Ignore the explicit language in the rap song attached; in fact, turn the sound off – the sheer piercing nature of the video (particularly the calm, bemused look on his face) makes the rap seem banal, placid, contrived.
Ignore the explicit language in the rap song attached; in fact, turn the sound off – the sheer piercing nature of the video (particularly the calm, bemused look on his face) makes the rap seem banal, placid, contrived.
The recent rape convictions of two Steubenville High School football players have gotten much world-wide attention. We’ve gotten detailed insight, through cell-phone related electronic records of the video, text, and email kind – with a level of accuracy and contemporaneity which would have been unheard of a decade ago – into not just the dark side of high school football players, but of the adolescent American male.
It’s an unnerving, tawdry and at times disgusting display of brutish, narcissistic behavior, confirming that we are not fallen angels, but risen apes.
The record is compelling, eye-opening, but – more importantly – instructive. That record, and the story behind it, should be taught in every high school. High school males need to confront the ugly portrait but also see the light of independent, decent-hearted judgment which penetrated the events through the texting of one male named McGehee, who happened to have been a best friend of one of the two convicted teenagers.
McGehee saw the ricochet of texts and videos but, unlike all other males apparently involved in, or aware of the events, became incensed. So incensed that, upon finding his cell phone battery exhausted, borrowed a friend’s, and texted his best friend, to tell him (in more direct, profane language): you’re nuts, this is revolting, you need to stop now – “I’m going to strangle you.”
That’s it, right there. Extraordinary, pure, volitional ‘right conduct.” The kind that young men everywhere need to study – to learn to similarly think for themselves and to call out evil when they see it.
Dennis Dodd, of CBS, for whom I have respect because he is usually both aggressive and skeptical, has nonetheless just jumped off a high cliff without first looking down. (See his article, ‘New Enforcement Cop Duncan Faces Battles Inside, Outside NCAA Walls’)
In his review today of the NCAA Enforcement staff mess — a meltdown, it appears, where staffers meeting for the first time late last week with new Enforcement Chief Duncan (who replaced the unjustly vilified Ms. Lach) were found variously sobbing, wailing, or complaining – Dennis remarks that,
“To the outside world, paying an outside attorney (Elena Perez) to obtain information otherwise not attainable in the Miami case seems obviously unethical.”
If this was so obvious, then Ken Wainstein of Cadwalader, commissioned by Emmert to conduct an “objective” outside review, missed the obvious. Wainstein found no violations of any written statute, bylaw, or rule. Period. Nor did he find any violation of any specific ethical rule or precept. So it’s still a mystery, rather than being anywhere even close to obvious. Attorney Wainstein was supposed to have given all of us an unvarnished look, from the “outside world” as to what exactly was right or wrong about the NCAA investigation of the ‘U.’
Wainstein found nothing. Zippo. Zero. And in fact, Wainstein made up out of thin air the just plain silly notion that the NCAA investigator in the UMiami case violated “prudential concerns“, and the “expectations” of NCAA members. This is akin to announcing that somebody failed to open the door for the female as she entered, or that a staffer used his ‘salad’ fork on the ‘entree’ course. It’s nonsense, and the kind of frivolous, fabricated alleged violation which ought not concern serious people.
But a substantial majority of the sporting press has jumped off this same lemming-cliff with Dennis Dodd: they all actually think that something heinous was done by the NCAA staff. According to what we know so far, nothing wrong was done; Attorney Wainstein appears to have …. intuited some Grand Consensus-in-that-NCAA-Member-Sky about what all these many members all very surely believe as to what is “prudent.”
It’s poppycock, and people like Dennis Dodd need to grab an ammonia-drenched hanky, and get ahold of themselves. Wainstein got hired by Emmert to give him cover; Wainstein showed a complete lack of moral authority or dedication to truth, and gave Emmert what he wanted.
Here’s the appropriate response to the Wainstein/Cadwalader evaluation: Bullshit.com.
As far as we now know, no wrongdoing was done by the NCAA investigative staff in hiring Attorney Perez. (Other than, as I pointed out in my earlier post, ‘The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy’, 2/21/13), Investigator Najjir having countermanded an internal order from a superior.)
And, as I will show in my next post, this voodoo claim of some Investigator wrong pales alongside a developing, but entirely ignored – and much more serious — set of violations involving the NCAA and its’ member schools. Stay tuned.
I think Penn State may have been violating Senator Mitchell’s First Quarterly “Integrity Monitor” report, dated November 30, 2012, and the new Penn State policy AD 39 (adopted in June 2012), which Mitchell endorsed in that Report.
Mitchell’s Report states, at page 31, that on June 7, 2012, the University revised its’ Policy AD 39 pertaining to “Minors Involved in University-Sponsored Programs or Programs Held at the University and/or Housed in University Facilities.”
