Emmert Fails Due Process 101: NCAA’s Self-Reporting-Based System is Dead and Needs New Leadership

Mark Emmert Must Resign

Within a week after the Duke Lax alleged rape scandal ‘broke’, I wrote an email to Duke President Richard Brodhead, who had taken action and made damning public statements suggesting he’d already decided that the Duke players were not just guilty of something, but guilty of a whole lot. And I told Brodhead that he needed to slow down, allow the presumption of innocence to apply to all accused, and let criminal due process unfold. (Duke players deserved that protection despite a long pattern of boorish, spoiled-preppie-child behavior.) We later saw how unjustly vilified the Duke Lax players had been, when the accuser was later found to have been lying. Due Process is critical.

It’s now plain that, like Duke’s Brodhead, NCAA Chief Mark Emmert does not, and apparently cannot, understand due process. As I’ve pointed out in recent posts, he’s just ‘jumped his own UMiami gun’ by making sweeping, damning public conclusions about the purportedly “shocking” nature of actions taken by NCAA staffers who investigated UMiami’s party-hearty mess. Those conclusions are entirely premature, since Emmert himself appointed an independent outside attorney to conduct a thorough investigation and prepare a summary report — and that investigation has just started. Leadership is not jumping to premature conclusions; it requires patience and attention to detail of process. But Emmert doesn’t understand any of the rudiments of due process.

This is not the first time he’s run around like a schoolkid hyperventilating about some cork-screwed idea of propriety or justice which he’s happened upon while being chauffered around in a black SUV. His $60 million penalty assessed on Penn State showed that he has little or no concept as to how due process ought to work. The NCAA, and its’ members, would have benefitted by having the NCAA’s own mandated adjudicatory process play out, and applied thoroughly to Penn State. More important, Emmert seems to have been the one who came up with the ultra vires [beyond-authority], zany notion that Penn State ought be commanded, by an athletics/academic organization (which is what the NCAA purports to be) to pay a grand $60 million penance to charities which educate and protect against child abuse.  That penalty was for the civil and perhaps criminal system to fully adjudicate; Emmert and the (predominantly “small-school” presidents) who sat on the NCAA executive body which assessed that penalty exceeded every and all authority which the NCAA might in any way purport to hold.

But Emmert couldn’t wait to let the “due” in “due process” occur, as regards Penn State; it appears he couldn’t wait because the PSU case let Joe Main Street in on  two heretofore well-kept secrets:

1) If a paragon of apparent coach-virtue like JoPa could perjure about, and cover-up, child abuse, then he’d certainly have no reservations about lying and covering mere NCAA bylaws violation; and, therefore

2)  That the NCAA investigatory and adjudicatory system is a sham:

Emmert may have been sensing all this somewhere within all the space-for-rent in that carefully coiffed head, fretting about what possibly he might do now that the entire NCAA regulatory, investigative and adjudicatory is fundamentally and thoroughly broken, as follows:

1) ‘Self-reporting’ — one of the bulwarks upon which the entire system rests – is dead. It doesn’t work. Lyin’ Jim Tressel’s Tattoo-gate Jock College at OSU; Perjuring Jo Pa’s Pedophila-Covering Jock College at PSU; the No-Class, One-Paper Jock College at UNC; and UMiami’s Vegas-Weekend Jock College — almost every “major” recent case has not been self-reported. Instead, it’s a US Attorney, a Pennsylvania AG, an aggressive Dan Kane at the Raleigh paper, or felon Nevin Shapiro at Miami. That’s who reports. The big shot schools, with millions of dollars at stake, do not self-report. Self-Reporting is Dead.

2) The Big Shot Schools don’t just ‘Not-Self-Report’, they Bury. And they have plenty of money, staff, and heft to bury very well, thank-you-very-much. Most in-house Compliance offices just help bury. If you’re a Big Shot school, with million-dollar ADs and Presidents, then you use your bureaucracy to “remove footprints” all over campus, to paraphrase Walter Byers’, the NCAA’s long-time former Executive Director.

Just look at Notre Dame, upon finding on Dec. 26 what they later admitted was some “whiff” of gambling or other NCAA-violative conduct within the puzzle which is Monti Te’o and his love life, ordered up a patently tepid investigation which merely insured they would not discover any relevant evidence — and then just buried it all.

Or two years ago, OSU found Tressel’s astonishing emails on January 13 (someone outside the department finally forced them to review them!) – but waited three “convenient” weeks to tell the NCAA about this unequivocal evidence of fraud — time utilized by Tressel and others to “tidy up” documents, coach witnesses, and protect “the brand.

The de facto operating premise running through the entire NCAA system is that members must be given room to “not self-report” and to “bury.”

But remember, as regards any attempt at this point to draw any conclusions about the NCAA investigators’ action vis-a-vis Miami, each of these other “big” cases in which the whistle was blown by feds, AG’s, newspapers and others, are ones where the NCAA relied on information obtained by authorities who had subpoena and other investigatory powers not given to the NCAA. The use of such evidence, strictly “extrinsic” to the process defined by bylaw for NCAA investigators, did not bar the use of the extrinsicly-obtained evidence. Stated in another way: just because a witness testified under oath and subpoena, for example, in a separate legal proceeding, does not necessarily mean that the NCAA cannot rely on those sworn statements in preparing or prosecuting the NCAA case.

Which is why Emmert’s fundamentally jumped the gun in a second manner, by making promises — again, before his own independent investigation is complete – about the kinds of UMiami evidence he might insist be “throw out.” He’s a loose cannon. He claims to be an academic, and he uses his hands to give an appearance of probity and openness, but his actions reflect a desperate, desultory jumpiness.

Note that I’m not suggesting that it’s clear that the NCAA investigators have done anything “wrong” in the UMiami investigation – far from it. What I’m sure of is that Emmert hasn’t a clue how to evaluate whether their process was fair, or how to insure that those who purportedly have a right to due process (like UMiami, or the NCAA investigators) actually get it. He just gets jumpy, and decides he just has to scream out “shocking” when the thought crosses his mind.

Where’s this leave the NCAA?: The NCAA system resembles a wink-wink college Inter-Fraternity Council adjudicatory system, in which no penalties occur because member frats never self-report as required.

But Emmert’s bungling of the elements of due process show both that he has little respect for process – but, more importantly, so little insight as to how legitimate investigation and adjudication ought to occur that he is incapable of leading the organization toward the kinds of competent, principled and thorough reforms which are needed

First, Emmert has to go. Then bring a real leader, to lead the reforms.  And forget about self-reporting.

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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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