whole case is going to be gone. It sounds like something significant is still there... I think there is a big range -- in the middle -- of what exactly the case was going to look like. Frankly, the other problem is we don't know what the case would have looked like before. We know what Yahoo!'s case would have been and other media outlet's cases would have been. But nobody knows exactly, specifically what the NCAA has been able to corroborate given this abusive power. So, it's tough to know what was knocked out when we aren't even sure what's going to be in there in the first place."

Q: Worst day in NCAA history in terms of them policing themselves?

"As President Emmert said they've had better days. It's certainly up there. It's certainly one of the darkest days in NCAA history in terms of its investigative power. The thing to remember is that in these kind of scandals with the NCAA's investigative process that have come out in the last year -- Todd McNair's defamation case; the Shabazz Muhammad case and now this -- the NCAA has been accused of not following its own rules. One of the responses might be that the NCAA just had some bad seeds and 'we're going to clear out the bad apples that spoil the bunch. We're going to clear out the staff and we're going to have more money to bring in professional investigators and move on from there.' I think the real kind of devastating thing [for the NCAA] is if the courts say you followed procedure to a T and we're still ruling that improper. Then, that calls into question the entire way the NCAA does it's business rather than the idea that investigator or that investigator went rogue. The NCAA is dealing with the same sort of problems athletic departments deal with. There is a violation; now we got to find out what it is and fix it. Did the coach go rogue? Did the investigator go rogue? Did we fail to monitor? I know people are making jokes about it. People have asked me: 'Why would something like this happen?' Coaches are expected to deliver results and they cut corner sometimes. I think in a public case like this --- where the public says 'We had all the facts 15 months ago why isn't Miami punished yet?' -- there is that pressure to get your man, to deliver a result. Well, there would be pressure in that case also for an investigator to cut a corner."

Q: Isn't this unprecedented, the NCAA admitting it made a mistake before a notice of allegations isn't even sent?

"Yes. The leak of info with [UCLA basketball player] Shabazz Muhammad, we found out about that after he had been ruled ineligible and while they were appealing. It was kind of mid-process whereas this is kind of right before [the NOA]. In terms of how it helps Miami, I don't know if procedurally it really does [help] because you would hope that if the NOA went out and then the NCAA [did what it did Wednesday the NOA] would be pulled back and the NCAA would be doing exactly what it is doing now, which is pulling back and seeing what information should be in there and then re-doing the notice of allegations with the info it should have. Really, what it does is it delays [the case], but it doesn't delay it as long [as it could have been] because the NCAA would have had to restart its 90-day timeline. It sounds like the NCAA is fairly confident they can turn this around quickly. They're saying this is a delay of weeks rather than months. In terms of the timing of it, I really don't think its helpful for Miami in terms of what the penalties will be. I think it prevents a really long case from being delayed longer than it is now."

Q: Some people are thinking Miami can pounce here legally and say -- you fired these investigators, you went about this the wrong way, whole thing is a sham -- can Miami do anything here to put pressure on the NCAA that would help solve this case faster and lessen the penalties?

"That's tricky for all the parties involved because you are still down by the cooperative principal. You still have to cooperate with the NCAA's investigation. For Miami [to sue or fight it] that's a very high risk maneuver. Everything in this case has suggested that up until now they're not really putting up a fight. They might be exhausting their options to defend themselves, not digging in their heels to fight it every step of the way. I think the more likely scenario is Miami lets this play out and if the sanctions or the findings that come out of the committee on infractions' final report are excessive, I think that's the point Miami picks up on this and uses [Wednesday's announcement] as grounds for a lawsuit. Miami doesn't look like it's going to fight it like that. They're more likely to appeal anything now. But in terms of suing the NCAA that's always a drastic step. Very few schools have done it. It's generally individuals. As far as the individual coaches, a lot of them are still employed and working. If they had been fired or not working I think they would be much more likely to pounce on this and try to get themselves detached and the case thrown out. But since they're working, I think it's going to be more of a wait and see what their penalties are and if it harms their career. I can almost guarantee there will be a couple lawsuits against the NCAA trying to say this whole thing, none of it is proper."

Q: The NCAA is going to a new enforcement system in August. Can they avoid these similar problems from happening again?

"The new system doesn't really address what happens here. The new system is really more about penalties. It doesn't address how cases get to this point. Depending on the outcome of this external review -- and kudos for the NCAA being up front about it, talking about it publicly let's hope this continues -- I think this leads to a whole new initiative. This is not an isolated issue. This is kind of the third incident. Fool me once shame on you; full me twice shame on me. Three times is a trend. I do think it requires a big change. What that change is it's tough to say. I think the NCAA may take a more serious look at what people are calling them to do which is handing off investigations to third parties or creating an internal affairs unit. If this is a result of public pressure and an underfunded, undermanned enforcement staff, I'm not necessarily sure those things will fix the problem long term other than creating the same type of cycle where schools get caught, clean things up, fall off a little bit and break rules again. The NCAA isn't in a position or the public standing to keep things the same way. They have to come up with something to address this problem long term to sort of regain any public trust."

Q: Gut feeling in the end: Does Miami gets off easier?

"At this point I would be shocked about another post-season ban. I also would be surprised to see crippling scholarship penalties. I do think they will be let off a little easier than they would have been. The biggest challenge now for the NCAA is to explain [to other school] in a way that Miami didn't get a break on a technicality. That won't sit well with people either."

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