A Conflicted Disciplinary Panel Cannot Render Valid Decisions
Notwithstanding its sweeping attempts to insulate itself from outside scrutiny, the NCAA cannot simply do whatever it wants. By joining the NCAA as member institutions, schools like USC and Long Beach State did not sell themselves into bondage. Among the many obligations and duties governing the relationship between the NCAA and its members, like USC and Long Beach State, is the overriding duty of the NCAA to act in “good faith.” Just exactly what that means can be a thorny issue, but generally speaking the starting point for “good faith” conduct by an association like the NCAA is to abide by its governing documents, first and foremost its By-Laws.
Because even the appearance of prejudice or bias may taint the decisions of panels charged with enforcing association rules, internal bylaws will typically forbid membership on a panel if there even a hint of prejudice. Of course, the NCAA By-Laws are no exception. By-Law 32.1.3 expressly addresses potential conflicts of interest for members of the Infractions Committee. It says that no one may serve on the COI if either that individual “is directly connected with an institution under investigation” or if he/she “has a personal, professional or institutional affiliation that reasonably would result in the appearance of prejudice.”
How does Paul Dee measure up?
Assistant football coach Joe Pannunzio was swooped up by Paul Dee after well-known incident at Murray State.
Pannunzio is at the center of the Nevin Shapiro investigation.
By virtually any standard, Dee fails in comic fashion. Dee may plead ignorance of Shapiro’s improper benefits (as he now, in fact, has), but is that credible? Consider what we know from Charles Robinson’s reporting. Shapiro was a highly esteemed member of the Miami booster community: the University named a lounge after Shapiro in the athletic offices; Shapiro was twice allowed to lead the football team out of the tunnel on game day; Shapiro was honored by Paul Dee himself at halftime of a Miami football game; and Shapiro posed with University President (and former Clinton Administration honcho) Donna Shalala in a ceremony where Shapiro presented Shalala with a check for $50,000 (presumably illegal proceeds from his Ponzi scheme). Beyond that, Dee’s hand-picked head football coach Randy Shannon repeatedly warned his players and assistant coaches to stay away from Shapiro. And, in a disturbing incident, Shapiro screamed obscenities at and attempted to start physical altercation with the head of Miami’s compliance department – yes, the head of the very compliance department which Dee had derisively bragged about to the Long Beach State senior administrators.
And, in spite of all that, Shapiro was given unfettered access to Miami football players (as well as, apparently, to recruits). The 60+ pictures posted by Charles Robinson in his Yahoo! exposé reflect only a fraction of the hundreds of pictures Shapiro has with various Miami football players in various compromising stages.
Putting aside whether Dee’s claims of ignorance pass the smell test, Dee is guilty as sin when applying anything close to the standard Dee applied to former USC running back’s coach Todd McNair and, by extension, to the entire university itself. If you remember, Dee imputed knowledge of Bush receiving “hundreds of thousands of dollars” to the entire University of Southern California by virtue of three unanswered phone calls and one 2½ minute call between McNair’s phone and Lake’s phone. Imputing the same level of knowledge to Paul Dee in the Shapiro case is simply devastating.
Nevin Shapiro presents donation check to Miami President Donna Shalala at fundraising event
Of course the Shapiro situation reveals only the most blatant example of Dee bias. Keep in mind that Dee volunteered to the media that the punishment issued to USC was largely based on the punishment his Miami program had received in the ‘90s for the entirely dissimilar Pell Grant scandal, not on any factually similar precedent. It’s also worth noting that soon after Dee handed down the stiff punishments to USC, the top lineman in the class of 2010, Seantrel Henderson, asked out of his binding Letter of Intent; upon being granted a release by USC, Henderson re-signed with… Miami.
And yet, the NCAA’s failure to act in “good faith” didn’t end with Dee. As discussed earlier, Dee’s fellow COI member Josephine Potuto is widely reported to have substantively misunderstood the evidentiary record against USC, and showed no interest in rectifying her ignorance. In addition to utilizing illegally recorded telephone conversations and coercing the lead “witness” to change his testimony regarding Todd McNair’s knowledge of the Bush payments, the NCAA compliance investigators who built the case against USC also denied representatives of USC and of Todd McNair the opportunity to “confront the accuser” (Lloyd Lake) by way of cross-examination – a fundamental aspect of American jurisprudence, which, for criminal cases, was even codified in the Sixth Amendment to the U.S. Constitution. And finally, of course, the NCAA not only purported to remove the burden from itself of having to conform its punishments to earlier precedent without establishing any guidelines going forward, but also limited the scope of its own internal “appeals” process in such a way so as to make overturning a decision of Dee’s Infractions Committee virtually impossible. None of this meets traditional standards of due or fair process – or “good faith.”
