The NCAA has admitted that certain investigative tactics used in portions of its inquiry into alleged violations of NCAA rules at the University of Miami failed its membership.

NCAA President Mark Emmert announced that the NCAA enforcement staff “acted contrary to internal protocols, legal counsel and the membership’s understanding about the limits of its investigative powers” when it hired the lawyer of former University booster Nevin Shapiro to obtain information while investigating the University’s athletic department.

While the 52-page report on the NCAA actions stated that no specific bylaw or law was broken, it concluded the NCAA’s enforcement unit had circumvented the NCAA’s legal staff’s advice when it used the services of attorney Maria Elena Perez to depose witnesses and gain information for its investigation of the University during Shapiro’s bankruptcy proceeding. The NCAA initiated the investigation of itself (conducted by Kenneth L. Wainstein, a former FBI general counsel and former assistant attorney general for national security) following the improper conduct it discovered regarding the Miami investigation.

 The report revealed:

• Perez sent the NCAA nine invoices requesting payment for the billable time she spent on the investigation between Oct. 11, 2011, and July 31, 2012. The invoices “requested a total payment of approximately $57,115,” reflecting an hourly rate of $350 for her legal work. The NCAA’s enforcement and legal staffs, however, “jointly agreed to pay a final amount of approximately $18,000.”

• The NCAA paid $8,200 to fund communications with Shapiro from jail, including the transfer of $4,500 to the prison commissary account from which Shapiro pays for the communications.

The NCAA has stated its case against the University will proceed, although information improperly obtained will not be used. University President Donna Shalala stated that the NCAA “has not lived up to their own core principles” and asserted her personal disappointment with the NCAA’s “unprofessional and unethical behavior.”

Shalala also declared the University takes full responsibility for the conduct of its employees and student-athletes. She acknowledged that where evidence of NCAA violations were substantiated, the University has acted and unilaterally eliminated opportunities for coaches and students, including playing in bowl games.

Shalala also criticized the NCAA and the status of its current investigation of the University:

Regardless of where blame lies internally with the NCAA, even one individual, one act, one instance of malfeasance both taints the entire process and breaches the public’s trust. There must be a strong sense of urgency to bring this to closure. Our dedicated staff and coaches, our outstanding student-athletes, and our supporters deserve nothing less.

The NCAA’s current vice-president of enforcement will leave by March 1 and its enforcement group would begin a review of the entire philosophy of the enforcement program.

Despite Shalala’s objections, the NCAA likely will issue its formal Notice of Allegations against the University and any individuals involved in the nearly two-year-old investigation shortly. “The intention is to move forward with this case…. There is still a lot of information that is available that has in no way been tainted by this incident,” Emmert said.


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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.