Senior College Football Columnist

NCAA says Miami 'grasping at straws' in trying to get case dismissed

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The NCAA's enforcement staff responded to Miami's claims and harsh criticisms of the NCAA by lashing back, claiming that UM is "grasping at straws" in an attempt to disqualify members of the enforcement team and that it is "offended" by Miami's insinuations in regards to the case.

Those comments were made in a 42-page document that Jonathan Duncan, the Interim Vice President of Enforcement, sent to Britton Banowsky, the chairman of the Committee on Infractions in regards to the Nevin Shapiro scandal at Miami.

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"In the enforcement staff's view, the motions to dismiss are largely based on assumptions, false accusations, misleading statements and meritless claims about the enforcement staff and its investigation. For the reasons set forth below, the enforcement staff requests that the Committee on Infractions deny the motions," Duncan wrote.

Among the issues that Miami president Donna Shalala had raised in her criticism of the NCAA's handling of the Shapiro scandal -- where she called out the organization's for "unprofessional and unethical behavior" and said some of their arguments "ludicrous" and that the University of Miami had been "wronged" -- was the fact that the NCAA had never interviewed former Miami athletic director Paul Dee.

"Though the enforcement staff did not interview Dee prior to his untimely passing, it was not due to oversight or inattention," Duncan wrote. "In this case, the enforcement staff planned to and did conduct interviews relating to institutional control issues in June 2012, approximately three weeks after Dee's passing. Because Dee's death was unexpected, the enforcement staff could not have predicted that he would not be available for an interview in June 2012. Had the institution or enforcement staff known of Dee's condition or impending death, the enforcement staff would have exhausted all reasonable efforts to preserve Dee's testimony."

Duncan also defended the actions of several enforcement staff members, who the NCAA has since let go: "The enforcement staff 'self-reported' the [Maria Elena] Perez [attorney for Shapiro who was paid by the NCAA after doing that work, though she contends that she never actually was employed by the association] issue and then cooperated diligently with internal NCAA staff members and the Cadwalader firm to fully identify and disclose information related to the Perez issue. After an external investigation, those individuals found to have had culpability in the matter have been held accountable, and as a united enforcement staff, we deeply regret, have apologized for and are embarrassed by the events and circumstances," Duncan wrote. "Nevertheless, we will not stand idly by when meritless, personal attacks are launched under the broad brush stroke of 'enforcement staff misconduct.'

"... Overall, the enforcement staff believes that the institution is again grasping at straws in an attempt to disqualify members of the enforcement team with the most knowledge about the case. Not only are these personal attacks based on no evidence that would support the removal of Barnhart and Hannah from the case, they are also not a basis for dismissal of the case in its entirety."

In addition, Duncan responded to the information that former NCAA investigator Ameen Najjar had written a letter to a judge on Shapiro's behalf and about Miami's claim that the NCAA was it was accepting a self-collaboration meaning Shapiro, a man who had swindled people out of nearly a billion dollars in Ponzi schemes, only had to repeat himself for an allegation to be admitted into the record.

"Though Najjar wrote a letter that could be seen as vouching for Shapiro's credibility, it is clear that the enforcement staff took additional steps in the months ensuing to determine whether the information Shapiro and others reported was accurate. It is clear that the enforcement staff did not assume the information Shapiro reported was truthful.

"... As in all investigations, it is the responsibility of the enforcement staff at the beginning of an investigation to determine if information or statements from an individual are credible enough to move forward with a full investigation. In this case, the enforcement staff conducted over 20 interviews with Shapiro between March and May 2011 where Shapiro provided a large amount of information about numerous possible violations of NCAA legislation. In addition, Shapiro provided the enforcement staff with pictures, phone records, bank records and credit card receipts that corroborated statements made in his interviews. After Shapiro's initial interviews were completed, the enforcement staff needed to make a determination as to whether the information provided by Shapiro was credible enough to substantiate the launch of a full investigation. At that time, the enforcement staff felt that Shapiro's statements, as well as the documentation he produced, were credible enough to move forward with the investigation."

As part of his conclusion, Duncan wrote: "Based on the foregoing, the enforcement staff believes that the majority of the parties' assertions in their motions to dismiss are largely based on assumptions, false accusations, misleading statements and meritless claims. However, the enforcement staff would first defer to the judgment of the Committee on Infractions regarding whether it has the authority to act to dismiss a case prior to a hearing. If the Committee on Infractions determines that it has such authority, the enforcement staff believes that the only legitimate argument raised for such action relates to the potential violation of confidentiality involving the public release of Cadwalader report. Nevertheless, even if the Committee on Infractions believes that a violation occurred in that regard, the enforcement staff is uncertain as to any demonstration of harm that would merit dismissal of the case."


Bruce Feldman is a senior writer for CBSSports.com and college football commentator for CBS Sports Network. He is a New York Times Bestselling author, who has written books including Swing Your Sword, Meat Market and Cane Mutiny. Prior to joining CBS, Feldman spent 17 years at ESPN.
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