Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations

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?”

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.

Or,

“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.” 

Or,

“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.”

Or,

“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.

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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