It goes without saying that PSU recruits high school players who are “minors.” Pennsylvania defines a minor as anyone under the age of 18. Some other states (where Penn State actively recruits), define the age of majority as up to 21. Any of those minors recruited by Penn State are subject to – and should be protected by -, this new AD 39 Policy which was given Senator Mitchell’s stamp of approval last November.
And AD 39 requires that
“at least two Authorized Adults … be present during all interactions and activities activities with minors.”
This raises the question as to whether, since June 2012 when this new policy was adopted, PSU has had two adults present at all all times with minor recruits, but also (assuming two adults have been present as required), whether those two adults have been “Authorized” as strictly defined by the new Policy AD 39.
The common practice at big-time campuses like Penn State’s is for the coaching staff to “assign” the responsibility for “hosting” a recruit to one or two existing players, who act as “chaperones” for that recruit.
Under the terms of new PSU Policy AD 39, any such current Penn State player who “hosts” or “chaperones” such a recruit who is a minor must qualify as an “Authorized Adult” as defined by that new policy.
(Adults who must be properly “Authorized” are defined as “Individuals, age 18 or over, paid or unpaid, who interact with, supervise, chaperone, or otherwise oversee minors in program activities, or recreational, and/or residential facilities. This includes but is not limited to faculty, staff, volunteers, graduate and undergraduate students, interns, employees of temporary employment agencies, and independent contractors/consultants. The Authorized Adults’ roles may include positions as counselors, chaperones, coaches, instructors, etc.”)
And the required “Authorization” for such adults is described in the Mitchell First Quarterly Report as follows:
“Under Policy AD39, ‘Authorized Adults’ participating in a program involving minors must attend annual, mandatory training on protecting minors from abusive treatment and on mandated reporting requirements for suspicions of child abuse. The activities of Authorized Adults are carefully restricted.”
The Mitchell First Quarterly Report also states that, amongst the changes (in required training for adults in supervision of minors) are included “background check guidelines for authorized adults; mandated reporter training obligations; self-disclosure of arrests or convictions; requirements for two or more authorized adults to be present at all times during programs, and guidelines related to communication with and transportation of monitors.”
The language here is somewhat ambiguous, but suggests that “volunteers” such as those current athletes who are assigned to chaperone recruits on “official” visits, are covered by the policy and required to have both the background check and the appropriate training, to achieve “Authorized Adult” status.
So that, if “chaperones” for PSU recruits who are still minors have not had that mandatory annual training, then Penn State has been in violation of this new policy.
The new policy also states that an Authorized Adult “may not enter a minor’s room, bathroom, or similar area without another Authorized Adult present,” and that “Authorized Adults must stay in separate accommodations.”
It is not clear that Penn State has changed its’ recruiting practices to comply with these rather rigorous — and unique in the industry — standards for on-campus chaperones for minor recruits.
It’s also worth noting that an area of ambiguity is whether this “Two Adults at All Times” policy applies when Coaches are out on the road recruiting, in recruit’s homes and home towns, or at 7-on-7, AAU, and other tournaments and gatherings where top recruits are visited. My reading of the Policy is that AD 39 does, in fact, apply “out on the road”, but I have no information as to whether PSU athletics has taken steps to comply.
By undertaking this entire analysis, I am not suggesting that I support new PSU policy AD 39. I don’t.
And I am no fan of big-time college recruiting. It’s pimping. Grown men, sweet-talking minors. Gullible, often under-educated minors. Grown men, with vested, strong, compelling self-and-institutional interests – which might be in conflict with the interests of young men who are minors — making promises, vague or explicit, which are neither enforceable or, oftentimes, kept. It’s all just plain Creepy. That creepiness is only one reason why I favor the free-market employment recruiting process, which revolves around attracting candidates by offering higher pay.
High school players should be recruited the same way any other potential employee is recruited: with competing offers of money, which can be stacked up against each other. Is it important for a player to know the personality and other intangibles associated with the people he might work with for the next four or five years? Absolutely. Let him figure that out. But let’s have the basics of this system work around the amount of money the prospective employer/college athletics operation chooses to pay the kid.
Finally, I don’t agree with the tenor or the letter of new PSU AD 39; it’s an overreaction, and I would contend that the requirement of a constant presence of two adults, when supervising minors, is appropriate and necessary only where there inheres some risk that an adult with illicit motive might take advantage: in closed-door rooms, smaller spaces, locker-rooms, bathrooms, etc. It makes no sense to require that two adults be present, for example, in a large gymnasium where eighty other kids are running around.
George Mitchell, armed with good sense and some wisdom, should have objected to the unnecessarily constraining nature of this new PD 39. (As I pointed out in an earlier Dec. 6, 2012 post, ‘How Sen.Mitchell’s Integrity Report Overlooks PSU’s Effort to ‘Gut’ a Basic Reform’, Mitchell similarly whiffed by rubber-stamping the PSU Athletics Department’s overtly under-handed implementation of the new post-Sandusky requirement that each sport have a new ‘Team Monitor’, responsible for overseeing “integrity” and compliance issues. PSU quietly let slip that the new Team Monitor for football and basketball would be the Head Coach! – creating the bizarre end-result that, if Joe Paterno were the PSU Head Football Coach today, he would also simultaneously function as his team’s own “independent” Team Monitor(!) So much for independent oversight and accountability.
