Select NCAA enforcement staff acted contrary to internal protocols, legal counsel and the membership’s understanding about the limits of its investigative powers in the University of Miami case, according to the external Enforcement Review Report.
Kenneth L. Wainstein, a partner with the law firm of Cadwalader, Wickersham & Taft LLP, conducted the review at the direction of NCAA President Mark Emmert following his January 23 announcement of conduct issues within the enforcement program.
“With the completion of the external enforcement review, we recognize that certain investigative tactics used in portions of the University of Miami case failed our membership,” said Emmert. “As I stated before, we are committed to making the necessary improvements to our enforcement processes and ensuring our actions are consistent with our own values and member expectations.”
This review focused specifically on the enforcement staff’s use of outside counsel and the federal bankruptcy process to determine whether staff took inappropriate steps in their efforts to secure testimony and records, and if so, determine how that happened.
The external review found select enforcement staff members:
Knowingly circumvented legal advice to engage Nevin Shapiro’s criminal defense attorney.
Violated the internal NCAA policy of legal counsel only being retained and monitored by the legal staff.
Paid insufficient attention to the concern that engaging the criminal defense attorney could constitute an inappropriate manipulation of the bankruptcy process.
Did not sufficiently consider the membership’s understanding about the limits of the enforcement staff’s investigative powers.
Did not violate a specific bylaw or law.
Additionally, the report found:
Enforcement leadership exercised insufficient oversight of the engagement of the criminal defense attorney.
The legal and enforcement staffs took appropriate action to rectify the situation once they realized select enforcement staff members had engaged the criminal defense attorney.
The information gained through the bankruptcy proceedings or other evidence derived from that process will not be used in the Miami investigative record. The NCAA plans to proceed with the case with information properly obtained by the enforcement staff.
“This report is an important first step in responding to the issue at hand,” said Wainstein. “For an organization with an oversight function like the NCAA, its credibility and reputation for fair-dealing are always more important than its ability to prove the allegations in any particular case. This episode is a reminder of the problems that arise when investigators resort to expedient but questionable tactics.”
“My responsibility is to be certain that the membership has confidence in all of our processes across the national office,” said Emmert.
“To that end, I have appointed Jonathan Duncan, a law partner with a focus on education and sports law at Spencer, Fane, Britt & Browne LLP, to serve as interim vice president of enforcement. He has worked on NCAA issues for 15 years from multiple perspectives, including service to both the Enforcement and Rules Working Groups,” added Emmert.
Additionally, Duncan and Spencer Fane will work with Cadwalader to review the regulatory environment from the national office and membership perspectives. To gain member insights, the review will include discussions with schools that recently engaged in the enforcement process. It will comprise a broader policy, practice and procedural review of how NCAA regulatory activities are managed and conducted.
The final phase of the review will engage the membership to probe broader, philosophical questions about the nature of the regulatory side, including the desired outcome of regulation and to what level the membership wants to be held accountable. The review will include enforcement, eligibility, reinstatement and the waiver processes.
“Integrity is vital to the Association’s regulatory functions,” said Lou Anna K. Simon, executive committee chair and Michigan State University president. “Our expectation is that the NCAA uses this review as a launching point for meaningful change. Moving forward, NCAA member schools must engage in a healthy debate about our desired outcomes and expectations of the Association’s regulatory functions.”
The release of this Report does not waive the attorney-client privilege with regard to any other document or communication concerning this, or any other, matter. The NCAA will assert the attorney-client privilege to the extent permitted by law. Exhibit redactions have been made to fulfill confidentiality and privacy obligations for information that is otherwise not generally available or accessible by the public. None of the redacted information is material to the subject of the Report