The future of the NCAA's case against Miami isn't the only thing in question in the wake of an external review that revealed misconduct by investigators.
NCAA president Mark Emmert, who confirmed to USA TODAY Sports the departure by March 1 of Julie Roe Lach, vice president of enforcement, called the results of the review "an embarrassment." Although Emmert said "tainted information" had been removed from the investigative record and indicated the case would move forward, Miami president Donna Shalala pushed back.
SHALALA: Miami president's strong statement
THE FUTURE: Whither NCAA enforcement?
In a strongly worded statement that appeared to be an attempt to grab the high ground, Shalala said the misconduct "taints the entire process" and called for the NCAA to wrap up the process with no penalties beyond those already self-imposed by the school.
"We have been wronged in this investigation," Shalala said.
For more than two years, the NCAA has been investigating allegations of rule violations made by former booster Nevin Shapiro, who is serving a 20-year prison sentence for running a $930 million Ponzi scheme. Miami instituted a bowl ban in each of the last two football seasons and reduced scholarships.
And regardless of what happens next to Miami, surely others are asking if they have been wronged, too – Emmert said the misconduct "failed our membership" – and what the NCAA will to do make it right.
Is the problem systemic? Have other cases been similarly tainted? According to the review by attorney Ken Wainstein of the law firm of Cadwalader, Wickersham & Taft, enforcement staff members secured the services of attorney Maria Elena Perez to glean information from depositions in Shapiro's bankruptcy proceedings. The report found the actions did not violate NCAA bylaws or enforcement staff policies, but found former investigator Ameen Najjar disregarded advice of the NCAA legal counsel, which told them not to use Perez to depose witnesses.
Najjar and Roe Lach did not return phone calls Monday. In an interview Monday with USA TODAY Sports, Emmert characterized Najjar's actions as "a novel approach," adding that enforcement staff members "knew that something like this had never been done before."
"We need to be careful not to generalize beyond the data," Emmert added. "We've got a decision here where some very bad judgment and very bad decisions were made, but that doesn't taint the entire enforcement process or the individuals involved in it."
Shalala would disagree.
Although Emmert repeatedly declined to discuss Roe Lach's departure – except to confirm it – the review found she exercised "insufficient oversight" of Najjar's actions. The review absolved other NCAA officials, including chief operating officer Jim Isch and Emmert, of blame. Isch approved paying Perez, but the review concluded "he was addressing only the fiscal issue and not any legal/prudential concerns." According to the report, Emmert didn't learn of the investigators' conduct until last fall.
As a result, only the head of enforcement rolled.
"The actions that we're taking today are clearly consistent with principles of holding people accountable for their behavior," Emmert said in a teleconference. "I'm not going to comment on any personnel actions, but again if the (NCAA's) executive committee believes that some disciplinary action toward me needs to be taken, then I'm sure they will."
The external review was limited to the Miami investigation. Emmert said part of the charge for attorney Jonathan Duncan, who has been appointed interim head of enforcement, will be to conduct a broad review of the enforcement process. But according to Emmert, there are no plans to review other pending or recently completed cases for possible malfeasance.
"As we go forward through all of this, we need to have very clear protocols to make sure evidence has been gathered appropriately and that we have confidence in that process," Emmert told USA TODAY Sports. "Up until this moment, I think everyone would say that has been the case."
The Miami case will apparently go forward. A person familiar with the NCAA enforcement staff's activities said the Notice of Allegations has been prepared and is "ready" for delivery. The person spoke on condition of anonymity because of the sensitivity of the situation.
According to the external review, information derived from the bankruptcy depositions – including information gleaned from 13 full interviews and portions of 12 more – was removed from the Miami investigative record. But in her statement, Shalala said Miami pledged full cooperation when the investigation began in September 2010 – "than two and a half years ago" – and added:
"The University of Miami has lived up to those promises, but sadly the NCAA has not lived up to their own core principles. The lengthy and already flawed investigation has demonstrated a disappointing pattern of unprofessional and unethical behavior."
The question is if the pattern goes beyond Miami. And regardless of the answer, the current perception is not positive.
Last month during a session at the NCAA Convention, "public and membership distrust of the NCAA's ability to police itself" was cited as a reason for the existence of the temporary Enforcement Working Group. In the external review, Wainstein found the action by the enforcement staff members had the potential appearance of "an inappropriate manipulation of the bankruptcy process." But as telling, he said they did not sufficiently consider "whether it was consistent with the NCAA membership's understanding about the limits" of the investigators' power.
Several other recent high-profile cases have been controversial, as well. The NCAA drew criticism from school administrators and outsiders alike for its handling last summer of Penn State for the Jerry Sandusky scandal – punishment that was unprecedented in severity and process – but that didn't involve the enforcement staff. Former USC assistant coach Todd McNair has filed suit against the NCAA for its actions in the investigation of former rule violations involving star Reggie Bush. Last fall the NCAA fired investigator Abigail Grantstein after her boyfriend was overheard providing information related to the eligibility case of freshman UCLA basketball player Shabazz Muhammad.
Emmert said he was committed to do what he could to "improve the level of confidence that people have in the way enforcement is conducted," and added:
"Perfection is not the goal here – but confidence certainly is."