Mitchell blew it, and he needs to go back and revisit these two topics.
But until Mitchell squawks, PSU is stuck with these overly restrictive rules which require coaches and recruit ‘chaperones’ to al AD 39, and must comply.
I’d be interested in input on these issues.
If you look up “prudential concerns” in the dictionary, the word ‘prudential‘ falls somewhere in between the words ‘poop‘ and ‘putrid‘. I don’t know how Ken Wainstein sleeps at night, but he explicitly found that alleged violation of those “prudential concerns” by the NCAA in the UMiami case mandated all manner of corrective and in-house disciplinary actions. [The term "prudential concerns" is nowhere mentioned or defined in the NCAA bylaws or in-house policies. I still don't know what in hell the term refers to.]
But I guess he’s swept up in a tide, consisting of trendy, desperate efforts on the part of one or more NCAA entities – the NCAA itself, or member schools – to justify their mercenary, manipulative ways by clutching out and hiring big-dollar white-shoe old law firms like Cadwalader to generate ostensibly “independent reviews” of one or more of the NCAA’s tawdry operational cesspools.
Wainstein’s Miami review is one of the worst. After finding zero violations of any written bylaw, law, rule, or statute, Wainstein rolled completely on his back, whispering, apparently, to CEO Big-Bucks Emmert breathlessly, “Whaddeveru want, Markey, it’s yours — Waddyu want me to say?”
And Wainstein gave Emmert everything he could have, asserting that he’d found violations of “prudential concerns“, and the “expectations” of NCAA members. Which is just nonsense. Unmitigated, penetrating nonsense, akin to suggesting that someone forgot to open the door for the female, or used the big fork (not the small one) for the salad dish.
I will repeat what I’ve said before: based on what we know to date, NCAA Investigator Najjir violated an order by a superior (an order which was probably completely wrong-headed in suggesting that the hiring of Attorney Perez to jointly represent Shapiro and the NCAA was in any way illegal or in violation of some known precept of any kind – because it wasn’t.) But his verboten hiring of Perez is the only violation of any known protocol in this entire scene. It warranted his dismissal for countermanding a superior’s order. It did not warrant a finding that the use of Perez was illegal or wrongful.
And that retention of the attorney did not, in fact, violate any known written law, rule, bylaw, or internal NCAA process, yet it is at the heart of the Wainstein/Cadwalader ‘NCAA Enforcement Review’.
In contrast, the NCAA’s involvement in an effort to obtain medical information, from a medical care provider, about a UConn athlete was a clear violation of written federal law (HIPPA). Not only is there good strong evidence of liability for that breach on the part of the medical providers, but there is equally strong evidence that the NCAA actively and intentionally worked with those providers to encourage and induce them to breach that duty — a duty which had to have been known to even the most poorly trained of NCAA investigators.
This would have been a knowing, intentional set of actions by the NCAA to induce that HIPPA breach. A breach which was obvious, if not glaring, to anyone with rather rudimentary knowledge of the requisites of HIPPA. And this breach, in fact, is much more egregious than the alleged (and entirely illusory) breach cited by the “independent” Wainstein/Cadwalader report concerning the NCAA investigator’s actions as regards the UMiami investigation — in which, I would contend, the actions of the investigator were, based on facts we know, appropriate and consistent with the duties of that investigator.
This HIPPA violation was – by any standard – thoroughgoing and intentional — and ought to mandate the dismissal of the NCAA investigator involved, and also federal sanction.
This was not the violation of some phony “prudential” concern. It was the knowing violation of a federal statute. But neither Mark Emmert, nor his supplicant, Ken Wainstein, would be willing to admit it. Mark Emmert needs to refer this UConn medical data breach to federal authorites, with a cover letter citing potential violations of – not ‘prudential concerns’ – but federal statutory mandates.
Emmert contended within the last month that he is “an academic”, desperate to show that he has some commitment to empiricism and reason. He’s not an academic. He’s a careerist professional bureaucrat. And not only has he long ago left academia; he has little understanding of the rudiments of due process.
And the NCAA is a headless, impetuous monster.He has to go.
As I suggested in my previous post (“Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations“), the conclusions drawn by the Cadwalader a report are almost laughable. As I also pointed out, I am no fan of the NCAA enforcement process. In addition, I believe it’s time for Pres. Mark Emmert to resign. But not because Mr. Wainstein and Mr. Emmert have very seriously concluded that Ms. Lach violated some “prudential concerns” or some airy and unwritten “membership expectations.” After all, one lawyer’s “violation of prudential concerns” is another lawyer’s highly competent, perhaps daring, but entirely legal and perfectly-researched tool to be used to satisfy his fundamental duty to zealously advance the interests of his client.
