Rton NATIONAL COLLEGIATE ATHLETIC ASSOCIATION Case Number M362 University of Miami (Florida) Motion to Immediately Conclude Case Number M362 as it Relates to the University of Miami Mike Glazier, Esq. Kieran Piller, Esq. Bond, Schoeneck, & King, PLLC 1 Aileen Ugalde, Esq. Judd Goldberg, Esq. Office of the General Counsel
TABLE OF CONTENTS University of Miami I. Introduction 4 II. The COI has Authority to Dismiss the Case...... 7 Page III. Argument 1) The Enforcement Staff s Impermissible Conduct and Mismanagement are to Blame for the Unconscionable Length of the Investigation... 8 a) The Enforcement Staff Engaged in Unethical and Impermissible Investigative Tactics.. 9 b) The Investigation was Plagued by Incompetent Management and Enforcement Staff Personnel Turnover.. 11 2) Student 1 s Interview should have been Expunged from the Record and Barnhart has Misled the University as to the Circumstances Surrounding Student 1 s Interview.....15 a) Background as to the Student 1 Interview. 15 b) Cadwalader Failed to Consider that the Student 1 Interview was Tainted 16 c) The University s Inquiry into the Possibility that Student 1 s Interview was Tainted was Dismissed by Barnhart 18 3) Brody Waters September 12, 2012 Interview was Excluded from the Record even though it Contains Exculpatory Material with no Explanation to the University as to why it was Excluded. 21 4) The Enforcement Staff Disregarded the Agreement between the Former Vice President of Enforcement and the University s Former Athletics Director and Commenced Interviews with Nevin Shapiro without Informing the University. 23 5) The University did not Condone the Perez Plan and was Materially Misled as to the Details of the Perez Plan... 24 6) The Tactics Employed During the Questioning of Frank Haith and Jake Morton were Impermissible and Unethical 27 a) The Enforcement Staff Misled Jake Morton During his September 19, 2012, 2
Interview..28 b) The Enforcement Staff Misled Frank Haith During his September 5, 2012, Interview. 29 7) The Timing of the Enforcement Staff s Conclusion that Student 2 had Received Impermissible Extra Benefits is Highly Suspect... 30 8) Hannah s Involvement with Perez was More Extensive than that Disclosed by the Cadwalader Report thereby Requiring Her Disqualification from this Case.. 33 9) The Notice of Allegations Contains Allegations that were not Substantiated by any Credible Party and the Enforcement Staff Recognizes Self-Corroboration as an Appropriate Evidentiary Standard. 36 10) The Enforcement Staff s Charge of Lack of Institutional Control Attempts to Condemn the University on Logic that was Employed to Exonerate NCAA Administrators for their role in the Perez Plan.. 40 IV. Conclusion... 43 3
MOTION TO IMMEDIATELY CONCLUDE CASE NO. M362 AS IT RELATES TO THE UNIVERSITY OF MIAMI Pursuant to National Collegiate Athletic Association (NCAA) Bylaw 19.1.3, and in the interest of fairness and keeping with both the letter and spirit of the rules that bind the University of Miami (the University) and the NCAA, the University respectfully requests that the Committee on Infractions (the COI) employ its broad discretion and authority and immediately conclude this case as it relates to the University. In support of this Motion, the University states as follows: I. INTRODUCTION Following the leveling of sensationalized accusations by Nevin Shapiro a convicted felon who masterminded a $930 million Ponzi scheme the NCAA launched an investigation (the Investigation) of the University that was corrupted from the start. Specifically, at the onset of the Investigation, the NCAA went on record discussing the possibility of a death penalty sentence against the University. 1 The NCAA s vocal and well-publicized discussion of the death penalty in connection with the University, prior to obtaining any competent evidence, had the consequence of leading the enforcement staff to mistakenly believe that they had carte blanche to prosecute and tarnish the University by any means necessary, including those that are inappropriate and unethical. This culminated in a Notice of Allegations (the Notice) filed against the University that was based, in large part, upon the enforcement staff s adoption of a preposterous standard of evidence self-corroboration one that is all the more offensive given that the self is a convicted swindler. By the NCAA s own admission, investigations such as this one are expected to be completed within a year. See Julie Roe Lach November 2, 2011 statement to the Miami Herald. However, the Notice in this case was not issued until February 19, 2013, nearly two years following the start of the Investigation. The unconscionable delay in issuing the Notice was 1 Indeed, the NCAA s reference to the death penalty in connection with the University went viral, with approximately five hundred (500) stories being published in the span of ten days. See, e.g., Death Penalty Could be on table for Miami, Denver Post, Aug. 19, 2011; Could the University of Miami be facing the so called Death Penalty?, ABC Action News, Aug. 19, 2011; Hurricanes could be facing death penalty, The Hutchinson News, Aug. 20, 2011; Miami Hurricanes football scandal comes after SMU received NCAA death penalty, The Huffington Post, Aug. 21, 2011. 4
