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.