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The N.C.A.A.’s Ethics Problem
By JOE NOCERA
Published: January 25, 2013 22 Comments
In late March 2009, Yahoo Sports published a story alleging that the University of Connecticut had violated N.C.A.A. rules in its efforts to recruit Nate Miles, a 6-foot-7 basketball player from Toledo, Ohio. The N.C.A.A. enforcement staff, led by Tim Nevius, one of its top investigators, opened an inquiry.
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By then, Miles was back in Toledo; he’d been expelled from UConn in October 2008, before ever playing a game. No longer a “student-athlete,” Miles refused to cooperate. Yet Nevius interviewed Dr. Chris MacLaren, a Florida orthopedic surgeon, who had once operated on Miles’s foot. Without any consent from the patient, Nevius asked for, and MacLaren provided, details of Miles’s surgery and its costs.
This, of course, was a gross violation of medical ethics. It was also, in all likelihood, a violation of medical privacy laws. But when several lawyers involved in the case brought this potential illegality to the attention of the Committee on Infractions — which metes out punishment to rules violators, and which includes a number of lawyers — the response was coldly dismissive. A medical release from Miles “was not required,” replied Shepard Cooper, then the committee director. How did he know? Because Nevius had told him so. So much for the law.
Earlier this week, Mark Emmert, the N.C.A.A. president, acknowledged that the enforcement staff had, once again, done something deeply unethical. Except he didn’t phrase it like that. In recounting the sordid details, involving an investigation into the University of Miami, Emmert made it sound as if they were aberrations, the actions of several rogue employees who were no longer there. Describing the transgressions as “stunning,” Emmert announced that he had hired a lawyer to review its investigative practices, insisting that his goal was to ensure that N.C.A.A. investigations were consistent with “our values.”
What sanctimonious claptrap. The only thing stunning about this latest outrage is that Emmert acknowledged it. (My guess is that it was about to leak anyway.)
To recap: Nevin Shapiro, the man at the center of the Miami scandal — who is now in prison for running a Ponzi scheme — claims to have given University of Miami athletes cash, prostitutes, jewelry, “and on one occasion, an abortion” for a player’s girlfriend, according to Yahoo Sports, which broke this news as well. Incredibly, N.C.A.A. investigators engaged one of Shapiro’s bankruptcy lawyers, Maria Elena Perez, which would seem like an insurmountable conflict of interest. Then, they used her ability to conduct depositions in the Shapiro bankruptcy case to gather information it could not otherwise obtain. Though Perez insists she did nothing wrong, this is the sort of ethical breach that can cost a lawyer her license.
When I expressed astonishment at this turn of events to Richard G. Johnson, a lawyer who has tangled with the N.C.A.A., he scoffed. “This is not unusual,” he replied. “This is part and parcel of the way the N.C.A.A. does business.” Andy Oliver, a former client of Johnson’s who is now a pitcher for the Pittsburgh Pirates, became the subject of an N.C.A.A. investigation after his former lawyer violated lawyer-client confidentiality in speaking to the N.C.A.A. (Oliver ultimately won a reported $750,000 settlement.)
In the case of former University of Southern California assistant football coach Todd McNair, which I wrote about several weeks ago, the enforcement staff’s evidence against him was so dubious that a judge has ruled that he will likely win a defamation suit he brought against the N.C.A.A. In another case that I wrote about, the boyfriend of an N.C.A.A. investigator bragged that his girlfriend was going to nail a player she was investigating — months before her investigation had been completed.
Indeed, in the Miami case, this is not even the N.C.A.A.’s only ethically dubious stunt. Just before Thanksgiving, the enforcement staff sent out letters to numerous former athletes who had refused to cooperate — as is their right. The letters said that if they didn’t talk in the next few days, the N.C.A.A. would assume that they were guilty of rules violations and punish their alma mater.
“The N.C.A.A. thinks it is the 51st state,” Johnson told me. Its investigators regularly solicit the assistance of law enforcement officials, acting as if they have some kind of equal standing. But they don’t. The N.C.A.A. is not a regulatory body. It is merely an association that creates rules designed to prevent its labor force — college football and basketball players — from making any money. Most of its investigations — investigations that are selective, highhanded and a mockery of due process — are aimed at enforcing its dubious rules.
Over the last year, as I’ve stumbled across one outrage after another, I’ve wondered when someone in a position to do something about the N.C.A.A. — college presidents, maybe? Members of Congress? — would stand up and say “enough.” It’s getting awfully hard to look the other way.