largely caused by the enforcement staff s repeated improper and unethical conduct throughout the course of the Investigation. Specifically, the enforcement staff: Pre-judged Shapiro s truthfulness before obtaining any corroborating evidence or interviewing any current or former student athletes or coaches by submitting a letter to Shapiro s sentencing judge vouching for his credibility and expressing an interest in hiring him as a consultant. Improperly and recklessly partnered with a convicted felon s criminal defense attorney, Maria Elena Perez, in direct violation of their own counsel s instructions. Despite the fact that the Investigation was wholly unrelated to Shapiro s debts, the enforcement staff, through Perez, misused the discovery rules for the bankruptcy court of the Southern District of Florida to coerce uncooperative witnesses to answer the staff s questions (the Perez Plan). Intentionally misled the University on multiple occasions by withholding key information, failing to inform the University of scheduled interviews, and, most egregiously, lying to the University and its outside counsel. Also, the enforcement staff repeatedly lied to and misled witnesses. All of this was done in direct violation of the NCAA s bedrock principles of honesty, integrity and cooperation, as well as the enforcement program s commitment to fairness of procedures, as articulated on the NCAA s own website. Made staffing decisions that led to constant turnover and vested inexperienced investigators with responsibilities and authority in one of the NCAA s most high-profile cases. Improperly leaked information to the media in direct violation of the NCAA s confidentiality rules and regulations. Information known only to the enforcement staff and its agents, repeatedly appeared in the media. 5
As a result of the enforcement staff s blatant disregard for its own rules and regulations, the NCAA leadership itself directed that all information stemming from the partnership with Perez be removed from the final record and not be used in any manner against the University. In addition, the egregious conduct caused the NCAA to stay the Investigation in January 2013 2 and commission the law firm of Cadwalader, Wickersham & Taft LLP ( Cadwalader ) to conduct an inquiry into the enforcement staff s conduct. Prior to the Cadwalader firm conducting its inquiry, in October 2012, the enforcement staff allegedly scrubbed its records of all tainted information. On February 18, 2013, Cadwalader released its Report on the NCAA s Engagement of a Source s Counsel and Use of the Bankruptcy Process in the University of Miami Investigation (the Cadwalader Report). The Cadwalader Report concluded that the enforcement staff had properly removed all tainted material from the record. As discussed in great detail below, this is an erroneous conclusion, as a key witness interview that was obtained as a direct result of the enforcement staff s impermissible arrangement with Perez remains in the investigative record. Furthermore, the Cadwalader Report s findings exonerating numerous enforcement staff members who continue to spearhead the processing of the University s case in the face of overwhelming incriminating evidence relating to their conduct appears to be nothing more than an attempt to whitewash the extent of the enforcement staff s systematic violations of the most basic principles of ethics, fairness and the NCAA s own internal rules. In exonerating members of the enforcement staff, the Cadwalader Report failed to consider numerous facts and pieces of documentary evidence. Upon review of the Notice and the record evidence set forth herein, the University respectfully asks for the immediate conclusion of its involvement in this case. The University is not asking for a windfall or quick escape. To the contrary, largely because of the NCAA s misconduct and mismanagement, this matter has languished for twice as long as it should have, to the University s detriment. The University submits that: (i) the substantial penalties it already has self-imposed, including a two-year postseason bowl ban, and withdrawal from participation in an Atlantic Coast Conference (ACC) championship game; and (ii) the detrimental 2 Despite knowing of the misconduct since September 2012, the NCAA waited three-and-a-half months to inform the University and other impacted parties. 6