“It has always been our policy that...” That’s why we have rules. Written rules. The Wainstein Report reminds me of my old friend’s description of his service in the U.S. Army, in which he learned to be highly suspicious whenever any superior began a conversation or meeting with the statement that “It has always been our policy that…,” because, he said, most often this was a hint that no such policy ever existed, except perhaps in someone’s head.
Mr. Wainstein could cite no written authority for his heavy-handed critique of Lach and others, but easily moved on to a sort of “it has always been the NCAA’s policy” fabrication, by insisting that the taking of depositions was violation of “memberships expectations of the NCAA.”
Perhaps Mr. Wainstein has extraordinary instantaneous NCAA-membership-polling capabilities (either digital or telepathic); otherwise, I can’t help but asking: sez who?
Moreover, when President Emmert imposed his (largely ex cathedra) $60 million penalty and other draconian sanctions upon Penn State recently, couldn’t we all agree then – and now – that his unprecedented, extraordinary actions violated every members’ expectation of the NCAA? If so, then the “rule” pronounced by Mr. Wainstein’s Miami Report mandates that we roundly condemn Mr. Emmert’s PSU resolution.
And it would be no more fair or even helpful, in the case of those Penn State sanctions, to apply the irrelevant platitude utilized by Mr. Wainstein in his Miami Report, and suggest that Mr. Emmert did “not have free rein to utilize any legal technique that would be of use,” — would it?
But I want to focus for a minute upon the trashing of Julie Roe Lash, who lost her job as a result of the sloppiness of this Miami Report, and Mr. Emmert’s hyperventilated, high-school-mock-trial notions of fairness and due process. I don’t know Lach; I suspect she probably was a tad over her head in that position (though I don’t know that), being as young and apparently under-trained for the job as her experience suggests. (If I’m right, I’ll damn Mark Emmert for that critical staffing error, since, as President of an NCAA with somewhere between $300 million and $500 million in cash in the bank, he had the wherewithal to, for example, hire a big-ticket, highly experienced former U.S. Attorney prosecutor to run Enforcement.)
Ms. Lach took a fall, lost her job, because Mr. Wainstein cavalierly concluded — without making through inquiry – that she negligently supervised Mr. Najjar, after he lied to her face about the approval he allegedly got from Legal to hire Attorney Perez to do depositions.
Mr. Wainstein failed to make the necessary inquiry (and findings) about the de facto past practice within that NCAA Enforcement office concerning: 1) the alleged requirement that all hiring of outside attorneys be done by Legal; and 2) that, in the circumstances, the oversight by Ms. Lach fell short of customary office practice at the time.
Incredibly, Wainstein makes somewhat off-hand reference to the fact that “during their interviews, enforcement staff members explained that NCAA investigators had leveraged other legal processes to get information in past cases”- but he never follows it up! Even with this broad hint, the Report fails to make further findings about the de facto past practice within the office.
U.S. Army Sergeants and big-shots like NCAA Legal Chief Remy might be prone, when pressed, to categorically announce that “it has always been our policy;” in light of that common predilection, and the “past leveraging” comments received from Enforcement staff, Wainstein had a duty to plumb that actual past practice, over the years, within the NCAA Enforcement/Legal setting, as to the hiring and oversight of outside counsel. Was there a de facto past practice which conflicted with the “it has always been our policy” assertion?
We don’t know, and neither does Wainstein — even though the existence of such a de facto practice is squarely relevant to making any assessment of Ms. Lach’s allegedly defective performance. But here’s the broader problem raised by Wainstein’s odd failure to make inquiry and finding about the de facto past practices in that office: such an inquiry necessarily raises fundamental questions about: 1) who set policy and practice?; 2) who had responsibility for overseeing the office to determine whether de facto practice in that office paralleled the ostensible “It has always been our policy?“; and 3) Why (particularly if these issues are important enough to fire someone like Lach) weren’t these “it has always been our policy” policies written down anywhere?
Wainstein and Emmert have bagged Lach, to protect — guess who — Emmert, and Chief Counsel Remy. Each of those questions in the above paragraph raise serious questions about management of Legal and the entire Enforcement operation.
It gets worse, if you want to speculate a bit. It’s becoming more and more clear: Emmert doesn’t know which end is up, and his own mistake, early on, made a pig’s breakfast out of this whole issue.. Emmert — very inappropriately – went way out on a limb long before the Wainstein Report even issued, in using highly judgmental, pejorative language about the actions of the Enforcement staff in the Miami case. So he boxed himself in. But then what happened?
As I’ve pointed out here, Wainstein correctly found that no laws, Bylaws, bankruptcy or other rules were in any way violated. He also had to tell Emmert: there are no inter-office written rules that were violated, either – and there are many staffers saying it’s commonplace to “leverage” other legal proceedings, the way Najjar did, to get evidence. Presumably, Wainstein also had to tell Emmert that these “leveraging” references are, in fact, pretty good evidence that the de facto practice in that office has been contrary to what Legal says it has been.
