Investigation and litigation are messy affairs. An entity is tasked with reviewing, calling into account and then administering punishment for transgressions -real, perceived or wholly fabricated. There are tricks, traps, feints, rule-bending and violating the ever-loving hell out of the spirit of rules designed to make an adversarial system more "fair."
By now you are familiar with the fecal meteorologic event surrounding the University of Miami/Nevin Shapiro investigation. The allegations/innuendo (and, to date, no formal Notice of Allegations have even been issued by the NCAA) are pretty horrific. Among them, it is alleged that this jock-sniffing, pyramid-scheming, mental munchkin pretty much paid for access to the program, the coaches and the Hurricane players. Want sleaze? You got it: Abortions for baby mommas, lavish gifts, cash to athletes, pay for play, strip clubs, fine dining, chartered yacht excursions. Pretty much a laundry list that would make Barry Switzer blush.
Still a soldier, yo.
The investigation, however, was temporarily suspended a few weeks ago when it was revealed that the NCAA had uncovered improprieties. An external review was, perforce, conducted to find the source of the breakdown in the NCAA's investigative and regulatory functions. As you are now aware, the NCAA engaged in behavior that usually accompanies investigations the world over; which is to say, sleazy counter-tactics. In this particular case, the most egregious offense is that the enforcement arm violated internal policy (yet no law or bylaw), when it hired outside attorneys to obtain extra-jurisdictional subpoenas in Nevin Shapiro's bankruptcy proceedings. The lack of subpoena power has long-been a thorn in the NCAA's side with respect to investigation and enforcement...looking at you, Reggie Bush.
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.
As you can imagine, the reaction was
somewhat subdued "Whoooo! HOT SPR0TS TAKES!" I swear, the national media, the blogosphere and the Twittersphere all had the same HOT SPR0TS TAKES, apparently reading off the same cue card: Emmert's gotta go. The NCAA is ethically defunct. Let's blow the whole damned thing up/open it completely up for review. Amateurism is a sham...in fact, it's slavery.
No, really. That happened.
From Andy Staples at SI.com, calling for "transparency" (read: journalist data mining for future columns excoriating the NCAA)
Clearly, the NCAA will have to alter its enforcement strategy. On Monday, colleague Stewart Mandel suggested outsourcing enforcement to an independent body. Meanwhile, NCAA president Mark Emmert tossed out the possibility of "something functionally analogous to the Senate Intelligence Committee" or a "third-party ombudsman." Those might be workable solutions, but an outside entity getting paid by the NCAA is just as beholden to the NCAA as NCAA employees are. Why not try something simpler? Keep the same enforcement staff and keep investigating cases in-house, but be open and honest about every investigation. After each case closes, release every piece of evidence gathered in the case. Put it all on the NCAA website for everyone to see.
Das Vaterland for we SEC-types, Team Speed Kills, takes the tact that Miami has suffered enough...also, Emmert should quit.
So the Miami investigation should go forward to establish the facts of the case, but the punishment should end. The university has paid enough to make an impression on players, fans and boosters, and the NCAA investigation is too corrupted for any sanctions that come from it to be trusted. The NCAA is supposed to be in the justice game, not the vengeance game, and there is no way justice can come from an unjust investigation.
And because of that and everything that went wrong on his watch, Mark Emmert should resign.
Adam Kramer, from Bleacher Report, even while acknowledging the CEO function of the NCAA presidency, concludes that Emmert has to go and blow up the enforcement arm of the NCAA:
Removing Emmert won’t solve the NCAA’s woes, at least not right away. The entire enforcement program needs the dynamite treatment and a dramatic overhaul for it to be productive once again. And truly, it never had it right. This will take years to accomplish, forward thinking and new direction.
When the COI has ruled, then you have my permission to reduce scholarships.
More of the same from, Dennis Dodd at CBS Sports: Fire Emmert, and probably Isch, because the fix is in:
Emmert must step down because if he didn't know all of this, he should have. Roe Lach was his hand-picked director of enforcement. She was only the sixth enforcement director in the six-decade history of the process -- and the first woman. To believe that any NCAA vice president could go down to a pay window and grab $20,000 to hire an outside attorney suggests fundamental cultural problems at the NCAA.
It's there in the report that Isch, NCAA chief operating officer and Emmert's No. 2, authorized the expenditure but didn't ask the right questions -- if any questions. Again, what other company -- besides perhaps Enron -- doesn't vet that kind of expense? Isch, it would seem, is as much to blame as his boss.