consequences it has endured as a result of the leaks set in motion by the enforcement staff s retention of Perez are more than sufficient punishment and that, as such, no additional penalties should be levied against the University. In addition, should the NCAA grant the requested relief, the University will stipulate to any properly corroborated allegations. 3 II. THE COI HAS THE AUTHORITY TO DISMISS THE NOTICE NCAA Bylaw 19.1.3 expressly lists the duties of the COI. Among those duties, NCAA Bylaw 19.1.3-(e) grants the COI the authority to carry out any other duties directly related to the administration of the Association's enforcement program. This affords the COI broad discretion to take appropriate action to ensure that the enforcement program is properly managed and that the enforcement staff operates within the framework of the NCAA Bylaws and principles. The enforcement staff s conduct and the integrity of the investigative tactics it employs are undoubtedly directly related to the administration of the Association s enforcement program. As a result, when the enforcement staff consistently employs deceitful investigative tactics that contradict the NCAA s fundamental principles of honesty, integrity and cooperation, the COI has the authority under NCAA Bylaw 19.1.3-(e) to immediately conclude a case. The NCAA is an unincorporated association comprised of member institutions that, among other things, have voluntarily agreed to have their conduct and actions supervised and enforced by the association. However, that requires the member institutions to have utmost confidence and faith in the NCAA s enforcement program; two factors which are in dire need of restoration given the enforcement staff s conduct throughout the Investigation. Holding the enforcement staff accountable for its indefensible actions by immediately concluding this case against the University would represent a positive step towards restoring the membership s confidence in the enforcement program. The requested relief finds additional support in a case processed in the late 1970s that involved the University of Pittsburgh. The lack of a specific record of the case in NCAA archives (apparently because of its dismissal) makes it difficult to provide explicit detail, but individuals involved in the enforcement program at that time recall that the case was dismissed by the COI on the basis of a finding that evidence had been fabricated by a member of the 3 The University is prepared to have additional conversations with the COI should the NCAA grant the requested relief. 7
NCAA staff. The specific information that was found to be fraudulent impacted an individual allegation but the finding so undermined the COI s confidence in the enforcement staff s evidence that the entire case was dismissed. In the University s case, the scope of misbehavior by the enforcement staff equals or exceeds the concerns that led to the dismissal in the Pittsburgh case. Accordingly, the University asks that the COI utilize its authority and established precedent to immediately conclude the present case against the University. III. ARGUMENT The Investigation was corrupted from the start. Almost immediately, the NCAA s senior leadership went public with statements regarding the potential applicability of the death penalty. These statements were made before any substantive investigation had occurred and long before any such statements could possibly be based on any competent evidence. Once the case had been inappropriately pre-judged at the highest level, the enforcement staff was emboldened and perhaps, tacitly encouraged to engage in a pattern of bad faith behavior that did not comply with the NCAA s rules and principles so as to nail the University. The Investigation was not a bona fide inquiry into determining what transpired; instead, it immediately deteriorated into a witch hunt predicated on a convicted felon s delusional desire for revenge. The damage wreaked from such misbehavior was exacerbated by the gross incompetence and mismanagement of the enforcement staff. 1) The Enforcement Staff s Impermissible Conduct and Mismanagement are to Blame for the Unconscionable Length of the Investigation The enforcement staff began investigating the University in February 2011 when Shapiro contacted then Associate Director of Enforcement Rich Johanningmeier from prison and made specific allegations of NCAA rules violations occurring within the football and men s basketball programs at the University. On March 31, 2011, Johanningmeier conducted a telephone interview with Shapiro the first of 19 interviews that the enforcement staff conducted with Shapiro during the spring of 2011, all without informing the University, let alone inviting it to participate. The enforcement staff did not issue the Notice until February 19, 2013 two entire years after it commenced the Investigation. 8
Investigation. The enforcement staff s actions are directly to blame for the unreasonable length of the First, the Investigation was unconscionably delayed as a result of the impermissible investigative tactics employed by the enforcement staff. Second, mismanagement led to consistent personnel turnover in the investigators working on the case. These factors are discussed below: a) The Enforcement Staff Engaged in Unethical and Impermissible Investigative Tactics. As detailed in the Cadwalader Report, the enforcement staff first began considering a plan to retain Perez in order to depose witnesses who would not cooperate in the NCAA s Investigation in September 2011. The enforcement staff then spent much of October 2011 attempting to secure funding for the plan and to obtain the NCAA s legal department s approval of the plan. On October 25, 2011, the NCAA s legal staff informed the enforcement