But Emmert had already gone out on a limb, publicly excoriating everyone involved.
So he had to tell Wainstein: find something. So Wainstein made up this cockamamie (impossible to define) “violation of memberships’ understanding” standard, and they fired Lach.
The broader point is that there are zero rules, laws, bylaws, in-house written procedures — nothing — which were violated by Ms. Lach. And -though Najjar was a lying rogue who countermanded an order -the taking of bankruptcy depositions violated no written provision anywhere. But Ms. Lach got the ax.
Written rules are the keystone for guiding the actions of people and organizations. The Miami Report barged around and couldn’t find one written rule violated in these circumstances, so it invented the “Prudential Concern” and “membership understanding” as the kind of bedrock, fundamental value which the NCAA must protect and use to guide everyday affairs. To paraphrase Justice Frankfurter: the law should not lead to a conclusion so utterly inconsequential.
Attorney Wainstein, and Mark Emmert, have substantially weakened the NCAA enforcement staff (and process), by generating a new daily paranoia in their professional lives, encapsulated in this sort of self-doubting question which they will all ask themselves when considering any action: “Is what I’m thinking of doing somehow in violation of “members’ expectations?” Or the “understanding” of members?”
Because there’s no answer written anywhere, and because the answers require guesswork about what literally thousands of different people (many with wildly conflicting interests) might “understand” or “expect”, the pragmatic effect of this sloppy, almost incoherent Miami Report is to make NCAA enforcement now even more scared to do anything effective.
This fatuous report unnecessarily and carelessly cratered Julie Roe Lach’s career (probably to save the jobs of Remy and Emmert) and makes the NCAA Enforcement staff and process even more toothless than it already is.
The thoroughly and fundamentally flawed NCAA Enforcement Review, released two days ago by Attorney Ken Wainstein of Cadwalader, got one thing right: his finding that a rogue employee insubordinately countermanded a direct order from a superior by proceeding to retain and pay Nevin Shapiro’s attorney to conduct bankruptcy depositions on (partial) behalf of the NCAA. My reaction? Big Deal. Happens all the time. Fire the guy and move on.
Wainstein also got a second thing right, when he concluded that having Attorney Perez take those depositions violated no law, NCAA bylaw, or Federal or NCAA rule of procedure.
Otherwise, the report repeatedly reaches conclusions either not supported by, or in direct conflict with, its’ own findings. And its’ primary criticism – that having Attorney Perez take those depositions on (partial) behalf of the NCAA was an egregious, horrible transgression – rests exclusively on, believe it or not, some airy, undefined and wildly subjective notion of what NCAA members “understand” or “expect.”
The “I’m hearing that people are SAY-ing..” Trick: A long time ago, back when I did some lobbying for a couple years up in the state capitol, one of the best long-time political operatives there in Augusta unashamedly described to me one of her most effective, clever and simple tools for publicly advancing any of her many (often conflicting) agendas, ideas, bills, mean-spirited vicious rumors, lies, truths, or other calumnies, which she referred to as her “I’m hearing that people are SAYing.. Trick.”
“I just make a point” she explained, “of mentioning to randomly-selected other lobbyists or legislators I run into in the halls of the Capitol, through the course of the day, in an off-hand manner, that ‘I’m hearing that people are SAY-ing” [followed by whatever precise information or disinformation she wished to spread that day.]”
I saw it work. Very well. Invariably, that “news” would spread, as Mark Twain suggested, “faster than the truth could put on its’ pants,” and oftentimes accompanied by some phantom, usually unwarranted if not appalling credibility.
The gist of the February 17 Cadwalader ‘NCAA Enforcement Review’ bears strong resemblance to much of what that Augusta political operative spread, based as it is solely on that same variety of “I’m hearing that people are SAY-ing” innuendo which insults the intelligence of the American public. It also, perhaps more to the point, sucks Cadwalader into the NCAA’s long-running pose, meant to suggest that big time NCAA sports is resolutely governed by a set of immutable rules of law, fueled by integrity and good sense. It’s not.
This Cadwalader “Review” is a crock. A heaping, steaming, pile of cowshit. Watch out, while I try to muck out these Cadwalader stables — turn and wheel and dump the manure down below, where it might help make the gardens grow later this spring — that you don’t step in it. It’s pretty deep.. .
This is, after all, a report which rests inelegantly but exclusively upon what purports to be a serious… finding….of….violation…of….”Prudential…Concerns?”