Amateurism is a malignant tumor; it infects everything that it touches. When your organization is predicated on unpaid labor, it's forced to use underhanded tactics to attempt to root out violations of that policy because there's no legal way to accomplish the goal of maintaining that unpaid labor force. The NCAA is a plantation, and when you run a plantation there's no way that you'll have clean enforcers.
But it was Matt Hayes at AOL/Sporting News, and his CEO accountability mantra that really struck home to me:
When asked Monday during a conference call if he should bear responsibility for the NCAA’s mishandling of the case, Emmert said, "I report to the executive committee. If they believe action should be taken toward me, they are free to do that."
At this point, what other conclusion can be reached?
Hayes was much more strident in his Twitter feed, which was revelatory in that he's obviously no understanding of how business works:
<blockquote class="twitter-tweet"><p>Jim Isch, No.2 at <a href="https://twitter.com/search/%23NCAA">#NCAA</a>, approved payment to Shapiro's attorney. Yet Emmert didn't know.</p>— Matt Hayes(@Matt_HayesSN) <a href="https://twitter.com/Matt_HayesSN/status/303584060893179905">February 18, 2013</a></blockquote>
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<blockquote class="twitter-tweet"><p>In 99 out of 100 companies, what legal says goes. Apparently, not with <a href="https://twitter.com/search/%23NCAA">#NCAA</a> -- and a couple rogue investigators. Yeah, that's believable.</p>— Matt Hayes(@Matt_HayesSN) <a href="https://twitter.com/Matt_HayesSN/status/303592955460079616">February 18, 2013</a></blockquote>
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All of this ink spilled, yet no one seemingly has the vaguest notion of what the NCAA undertakes. At its heart, the NCAA regulates students. They ensure kids go to class, that they pass their courses, that they earn an education, that they emphatically do not earn cash under pay-for-play schemes (licit or otherwise), that they were even eligible to attend college to begin with, that championships are held. Would you like to know what its mission has been described as, from fairly passing authorities? Two quotes here, and a hint: one is from Emmert; one is from Supreme Court Justice John Paul Stevens:
"They are not employees, they are students. We want them to be students, and we expect them to be good students. That's really the line in the sand that I'm drawing. This isn't about the resources. This is about, 'Do they work for us? Or are they our students?' They're our students."
"In order to preserve the character and quality of the 'product,' athletes must not be paid, must be required to attend class, and the like."**
Still, beside two passing analogies, our arbiters of "public trust" fail to see the NCAA for what it is. Beyond the aspirational mission (and the NCAA is very good, by and large, at the myriad of tasks that it does), the NCAA is a non-profit corporate entity. In that capacity, it had a revenue stream of $871.6 million for FY 11-12, "most of which came from the rights agreement with Turner/CBS Sports." (read, Division I Men's basketball tournament). The pundit class cry "look at all of the profit! RABBLE RABBLE RABBLE," yet never look to see where the revenues go. Let's do that now, shall we. (SPOILER: 90+% of the revenue goes directly back to member institutions, with Division I athletics receiving the lion's share, at 60%). In fact, the administration/overhead costs for the NCAA is an outstanding 4%. Compare it to other non-profits: Susan Komen (7.6%), American Cancer Society (6.8%), Children's Literacy Initiative (8.6%), NAACP (10.7%). That is stretching a budget, folks.
As a corporation, the NCAA (and its subsidiary LLC) has over 400 employees -many overworked, overloaded, underpaid and understaffed. The corporate structure is, to put it kindly, exceedingly difficult. There are member institutions, presidents, third party vendors, independent contractors, review commissions, media, finance, legal, advertising, regulatory, research...oh, and over 125 separate committees, of which, the Committee on Infractions is but one.
Want to see an organizational chart? Good luck with that. But, for reference, here is an organizational chart for the University of Texas Longhorns Athletics...for women only.
I actually just read all of this...beer me.
Mildly framed, the NCAA has an elaborate hierarchy. This is to be expected from an entity with hundreds of employees, hundreds of millions of dollars in revenue, 1,000 member-institutions and nearly half-a-million student athletes in any given year: Many people report to many other people, who report to many other people, who bully many nameless cogs, and then a valuable TPS report gets generated. The President, Mark Emmert, is the chief executive. Do you know a chief executive who personally signs the checks of a one billion-dollar corporation? Of course not. Does any CEO sign a $19,000 check for a company with over $800,000,000 of revenue? Don't be fatuous...it doesn't work that way: Payroll, benefits, accounting, comptrollers and financial officers do that. Chief executives make policy decisions, not micromanage minuscule fractions of one percent of the budget of just one committee of 125 such-similar committees.