staff that it could not move forward with the Perez Plan because it would be an inappropriate circumvention of the NCAA s investigative limitations (See Cadwalader Report, p. 18). The enforcement staff then spent the remainder of October 2011 and much of November 2011 devising and implementing a way around its own legal department s advice in order to retain Perez. After reaching an agreement with Perez, the enforcement staff then dedicated a significant portion of its time and resources in December 2011 on coordinating the depositions of Sean Allen and Michael Huyghue with Perez and preparing questions for Perez to ask in those depositions. Id. at 21-22. In all, the enforcement staff spent approximately four months misusing its time and resources to planning the illegitimate depositions of uncooperative witnesses rather than dedicating those resources to legitimate investigative means. The enforcement staff delegated responsibility in the Investigation by differentiating between the basketball and football investigations. 4 From the time Allen was deposed on 4 Director of Enforcement Ameen Najjar, Associate Director of Enforcement Rich Johanningmeier, and Assistant Director of Enforcement Brynna Barnhart were assigned the football investigation. After Najjar s dismissal and Johanningmeier s retirement in May 2012, Barnhart became the driving force behind the football investigation. Molly Richman, an Assistant Director of Enforcement, joined her, and Stephanie Hannah, a Director of Enforcement, was assigned to oversee Barnhart and Richman. Prior to her dismissal in December 2012, Abigail Grantstein, a former Assistant Director of Enforcement, took the lead in conducting interviews connected to the basketball investigation. 9
December 19, 2011, to May 1, 2012, 5 the only interviews that the enforcement staff conducted in regard to the allegations of violations within the football program were directly related to information that the NCAA obtained through its impermissible manipulation of the federal bankruptcy court. 6 Essentially, from December 2011 to May 2012, in carrying out the impermissible depositions and following-up on information obtained as a result of the impermissible depositions, the enforcement staff gathered no proper evidence in its football investigation. This was an additional five month period without any legitimate investigative activity by the enforcement staff. Although the enforcement staff resumed the football investigation after May 1, 2012, by interviewing individuals in regard to information that was not impermissibly obtained through the depositions, they continued to follow leads based upon tainted information provided by Allen. In all, from June 7, 2012 to August 14, 2012, the enforcement staff conducted 14 interviews that were prompted solely by information that Allen had provided them, diverting the enforcement staff s attention from investigating legitimately obtained information for another four months. 7 Furthermore, on August 2, 2012, Perez sent Stephanie Hannah, the Director of Enforcement who took over as manager of the football portion of the Investigation in May 2012 following Najjar s dismissal from the NCAA, nine invoices for $57,115 for billable time she expended related to the depositions and attempted depositions. Hannah, Managing Director of Enforcement Tom Hosty, and then Vice President of Enforcement Julie Roe Lach then spent August and September 2012 analyzing Perez s invoices and the propriety of some of the charges. Cadwalader Report, p. 24. On September 28, 2012, Hannah presented the invoices to the 5 On May 1, 2012, the enforcement staff interviewed Witness 1, father of then student-athlete Student 6. Witness1 was interviewed regarding information provided by Shapiro, Student 6, then student-athlete Student 7, Student 8, Witness 2, and Witness 3. 6 The Cadwalader Report s summary conclusion that the enforcement staff s retention of Perez did not violate federal bankruptcy rules is belied by the fact that, on March 5, 2013, the Chief Judge of United States District Court for the Southern District of Florida issued an Order of Reference to the district court s Attorney Grievance Committee asking for a recommendation as to whether Perez acted unethically and, if so, whether any discipline should be imposed. See Exhibit 1. 7 Those interviews were as follows: Student 9, two interviews with Witness 4, Witness 5, two interviews with Witness 6, Witness 7, Witness 8, Student 10, Student 11, Student 12, Student 13, and Witness 9. 10
