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.