The NCAA based part of its lack of institutional control charge against Miami on unknowing university officials meeting with Nevin Shapiro, according to a scathing filing asking the NCAA to dismiss its case against Miami.
In the 45-page report posted Thursday by ESPN.com, Miami asked the NCAA to dismiss the two-year old case against it.
The unprecedented request was filed Friday and reported by CBSSports.com.
Four other former Miami assistants also filed similar motions to dismiss according to multiple reports. Lack of institutional control is considered one of the NCAA's most damning charges. It can lead to severe sanctions. Miami alleges the NCAA used the fact that university advancement officials not related to athletics met with Shapiro to shape their charges. Partially based on that meeting, the filing says, the NCAA hit Miami with lack of institutional control.
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An official close to the Miami probe told CBSSports.com that the advancement officials likely didn't know Shapiro's company, Axcess Sports, was related to player representation.
"Despite the tenuous evidence to support that charge [it is debatable, at best, that the advancement officers were ever aware of Shapiro's connection to Axcess Sports], the allegation is particularly troubling because the involved advancement officers were not employees of the athletics department," the filing states.
"Rather, they were employees of the University's central advancement office and had no athletics related responsibilities ...
"Charging the University with a lack of institutional control because two administrators who had no day-to-day athletics responsibilities or expertise in the area allegedly had knowledge of Shapiro's involvement in a sports company is unreasonable, illogical and a bit ironic ...
"Under the same logic, the University's advancement officers named in the Notice [of allegations] had responsibilities limited to fundraising and thus cannot be held responsible for athletics 'concerns.' "
Among the other allegations, the filing includes assertions the NCAA investigators lied and/or misled witnesses. It also contends that NCAA president Mark Emmert violated the NCAA's confidentiality rule by talking openly about possibly applying the death penalty in the Miami case.
The filing also takes issue with the NCAA's own external report that exonerates chief operating officer Jim Isch's criticizing his lack of "culpability in the enforcement staff's engagement of" attorney Maria Perez.
Perez was used by the NCAA to extract information from two sources who would otherwise not have been compelled to speak to the NCAA. Emmert has maintained since January there were "missteps" in the Miami investigation.
The filing cites a radio appearance by Emmert on March 25 when he was asked "why, given NCAA legislation that holds head coaches accountable for the actions of assistant coaches, he was not held accountable for the impermissible and unethical investigative tactics employed by the enforcement staff during the Investigation."
The president responded by stating: "You got to think about this for a minute, [holding me accountable] is exactly like saying if an assistant coach did something wrong, the president of the University ought to be fired. ... If something happens on the shop floor of a University -- you don't fire the president of the University if somebody does something wrong."
"Such reasoning supports the University's position," the filing states, "that it is unconscionable to attempt to hold the University's institutional advancement staff accountable through a charge of lack of institutional control for the rogue actions of an individual [Nevin Shapiro] who was associated with the University on its 'shop floor.'"
The filing was assembled in part by Mike Glazier, who is representing Miami in his duties with Kansas-based law firm Bond, Schoeneck & King. Glazier is a former NCAA investigator who is considered an industry standard in trouble-shooting NCAA cases for schools.
Also mentioned in the filing as reasons for the case's dismissal:
• Discussion of death penalty by Emmert, the filing states, gave enforcement staff "carte blanche" to prosecute and tarnish the university by any means necessary.
• Investigators used the previously unknown concept of "self-corroboration". Essentially, Shapiro only had to repeat himself for an allegation to be admitted into the record.
• Delays in the two-year-old case were caused by repeated improper and unethical conduct by investigators. The filing states that in addition to former enforcement director Julie Roe Lach, NCAA investigator Stephanie Hannah was aware of the arrangement with Perez. The NCAA's external report says Hannah was not aware Perez was being paid.
• The NCAA "improperly and recklessly partnered with a convicted felon's criminal defense attorney [Perez] in direct violation of their own counsel's instructions."
• The NCAA enforcement staff repeatedly lied and misled witnesses and improperly leaked information to the media.
• The NCAA's external report overseen by attorney Ken Wainstein was "a whitewash."
• There is a reiteration that Miami should be hit no further than its self-imposed penalties that include a two-year bowl ban and withdrawal from the 2012 ACC Championship Game. Miami also initially suspended players when news broke in August 2011.
• Miami makes the case the infractions committee has the authority to dismiss the case, and also provides an example -- Pittsburgh in the 1970s, where an entire case was thrown out because evidence was fabricated.
• There is criticism of the NCAA not interviewing former AD Paul Dee before he died last year.
• Former head basketball coach Frank Haith (now at Missouri) and former assistant Jake Morton were given false information in order to elicit confessions.