NCAA s legal staff. 8 Learning that the enforcement staff had retained Perez s services against its advice, the legal staff instructed the enforcement staff to discontinue all work with Perez. Then, for the remainder of 2012, the enforcement staff spent a significant amount of time settling final charges with Perez and reviewing the Miami investigative record, purportedly to remove any information obtained directly or indirectly from the improper December 2011 depositions. This consumed a sizeable amount of the enforcement staff s time until the NCAA ultimately disclosed the enforcement staff s improper conduct with Perez to the media in a January 23, 2013 press release. Id. at 25-26. In all, dealing with Perez s legal charges and cleansing the investigative record diverted time, energy, and resources away from processing the Investigation for an additional four months. In total, for nearly 17 months of a 24-month Investigation, the enforcement staff made no progress in the football investigation or at a minimum operated far below optimal efficiency because the collateral effects of the illegitimate investigative tactics diverting its full attention from the Investigation. b) The Investigation was Plagued by Incompetent Management and Enforcement Staff Personnel Turnover. On numerous occasions, the Cadwalader Report referred to the Investigation as one of the NCAA s most significant investigations. See Cadwalader Report, p. 40. Despite the gravity of the case and the public visibility and scrutiny that followed an August 2011 Yahoo! Sports article that documented Shapiro s sensationalized allegations of rules violations occurring within the University s football and men s basketball programs, the enforcement staff failed to make prudent staffing decisions. Evidence to support this claim can be found in the Cadwalader Report s conclusion that enforcement staff managers failed to exercise close oversight of Mr. Najjar s activities. Id. Further evidence of the mismanagement of the enforcement staff throughout the Investigation can be found in the turnover of staff assigned to work on the case: Ameen Najjar. Najjar s employment with the NCAA was terminated in May 2012. While the details surrounding Najjar s dismissal have not been publicly disclosed, based upon the details in the Cadwalader Report, his dismissal was not related to his decision to 8 Notably, the NCAA did not advise the University that the enforcement staff had disregarded the advice of the NCAA s legal department until January 10, 2013, 3 and ½ months after the fact. 11
disregard the advice of the NCAA s legal department. Even more troubling than Najjar actually following through with the Perez plan was that Najjar, who was in charge of supervising the lead investigators (Johanningmeier and Barnhart) in the case, lacked the judgment and perception to even consider that the enforcement staff was over-reaching its authority with the Perez Plan. See Cadwalader Report, p. 37. That Najjar participated in conduct separate and apart from this egregious abuse of discretion and authority that forced the NCAA to terminate his employment in May 2012 indicates a pattern of improper, unethical, or incompetent behavior on his part that undermines the confidence the University has that Najjar ever satisfactorily handled his responsibilities as a supervisor in connection with the Investigation. It is of note that Najjar also wrote a glowing letter of support on behalf of Nevin Shapiro to the judge presiding over the criminal proceedings vouching for Shapiro s credibility before a single interview had been conducted in the Investigation. See Exhibit 2. That Najjar could represent to a judge that a convicted swindler was a credible individual before a single interview corroborated Shapiro s assertions defies any logical explanation and confirms the enforcement staff s stubborn refusal to acknowledge the possibility that Shapiro might not be telling the truth a belief that it still holds to this day. The enforcement staff s blind faith in Shapiro is the only plausible explanation for Najjar s indication in the same letter that the NCAA was considering retaining Shapiro as a consultant. 9 Abigail Grantstein. Grantstein s employment with the NCAA was terminated in December 2012. Up to that point, Grantstein had served as the lead investigator in the basketball portion of the Investigation. The circumstances surrounding Grantstein s dismissal exemplify the enforcement staff s prevailing attitude of guilty until proven innocent an attitude that has been on display throughout the Investigation. Grantstein was terminated for conduct related to her investigation of a current men s basketball student-athlete s amateur status. In that case, Grantstein s boyfriend disclosed to 9 The Cadwalader Report fails to evaluate or even mention the letter despite discussing in detail a letter that counsel for Shapiro s bankruptcy trustee wrote to the sentencing judge just three days after Najjar s letter (documenting Shapiro s work in assisting the bankruptcy trustee in the recovery of funds). See Cadwalader Report p. 36. Once again, this casts serious doubt into the thoroughness and impartiality of the Cadwalader Report. 12
