Miami fires back at NCAA investigation
FEB 18, 2013 1:00p ET
"We have been wronged," Shalala said.
Her statement came shortly after the embattled NCAA said it was pressing on with the case against Miami, even after the acknowledgment Monday of "missteps" that led to the replacement of its enforcement department and the throwing out of all ill-gotten information gleaned from two depositions that could have been very damaging for the Hurricanes.
The NCAA said it paid Maria Elena Perez, the attorney for former booster Nevin Shapiro, more than $19,000 for work she performed, primarily using subpoena power to ask questions on the association's behalf and doing so under the guise of a bankruptcy case. The NCAA does not have subpoena power and was not involved in Shapiro's bankruptcy proceedings.
And this all comes with Miami expecting to finally receive its notice of allegations -- the list of wrongs that the NCAA will claim it found -- as early as Tuesday, a long-awaited step that will usher in the start of the sanction phase of the process.
"Sadly the NCAA has not lived up to their own core principles," Shalala wrote. "The lengthy and already flawed investigation has demonstrated a disappointing pattern of unprofessional and unethical behavior. By the NCAA leadership's own admission, the University of Miami has suffered from inappropriate practices by NCAA staff."
Perez did not immediately respond to a request for comment. The Florida Bar said last week that it has opened a file to see if Perez broke any rules through her involvement in the Miami-NCAA matter.
Earlier Monday, speaking on a teleconference to announce the findings of a review into his association's ties with the attorney of the former Miami booster at the center of this scandal, NCAA President Mark Emmert insisted the case will not be settled.
"This is going to go forward to the committee on infractions," Emmert said.
It's believed that committee has a meeting sometime in the next few days, though it would be an incredibly rare step for Miami to get in front of that group so quickly. The next scheduled session comes in April -- and it usually takes two to three months for penalties to be announced after schools appear before that committee.
"There must be a strong sense of urgency to bring this to closure," Shalala wrote. "Our dedicated staff and coaches, our outstanding student-athletes, and our supporters deserve nothing less."
Already, Miami's football program has voluntarily forfeited the right to appear in two bowl games, along with one trip to the Atlantic Coast Conference championship game, up to 30 practices and an undisclosed number of scholarships in response to the investigation. Earlier this month, coach Al Golden told The Associated Press that he believes the Hurricanes have already paid "a huge penalty."
Others, on the NCAA level, are also paying a price.
Julie Roe Lach, who was the NCAA's vice president for enforcement -- basically, its top cop -- since 2010, was ousted and has been replaced on a temporary basis by Jonathan Duncan, a lawyer with extensive experience working with the association.
"Obviously, this is an outcome that nobody wants to see on their watch or anyone else's," Emmert said. "This is something that's an embarrassment to the association and our staff."
Lach was part of the chain that approved payments to Perez, the attorney for Shapiro, a convicted Ponzi scheme architect now serving a 20-year term in federal prison. According to a 52-page report commissioned by the NCAA and released Monday, Perez offered her help to the NCAA in the form of "using bankruptcy subpoenas to compel depositions from witnesses who had refused to cooperate."
The NCAA, in turn, provided her with specific questions to ask, those coming in an email from former investigator Ameen Najjar, dated Dec. 18, 2011. "Maria, Listed below are a number of areas we would like you to explore," began the email from Najjar.
From there, he listed 34 questions, none of which seem to be in any way related to a bankruptcy case.
Upon learning that Perez was willing to participate with investigators, members of the NCAA's legal team urged the enforcement department not to proceed, though were apparently ignored. And now the depositions given by former Miami equipment-room staffer Sean Allen and former Shapiro business partner Michael Huyghue -- along with any other lead that came out of their interviews -- have been tossed from the NCAA's case against the Hurricanes.
"Based upon our review, it is our opinion that the current assertions in the U. Miami Investigative Record are not based on evidence that is derived, directly or indirectly, from the depositions of Mr. Allen or Mr. Huyghue," said the report, which was prepared by Kenneth L. Wainstein, an attorney hired to lead the probe that Emmert ordered last month.
Wainstein estimated on a teleconference that about 20 percent of the case against Miami had to be tossed because of the depositions.
According to the report and other documents released by the NCAA on Monday, Perez billed the NCAA for $57,115 worth of work performed from October 2011 through July 2012 -- though Lach and other officials were expecting the amount of her work to cost roughly $15,000. The depositions of Allen and Huyghue were performed in December 2011.
One email released by the NCAA from an investigator who worked on the case said they wanted her to depose Allen because the NCAA "did not think he would interview with us again" otherwise.
Allen was not contacted during the NCAA's external probe, which started late last month after Emmert said major breakdowns in the association's own procedures were discovered.
Another point in the report was that now-retired Associate Director of Enforcement Rich Johanningmeier bought a prepaid cellphone and paid for Shapiro's prison phone calls. The NCAA spent about $8,200 "to fund communications with Mr. Shapiro, including transfers of approximately $4,500 to his prison commissary account."
Given what the NCAA revealed Monday, Shalala made it very clear: Miami will not accept more sanctions without a fight.
"We believe that this process must come to a swift resolution, which includes no additional punitive measures beyond those already self-imposed," Shalala said.