Indeed, that the NCAA calls its internal review process an “appeal” is not only misleading but a farce. Devoid of any legally recognized standards or procedures, the NCAA’s internal review process (what it calls an “appeal”) carries no more weight than the machinations by which Hertz decides that it isn’t going to waive that $75 charge for returning your rental car late on a Sunday, or, perhaps more apropos, the process a capo in the Genovese family uses to decide whether its going to lift a contract on someone’s head.
Paul Dee with University of Miami President Donna Shalala
What to do Now?
As Heisman guru Chris Huston has pointed out, the NCAA in the past has been able to get away with issuing harsh punishments while avoiding public scrutiny by effectively turning college fan bases against one another. Because significant punishments were so rarely issued, when they did come, the pleas of traumatized fan bases typically fell on deaf ears. Who exactly in the SEC was feeling sorry for Alabama? Meanwhile, sports writers and on-air personalities used NCAA penalties as soapbox moments – occasionally calling for fundamental change in NCAA rules, and sympathizing with innocent players on sanctioned teams, but never really second-guessing the legitimacy of the practices of the NCAA punishment process.
Ironically, it is the recent trend of the NCAA “finally” “cracking down” on “cheating” which has called into question the legitimacy of the NCAA investigation and punishment procedures. Instead of the rare sanction, the NCAA has spent the last 18 months conducting the most conspicuous investigations and handing down the most significant punishments since the 1980s. Clearly, the NCAA didn’t anticipate the blowback.
Nor did it recognize how thoroughly compromised the head of its Infractions Committee Paul Dee was – though it will be interesting to find out just how the NCAA went about vetting Paul Dee for Chairmanship of the Infractions Committee in the first place. Was the warden from Shawshank Redemption not available?
In any event, thanks to Charles Robinson and Nevin Shapiro, the NCAA’s disciplinary process has been revealed as a sham, and its chief cop a fraud. The USC situation itself presents a sort of triple-whammy problem for the NCAA. Not only was Dee inherently compromised (if technically “conflicted” under NCAA By-laws), his punishments diverted from all established precedent of severity and, indeed, were based (as Dee conceded) on the punishment his own program had received 15 years earlier. This is simply not the way an organization can conduct itself if it wants to maintain any semblance of credibility.
It is the severity of the punishment to USC which creates the biggest problem. Using the USC punishment as a benchmark, it will be impossible to punish Miami without shutting its football program down for several years. Of course, such a draconian measure makes absolutely zero sense. The NCAA simply cannot continue forward using the USC sanctions as precedent.
But if the USC sanctions are not a precedent, what are they? Clearly, it would seem, an aberration – an artificial concoction of a thoroughly compromised rogue.
NCAA attorney Laura Wytsma admitted in open court on
November 21, 2012 that the central piece of evidence against Todd McNair,
a 2½ minute phone call in January 2012, was “mistaken.”
There are two major steps going forward the NCAA can take to begin to repair its tattered reputation from the legacy of this corrupt rogue, while also establishing an unbiased mechanism to enforce adherence to NCAA rules – one which the public will recognize as legitimate.
First, the NCAA must vacate all remaining punishments from Dee’s Infractions Committee – rendering them a nullity. This will be an unmistakable signal to the public that the NCAA recognizes the seriousness of its problem and intends to correct it. Since Dee has now transitioned off the COI, there will be only a handful of institutions affected by the vacatur of Dee’s punishments. For these schools, the NCAA should be able to reach a prompt accommodation as to an appropriate penalty.
Second, to address future infractions, the NCAA should outsource the adjudicating panel to private, third-party arbitration. Private arbitration has proven an effect method of resolving disputes involving large institutions. Given its dismal track record, permitting the NCAA to maintain its judicial panel within the NCAA structure will inspire no confidence in the public or among its members.
Under private arbitration, the NCAA can maintain its prosecutorial wing – the compliance investigators – within the structure of the NCAA, providing a clear distinction between the “prosecutors” (who work for the NCAA) and the “judge and jury” (which operate entirely outside of the NCAA).
In anticipation of such a transition, the NCAA should establish clear guidelines for both fair process to the targets of NCAA investigations (i.e., permitting the accused to confront the accuser) as well as punishments which will be uniformly applied for various infractions.
Under such a bifurcated process with transparent, uniform guidelines, the opportunities for corruption are far less and the likelihood of another Paul Dee arriving on the scene would be far more remote.
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