passengers on an August 2012 commuter flight that Grantstein had told him that she knew that the student-athlete was dirty and that she was going to get [him]. Grantstein s boyfriend told passengers that he could guarantee that the student-athlete would not play during his freshman season. Grantstein had expressed these opinions to her boyfriend despite the fact that she had not yet received or reviewed financial documents relevant to the investigation of the student-athlete s amateur status or interviewed key parties to the investigation. See Exhibit 3. Grantstein s mindset of attempting to get subjects of NCAA investigations rather than to develop full and unbiased evidence that aids in a determination of the truth greatly concerns the University because, as discussed in Item 6 of this Argument Section, Grantstein displayed this attitude in her questioning of Investigation witnesses. Furthermore, it appears that this desire to get member institutions, coaches, and student-athletes was instilled in Grantstein by her supervisors. Rich Johanningmeir. At the commencement of the enforcement staff s Investigation, it was common knowledge within the enforcement staff that Johanningmeier s retirement was imminent. Given the volume and gravity of the allegations alleged, the enforcement staff was aware that the Investigation would require a substantial time commitment. Proper management would have dictated assigning an investigator to Miami s case who was in a better professional position to dedicate the necessary time and who was more likely to remain with the enforcement staff until the conclusion of the Investigation and through the processing of the case. Nevertheless, Johanningmeir was assigned as lead investigator from February 2011 into the summer of that year. 10 The mismanagement of the enforcement staff and the personnel turnover stalled the Investigation as replacements had to familiarize themselves with the expansive investigative record. Also inexperienced investigators being vested with responsibilities and authority in one 10 In the spring of 2011, Johanningmeier led what was essentially a solo effort in investigating the University, as he conducted 19 interviews with Nevin Shapiro. In the summer of 2011, the enforcement staff restructured to take more of a team approach in the Investigation and, as documented in the Cadwalader Report, Johanningmeier withdrew from active involvement in the case. Despite this demonstrated disinterest in the case, Johanningmeier remained as a lead investigator until May 2012. The University is gravely concerned that one of the lead investigators in the case was allowed to essentially shirk his caserelated responsibilities for almost an entire year. This is certainly additional evidence of severe mismanagement. 13
of the NCAA s most high profile cases led to further inefficiencies in the case. Barnhart, who had less than three years of experience on the enforcement staff at the commencement of the Investigation, was the driving force behind it from the summer of 2011, when Johanningmeier withdrew from active involvement in the case. 11 14 Furthermore, prior to joining Barnhart as a lead investigator in the Investigation, Molly Richman had virtually no experience working on major infractions cases (Richman was working in an arm of the enforcement staff that had no responsibilities in processing major infractions cases when she was reassigned). The wisdom of assigning such inexperienced employees to lead what the Cadwalader Report proclaimed as one of the NCAA s most significant cases is perplexing and undoubtedly led to inefficiencies that precluded the University from receiving a timely resolution of the Investigation. The most damaging result of the prolonged Investigation may be the enforcement staff s failure to interview Paul Dee, the University s Athletics Director during the relevant time and a former member and chair of the COI. Dee could have provided the enforcement staff with invaluable insight into the University s relationship with and monitoring of Shapiro. Unfortunately, Dee passed away in May 2012, without ever having been afforded the opportunity to provide the enforcement staff with his perspective. At the time of Dee s death, the enforcement staff s investigation of the University had already been active for 14 months. An efficient and pragmatic investigation would have made interviewing an individual like Dee who was so knowledgeable about the University s athletics and compliance programs and so respected in the collegiate athletics landscape a top priority. The lengthy Investigation, which was directly related to the impermissible investigative tactics and mismanagement of the Investigation, led to other damages, none of which the Cadwalader Report chose to address. These include, but are not limited to: (1) the excessive amount of time, energy, finances, and resources that the University has devoted to the Investigation; (2) the cloud of uncertainty hanging over the University s football and men s basketball program for the last two seasons (and possibly a third); and (3) the media stories that have irretrievably besmirched the reputation of the University s head football coach, Al 11 The Cadwalader Report identified Najjar as the investigator who assumed primary investigative responsibilities in the Investigation when Johanningmeier effectively withdrew from the case. A review of the interview transcripts indicates that Barnhart was the lead investigator in the field from the summer of 2011 forward, as Najjar only attended interviews intermittently, and did not take an active role in questioning witnesses in the interviews that he did attend.
