NCAA's position in Miami case is tenuous

January, 24, 2013
01/24/13
1:21
PM ET

If an independent investigation ordered by NCAA president Mark Emmert finds that the NCAA enforcement staff was complicit in authorizing the attorney of former Miami booster Nevin Shapiro to conduct an interview on its behalf, then the integrity of the NCAA's investigation has been compromised.

As a result, the NCAA will have opened itself up to a serious ethical violation in the manner in which it conducted this case. The hold on the notice of allegations for Miami won't directly affect the Miami football program yet, but it does push off any potential charge against former basketball coach Frank Haith, now at Missouri, for failing to create an atmosphere of compliance.

The revelation by Emmert on Wednesday has created doubt in the NCAA's ability to fully investigate the case. It could mean the NCAA's punishments may have to stop with the self-imposed sanctions Miami has already placed on its football program.

I spoke with an attorney Wednesday night who is familiar with these cases who said that the behavior of the enforcement staff was reprehensible and damaged the fairness of the process.

Paying the attorney of the person who is at the center of the case runs counter to the NCAA bylaw that deals with enforcement, which states there should be a fair procedure and that there has to be an equitable resolution to the investigation.

The attorney said that Shapiro's lawyer, Maria Perez, who denies any wrongdoing, is supposed to be a zealous advocate for her client's interests, not the NCAA's. The attorney said that in hiring any member of Shapiro's representation, there would be an inherent bias in the case.

The NCAA was supposed to notify those offending parties last week as to what they would be charged with, but now that the notice is on hold, it potentially jeopardizes the entire case.

The door is wide open as to what could occur, the attorney said. It's not merely a technical slip by the enforcement staff, the attorney said, but a fundamental flaw in the investigation. The action by the enforcement staffer, regardless of whether the person or persons are still employed, has poisoned the entire investigation.

The attorney, who has had experience handling coaches, said that whatever Haith may have been charged with -- unethical conduct or a failure to promote compliance -- will be hard to support under this scrutiny.

If there were a specific fact that was proved -- a receipt of a plane ticket or check granted, for example -- that would still hold. But any subjective penalties that deal with ethical conduct, when the NCAA didn't act in an ethical manner, will be easily challenged by Haith's representatives and any other coaches charged in a similar fashion.

The attorney said the subjective charges could be thrown out.

"The school, the university and the people who have been investigated have a very strong and substantial case to say this is wrong," the attorney said. "This whole thing should just go away."

Haith has a team to coach, and this investigation has nothing to do with Missouri's players or its athletic department. At this point, even if the NCAA is going to still charge Haith with anything, it might be best to wait another six weeks.

If it takes two weeks to finish the internal review, then the calendar will be into February and the Tigers will be on their stretch run toward the end of the regular season and heading into the postseason. Why would the NCAA choose to disrupt a season when it has already made a mockery of its own case?

Unless the NCAA is going to wipe away the case, finishing it up in March is probably more prudent.

The NCAA has a process for appeals, but it will also likely face a legal challenge for any subjective charges that arise as a result of this case, regardless of whoever is to blame for the unethical behavior by the enforcement staff.

Andy Katz | email

Senior Writer, ESPN.com

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