Yet, somehow, we have an echo chamber all crying "bullshit" over the actions of a few persons in legal/compliance? That one of Emmert's subordinates may or may not have known the actions of his subordinate, who may not have known the actions of one of his subordinates, who may or may not know the intentional malfeasance of her subordinates, whose staff in turn may have violated internal policy? Therefor, the logic goes, fire Emmert. Give me a break. It doesn't work that way ("it" being the actual world).
And this brings us to the issues of corporate structures and investigative bodies. "Legal" is not, as Hayes suggests, the ones who tell the corporation how to behave. In fact, it is the other way around. I will use my outside voice for this point: In the majority of jurisdictions in this country, every attorney working for a corporation is both an employee of that company and has that company as its client. The attorney owes his duty of loyalty to the company; her duty of confidentiality to the company. The company, as the client and as the employer, calls the shots; not the other way around. This concept is either profoundly misunderstood or profoundly misrepresented in all of these HOT SPR0TS TAKES. Moreover, when a client tells you "make this happen," in a corporate or governmental environment, your options are two-fold: Make it so within the boundaries of the law and your ethical obligations or hit the road.
The NCAA ignored their own legal advice? Oh, goodness. That never happens in the real world. There was inconsistent advice from different factions within Compliance, and some supervisors took the advice that furthered their own interests. The horror! Then, the thing blows up, and a subordinate gets their walking papers? How unjust.
What really happens is predictable, and is precisely what happened here: A PR screw up of the first order occurs, or the entity fails to heed their own internal advice, a review is conducted, the original source is found to blame, and the superiors keep their jobs. When you embarrass the company, when you embroil the administration in scandal, or when you fail to provide your client/employer with the results they need, without violating law, then you are the one who gets fired: not the CEO, or the President or the District Attorney. So, see ya', newly-terminated Enforcement Boss, Julie Roe Lach.
Yet, somehow, in the face of factual determinations yet to be made, in light of prevailing law, by laws, and attorneys' obligations to their corporate clients, despite the complex and multi-tiered institution of the NCAA, we are meant to jump the nefarious conclusion, nay -be badgered into the conclusion- that Emmert knew or should have known of the actions of a subordinate several pay grades below him, and whom did not report to him directly? Not by a long shot. Emmert did what everyone does: Someone screwed the pooch, that someone is getting fired. That's how governments function. That's how businesses function.
Still, we're subjected to identical holier-than-thou talking points, journo-scolds bandying about phrases like "trust," "accountability," "scapegoat," "blind eye." That is easy. That is lazy. That is cheap. We are ultimately dealing with investigation and litigation here. Neither of which are easy or pleasant to behold. These HOT SPR0TS TAKES are the kids you invite to your birthday party who then promptly break all of your toys. They are anarchists who want to be on the revision committee for Robert's Rules. They are gleeful arsonists who want to torch the house of amateurism and, as it burns, exclaim "why did you let it get so hot?"
What's so damning in all of this, is the NCAA actually tried to handle this in a way to engender some degree of accountability. It sought outside counsel; it sought outside review; it identified the responsible parties; it provided the findings to entire nation despite the scrutiny and criticism it knew it would face; and, yes, it fired the right people.
Sports scribes want transparency? Well, they got it. The truth is ugly, and frankly if this is any indication of how they react, they can't handle it. The journos want to hold the NCAA to the same standards as everyone else? Fine. What the NCAA and Emmert did in the face of internal malfeasance was exactly what corporate America and governmental bodies already do: Fire people who screw up.
Want accountability and trust? Quit looking for more; it's right beneath your noses. Were the tactics sleazy? Sure. But sleaze isn't a violation of the law or the NCAA's by-laws. Does the NCAA need some tweaking and consistency with enforcement? Of course, and they are trying to do just that thing. But, at its core, the NCAA is fine, Emmert is fine. No laws were broken, no by-laws were broken. If you want to take issue with anything, take issue with the fact that the institution behaved as any other corporation or governmental body does when the bodies hit the floor.
*Without fully addressing the whole-cloth absurdity of comparisons to chattel slavery and athletic scholarships, it is enough to say that the literal millions of NCAA student-athletes from 1951 to the present were not transported from another continent against their will, physically broken, mentally beaten, families torn asunder and subjected to the barbarism of slavery. Post-secondary education, the terms upon which it is funded, and membership in the NCAA is still a voluntary undertaking in America. We've never fought a shooting war over whether or not a 5-star WR from Charleston must be subjugated for the benefit of the Gamecocks.
** Mark Emmert, Justice Stevens