That’s all you have? Prudential…con-CERNS? You must be kidding. My diaphragm is seized up. I can’t breath. A white-shoe firm comes back, after, what — a $250,000 review– and you want me to get exercised about some “Prudential Concerns” which you insist are so sacrosanct that we need to shit-can some sweet corn-fed girl named Lach from Missouri or Illinois who’s just trying to do her job? Prudential Concerns? Ken, here’s twenty bucks, go buy yourself some new suspenders, twice as long -, I think you’ve lost alot of ballroom circulation down there.
In fact, I’m not sure, even after reading your report through, Mr. Wainstein, what exactly ‘Prudential Concerns’ are –. some kind of insurance, maybe, or annuity? Maybe condoms?
Is this some Upper East Side code? St. Paul’s? Some secret Skull-and-Crossbones society induction incantation? Prudential concerns? On first read, I couldn’t process, but I nonetheless immediately knew something was very rotten in Denmark. It took me a bit to figure it out, but I did. I studied the entire report.
Here it is, boiled down. Follow close behind me here, otherwise you’ll get lost in the NCAA thickets, and the organic matter will pile up and over your brogans:
Rogue Employee: This case revolves around the actions of a rogue employee, a Mr. Najjar, who was told by the NCAA legal department not to undertake an agreement with Nevin Shapiro’s attorney (a clearly brazen Ms. Perez), to have Ms. Perez conduct bankruptcy depositions on at least partial behalf of the NCAA.
Despite this explicit proscription delivered by a Ms. Stevenson of the NCAA Legal Department (an instruction which was, I would contend, based upon a fundamentally flawed analysis of the alleged impropriety of the taking of depositions by Ms. Perez), Mr. Najjarr went ahead and did it anyway. Got Perez to do the Bankruptcy depositions, of a Sean Allen, and a Mr. Huyghe, both UMiami Athletics hangers-on who clearly had central roles in the funnelling of money, benefits, party-favors and god-knows-what-else to UMiami big-shot athletes. And NCAA Investigator Najjar also then lied, bold-faced, to his Boss Julie Lach by telling her that he had, indeed, been given new approval by the legal department to have Ms. Perez conduct those depositions — after having been previously explicitly told by NCAA Legal not to undertake any such kind of deal to get Ms. Perez to perform those (under oath) depositions.
A fairly common circumstance here: rogue employee lies, commits an act which is insubordinate and in direct conflict with a superior’s prior order. In fact, it’s happened, I would humbly suggest, to most of us who have operated in any kind of employment-related supervisory capacity..
(And, somewhere in the midst of these events, Mr. Najjar was “separated” from his NCAA employment, though Mr. Wainstein conveniently doesn’t define exactly when this took place.)
But the Cadwalader Report has concluded that Ms. Lach failed to appropriately supervise Mr. Najjar, even though he moved ahead only after having lied to her face. Whoa. And they want to bag her.
Ms. Lach has gotten hung out to dry. More on that in a minute.
No Bylaw, Law, Procedure, Rule, or NCAA Internal Rule Broken: Here’s what Mr. Wainstein unequivocally found as fact (and conclusion of law):
“The facts do not establish that any NCAA staff member intentionally or unintentionally violated any bylaw, bankruptcy procedure, or law in their acceptance or implementation of the Perez proposal. Based on the circumstances as we now know them come it does not appear that any bankruptcy rule or procedure was violated. Nor have we found any NCAA rule or bylaw that specifically prohibits any of the enforcement staff’s conduct in this matter.”
BOOM!, as they say.
So what’s the problem? Well here’s how — after making that unequivocal, stark finding above — the alleged “problem” is then defined by Mr. Wainstein’s report:
“The Enforcement Staff operates under a set of expectations about the lengths to which they can go to investigate the case. Though unwritten, there is an understanding among the membership that they should forgo investigative techniques that might give the enforcement staff too much power, especially in the academic environment where they operate. For example, there are any number of investigative techniques which don’t pass muster in in a court of public opinion when used by law-enforcement-such as running sting operations or lying to interviewee to trigger a confession-which would be likely considered beyond the pale for the NCAA investigations.”
“the Enforcement Staff’s decision to leverage the bankruptcy process to compel interviews from uncooperative third parties went beyond the limits that the membership has placed on its investigations. At some level, the question is inherently unanswerable. There are no guidelines or rules that define such a limit; nor is there a directly analogous precedent that can be reviewed for clear guidance. So we are not in a position to find that the enforcement staff clearly violated an internal NCAA limit on its’ activity.”
“Everyone we interviewed recognized that the Enforcement Staff operates in an environment of limited authority and that they do not have free rein to utilize.any legal technique that would be of use in their investigation.”
“Mr. Najjar” …… “never considered whether it was nonetheless inconsistent with the memberships’ expectations of the NCAA”
Well, ok….. Could I ask….like… a couple questions? Um, like, uh, how….. how am I — or anyone else, including members of your NCAA club — supposed to know what those things are, like ….
“Understanding among the membership”: What, precisely is this ‘understanding’, and where’s it written?