By JOE NOCERA
Published: January 25, 2013 22 Comments
In late March 2009, Yahoo Sports published a story alleging that the University of Connecticut had violated N.C.A.A. rules in its efforts to recruit Nate Miles, a 6-foot-7 basketball player from Toledo, Ohio. The N.C.A.A. enforcement staff, led by Tim Nevius, one of its top investigators, opened an inquiry.
Enlarge This Image
By then, Miles was back in Toledo; he’d been expelled from UConn in October 2008, before ever playing a game. No longer a “student-athlete,” Miles refused to cooperate. Yet Nevius interviewed Dr. Chris MacLaren, a Florida orthopedic surgeon, who had once operated on Miles’s foot. Without any consent from the patient, Nevius asked for, and MacLaren provided, details of Miles’s surgery and its costs.
This, of course, was a gross violation of medical ethics. It was also, in all likelihood, a violation of medical privacy laws. But when several lawyers involved in the case brought this potential illegality to the attention of the Committee on Infractions — which metes out punishment to rules violators, and which includes a number of lawyers — the response was coldly dismissive. A medical release from Miles “was not required,” replied Shepard Cooper, then the committee director. How did he know? Because Nevius had told him so. So much for the law.
Earlier this week, Mark Emmert, the N.C.A.A. president, acknowledged that the enforcement staff had, once again, done something deeply unethical. Except he didn’t phrase it like that. In recounting the sordid details, involving an investigation into the University of Miami, Emmert made it sound as if they were aberrations, the actions of several rogue employees who were no longer there. Describing the transgressions as “stunning,” Emmert announced that he had hired a lawyer to review its investigative practices, insisting that his goal was to ensure that N.C.A.A. investigations were consistent with “our values.”
What sanctimonious claptrap. The only thing stunning about this latest outrage is that Emmert acknowledged it. (My guess is that it was about to leak anyway.)
To recap: Nevin Shapiro, the man at the center of the Miami scandal — who is now in prison for running a Ponzi scheme — claims to have given University of Miami athletes cash, prostitutes, jewelry, “and on one occasion, an abortion” for a player’s girlfriend, according to Yahoo Sports, which broke this news as well. Incredibly, N.C.A.A. investigators engaged one of Shapiro’s bankruptcy lawyers, Maria Elena Perez, which would seem like an insurmountable conflict of interest. Then, they used her ability to conduct depositions in the Shapiro bankruptcy case to gather information it could not otherwise obtain. Though Perez insists she did nothing wrong, this is the sort of ethical breach that can cost a lawyer her license.
When I expressed astonishment at this turn of events to Richard G. Johnson, a lawyer who has tangled with the N.C.A.A., he scoffed. “This is not unusual,” he replied. “This is part and parcel of the way the N.C.A.A. does business.” Andy Oliver, a former client of Johnson’s who is now a pitcher for the Pittsburgh Pirates, became the subject of an N.C.A.A. investigation after his former lawyer violated lawyer-client confidentiality in speaking to the N.C.A.A. (Oliver ultimately won a reported $750,000 settlement.)
In the case of former University of Southern California assistant football coach Todd McNair, which I wrote about several weeks ago, the enforcement staff’s evidence against him was so dubious that a judge has ruled that he will likely win a defamation suit he brought against the N.C.A.A. In another case that I wrote about, the boyfriend of an N.C.A.A. investigator bragged that his girlfriend was going to nail a player she was investigating — months before her investigation had been completed.
Indeed, in the Miami case, this is not even the N.C.A.A.’s only ethically dubious stunt. Just before Thanksgiving, the enforcement staff sent out letters to numerous former athletes who had refused to cooperate — as is their right. The letters said that if they didn’t talk in the next few days, the N.C.A.A. would assume that they were guilty of rules violations and punish their alma mater.
“The N.C.A.A. thinks it is the 51st state,” Johnson told me. Its investigators regularly solicit the assistance of law enforcement officials, acting as if they have some kind of equal standing. But they don’t. The N.C.A.A. is not a regulatory body. It is merely an association that creates rules designed to prevent its labor force — college football and basketball players — from making any money. Most of its investigations — investigations that are selective, highhanded and a mockery of due process — are aimed at enforcing its dubious rules.
Over the last year, as I’ve stumbled across one outrage after another, I’ve wondered when someone in a position to do something about the N.C.A.A. — college presidents, maybe? Members of Congress? — would stand up and say “enough.” It’s getting awfully hard to look the other way.