“Went beyond the limits that the membership placed on its investigation.“: What, precisely, are those limits placed by the membership? Which member? When? [Mr. Wainstein quickly, partially answers -- don’t ask me why -- this question: "There are no guidelines or rules that define such a limit."]
“enforcement staff operates in an environment of limited authority.” Where can I go to find these limits, or this environment, described in any detail?
“wisdom, propriety, and general reasonableness of the enforcement staff actions, even if those actions violated no written rule”: Where is the standard by which the “reasonableness of their actions” ought be measured? Isn’t that precisely what written rules are for?
“involvement in the bankruptcy process was problematic.“- Problematic? Where is it defined, and what, exactly, is a “problematic” involvement?
“memberships’ expectations of the NCAA”: What are those “expectations” of the membership, and where are they written?
Let’s see if I get this: we know from this report that no bylaw, law, rule process, process or anything specific in writing was broken by taking this deposition. What Ouija Board, then, ought a member of the NCAA — or the general public — use to define “understandings?” Or “expectations?” Or “limits?” “Reasonable judgment?”
Isn’t that what a rule book, or law, or bylaw is for? To let people know? After all, you’ve got 450 page Compliance Manual, and Mr. Wainstein has found no violation of anything in there (or any other book, anywhere.)
In summary, Mr. Wainstein can’t point to one book or written rule of any kind which was broken by the NCAA in retaining Ms. Perez’ deposition services; so he’s landed himself in the midst of an analysis founded on that old, hackneyed offensive ‘trick’ utilized by my old Augusta lobbyist: “I’m hearing that People are Say-ing…”
And if you think I’m going too easy on the allegedly nefarious Mr. Najjar for engaging Attorney Perez, just take a look at the Miami attorneys’ reaction: they attended the depositions! They never objected! Nary a peep! They knew this “joint” representation undertaken by Attorney Perez is not only commonplace, but oftentimes, good lawyering. If Wainstein’s vaunted “prudential concerns” were so obviously violated in taking the depositions, according to Wainstein’s estimation, is it not clear that the big time attorneys representing Miami in that very enforcement action themselves concluded that no such member expectations” or “understandings” were being violated? The Miami attorneys, whose job it was to zealously protect Miami, evidently saw zero “prudential concerns” when they allowed the depositions to go forward.
Don’t get me wrong. I’m no fan of NCAA enforcement. In fact, this Wainstein report is just one more peek behind the charade which is NCAA investigation and enforcement, albeit in slightly unusual circumstances. More commonly, enforcement decisions themselves are driven by some highly subjective estimate of “what the members want”, as opposed to any Rule of Law — and those decisions (except when, as at OSU, PSU, UNC and now, Miami, the NCAA gets embarrassed by outside law enforcement or press sufficient to kick into gear some at least partially good-faith, viable enforcement action) generally result in “wrist-slaps.” This is the flip-side: Emmert and Wainstein recklessly, and without foundation, roasting one of their own, and needlessly damaging the public’s perception of the process, by concocting out of the ether some standard of behavior which still, even in the text of Wainstein’s report, remains undefined.
As I pointed out in my earlier post, the ‘Paterno Report’ released yesterday is not what it appeared to be. And former AG Dick Thornburgh, in his ostensibly objective review, complained loudly about the Freeh Report not having made available all documents which Freeh had reviewed, and all information about all witnesses interviewed.
Yet Mr. Thornburgh and Wink Sollars, the Paterno’s “personal” attorney, both conveniently fail to mention that the Paternos have in their unique possession a potential treasure trove of documents or other evidence that, most likely, have never been seen by Louis Freeh and, possibly, any other law enforcement personnel.
Jo Pa’s daily calendar of events, and other documents in his daily files would very likely tell us alot about when Jo Pa met with the other characters apparently directly involved in the coverup: Messrs. Spanier, Curley and Schultz.
For anyone — including Attorneys Thornburgh and Sollers – to make the best possible review of all the evidence, the Paternos need to release those documents.
Should we assume that, because the ‘Paterno Report’ omitted any reference to, or attachment of, those documents, that they would only damage the Paterno “cause?”
Lawyers who try cases tend to be more than a little skeptical when the other side wants to call the wife to testify. And that skepticism often proves warranted, as the often gullible, highly emotional, if not distraught female gets on the stand to swear to the probity, yea, heavenly virtuousness of her husband (though she often had nary a clue about what really went on once the husband left her door each morning to venture forth on the working world.)
The reader ought bring a similar skepticism to the extremely shoddy – and deceptive — “Paterno Report” just released.
Perhaps the major point made by former AG Thornburgh — after translation from the legalese — is this plaintive, shrill complaint (which, not incidentally, completely undermines his entire mission and all of his conclusions) :
I, Dick Thornburgh, have had access, apparently, to only about one percent of the documents and witness statements that Louie Freeh had access to— and that just ain’t fair!
Well, first of all, whether it’s fair or not, it means that Thornburgh has almost zero objective basis for any attempt to sharpshoot Mr. Freeh. Thornburgh today admits he’s never even seen most of the evidence Freeh saw. So Freeh’s “weighing of all the evidence” is entitled to a much, much stronger presumption of accuracy and fairness than any hyperventilated claim registered here today by Mr. Thornburgh.
And just because Freeh doesn’t list every document and witness he reviewed, doesn’t mean Freeh didn’t review them. In fact, the Freeh report specifically states that some evidence was not included in the public version — it was (legitimately) saved for the report to the Board. So Freeh reviewed it all. Thornburgh couldn’t, and didn’t.
But you know what? — it actually is eminently fair that Freeh saw it all and Thornburgh didn’t. Freeh was supposed to be independent, and he had an attorney-client relation with Penn State. The Board gave him full access. Mr. Thornburgh didn’t have any attorney-client relation with Penn State, and he was hired by a very interested, biased party.
But also — here’s right back ‘atchu Dick Thornburgh:
Tell us, if you think it’s so important to reveal this sort of thing, where you put JoPa’s daily calendar. And why you haven’t appended it to your report.
It’s fair to assume Paterno kept many documents, some digital or online. It’s also fair to assume that Sue or some other Paterno (all of whom ordered-up this vaunted “Paterno Report”) right now has possession of all those documents. Most likely, boxes and boxes, and boxes of evidence. Do you recall, Mr. Thornburgh, the discussion back last year about how probative Mr. Paterno’s daily calendar might be in determining when, and how long, Mr. Paterno met with important fact witnesses — over a ten year period — like Messrs. Spanier, Curley and Shultz? Where is that calendar? Where are those documents? Isn’t that what you ought be showing us as a part of your unique report?
Mr. Thornburgh, you do have the attorney-client relation with the Paternos. If you and Mr. Sollers decided not to produce those documents as a part of your “Paterno Report”, should we then call it the “Partial Paterno Report?” Can you at least tell us, without releasing that treasure trove of documents personal to Jo Pa, whether you even bothered to review them yourself? The question is so important that I’ll ask it again, Mr. Thornburgh: where is Mr. Paterno’s calendar, why did you not append it to your report, or even make any reference to it?
But let me get to a larger point evident from a review of this sorry report : Sue Paterno, you got hosed. Thornburgh, Wink Sollers — they saw you coming. Your garden of advisors, including Wink Sollers, and Dick Thornburgh, and others, read the same article I read, which confirmed that the Paterno Penn State pension payout last year was $13 million. All of these so-called advisers understand there’s a whole lot of money laying around, with which they can be paid — very substantial hourly rates. And they ginned up a largely useless, pretentious, self-defeating analysis, using your millions.
Here’s a fundamental example of that uselessness: Mr. Thornburg suggests that the findings of the Freeh report were “not supported by the record.” This categorical statement begs the question: what standard, Mr. Thornburg, are you suggesting ought be applied for determining whether there is, indeed, “support” in the record? Preponderance, which is nearly 51%? By “clear and convincing evidence? Or, the highest (criminal law) standard, “beyond a reasonable doubt.”
He doesn’t tell us.
The fact that Thornburgh has omitted any reference to the standard of proof which he asserts has not been met is pretty categorical proof that Thornburgh himself knows that his report is a put-up job. He knows that these these “standard of proof” issues are bedrock issues, and intentionally just leaves it all vague. Most likely because he knows that most, if not all of the issues and conclusions addressed by Freeh required only a preponderance of proof — and that Mr. Freeh met that standard.
Two final points:
1. This one is a window onto Mr. Thornburgh’s crafty deception: he claims that he is “aware of no witness who has challenged the veracity of Mr. Paterno’s statements.” This is cute, but disingenuous; there’s a basketful of competent, probative evidence in support of Freeh’s negative conclusions about Jo Pa’s failure to act. That no witness has directly “challenged” Mr. Paterno’s version is an empty statement, probably true only because the late Jo Pa said as little as possible about all this. No one ever had a chance to sit in a room with him, hear his version, and then respond affirmatively.
So Mr. Thornburgh’s assertion here is actually just more support for the conclusion that Paterno worked a coverup which precluded any contrary opinions. And note what Thornburgh does not say in the statement: he is not claiming that there was no other evidence whatsoever which would challenge the “veracity of Mr. Paterno’s statements.” Because he can’t make that suggestion: there were many such documents, e-mails, and statements.
2. Mr. Thornburg also suggests that the Freeh had “no evidence” of a conspiracy, primarily because Mr. Freeh relied on the fact that Paterno exercised “excessive influence” around Penn State. This tangential assertion exposes Mr. Thornburgh’s dedication to stirring up diversion. In fact, if Mr. Thornburg is suggesting that Joe Paterno did not have “excessive influence” in the Penn State milieu, then his report ought to be filled with recitation, chapter and verse, of every piece of documentary,, testimonial or other evidence in support of this zany claim.