Golden. 12 All of these are real damages which cannot be undone by the Cadwalader Report s attempted sanitizing of the enforcement staff s misconduct 2) Student 1 s Interview Should have been Expunged from the Record and Barnhart has Misled the University as to the Circumstances Surrounding Student 1 s Interview a) Background as to the Student 1 Interview On February 24, 2012, former University student-athlete Student 1 was interviewed by Johanningmeier. During the course of the interview, Student 1 provided Johanningmeier with information that was used to substantiate Allegations 1-(b), 1-(c), 1-(d), 1-(q), 2-(e), and 2-(f) of the Notice. Although the University had been working cooperatively with the enforcement staff and had participated in virtually all of the legitimate interviews conducted in connection with the Investigation from August 2011 forward, the University was not informed of, nor a party to, Student 1 s interview. The University did not learn that Student 1 had been interviewed until April 20, 2012, when it was informed that the enforcement staff was going to interview Student 3, a sophomore running back at Florida State University, in connection with information, improperly obtained from Allen, regarding Student 3 s recruitment to Miami. In discussing the upcoming Student 3 interview with the University, Barnhart mentioned that the enforcement staff had conducted interviews with Student 1 (February 24, 2012) and Allen (March 15, 2012 as with Student 1, the University was not aware of, nor a party to, Allen s interview) in the preceding months. Upon questioning by the University, Barnhart indicated through email 12 Allen was deposed on December 19, 2011 and Huyghue was deposed on December 28, 2011. On February 21, 2012, both the Miami New Times and the Miami Herald ran articles which made reference to Allen s deposition transcript. Although Perez initially blamed the University for leaking the transcripts, as explained to the Cadwalader attorneys, the University did not receive the deposition transcripts until after the stories ran in the media as the court reporter hired by Perez had refused to provide them. Additionally, it was the University who provided copies of the transcript to Allen s attorney. Thus, the only person who could have provided the transcripts to the media was Perez, the very person who was hired by the NCAA for the sole purpose of taking the depositions. Despite the fact that it could only have been Perez who provided the transcript to the media, on March 13, 2012, Lach and Najjar advised President Shalala that the NCAA was commencing an investigation into recent leaks of information to the media and strongly insinuated that the University was responsible for such leaks. Only at the University s insistence did Lach agree to investigate whether the source of the leak was within the NCAA. Several months later, after prodding by the University, Najjar advised that the investigation had discovered no wrongdoing by the University. That the University would be subjected to such an investigation when it was the enforcement staff s actions that led to the leaks is yet one more instance of the enforcement staff s unprofessional conduct. 15
correspondence that the interview with Student 1 was conducted at Student 1 s request when Student 1 reached out to Rich [Johanningmeier]. Exhibit 4. 13 b) Cadwalader Failed to Consider that the Student 1 Interview was Tainted In October 2012, the enforcement staff, with the assistance of Naima Stevenson from the NCAA s legal department, reviewed the investigative record to identify and exclude tainted information. Cadwalader Report, p. 27. The Cadwalader Report explained that in fulfilling its charge from President Emmert to review the enforcement staff s October 2012 cleansing of the investigative record, it reviewed each and every factual assertion in the investigative record to ensure that it did not contain any information derived from testimony or documents associated with Messrs. Allen s and/or Huyghue s depositions. Id. at 28. The Cadwalader Report further stated that the firm identified independent evidentiary bases for every factual assertion in the investigative record. Id. In independently checking the evidentiary basis for every factual assertion in the investigative record, the Cadwalader firm claimed to have reviewed and analyzed over 75 interview transcripts and voluminous other records, including bank account documents, receipts, photographs, and other evidence. Id. The Cadwalader Report concluded that the enforcement staff had properly cleansed the investigative record of any evidence derived directly or indirectly from the improper depositions of Allen and Huyghue. Accordingly, the enforcement staff proceeded with issuing the Notice the very next day on February 19, 2013, that it asserted had been double-checked to ensure that it did not contain allegations based on tainted information. However, as referenced above, the Notice contained several allegations that were substantiated either completely or in large measure from testimony provided by Student 1 in his February 24, 2012 interview. In conducting its own review of the investigative record, the University questioned, almost immediately, whether Student 1 s interview was obtained and improperly influenced by information that the enforcement staff had received from Allen. Upon reviewing the findings of the Cadwalader Report and the allegations contained in the Notice, the University learned that 13 In addition to the attached email, Barnhart also asserted that Student 1 requested the interview with the NCAA during telephone conversations in April 2012. 16
Student 1 s interview remained in the enforcement staff s investigative record. 14 was troubled by this for the following reasons: 17 The University Information provided by both Student 1 and Allen indicated that they had a friendly relationship, and quite possibly still communicated with one another. As a result, the enforcement staff and Cadwalader should have explored the possibility that Student 1 s decision to be interviewed by the enforcement staff was influenced by his knowledge that Allen had been (impermissibly) deposed. The timing of Student 1 s interview was peculiar: o The enforcement staff informed the University on multiple occasions that it was Student 1 who had reached out to the staff and expressed a desire to be interviewed. The February timing of this alleged course of events puzzled the University because it was approximately six months after Yahoo! had released its story making the allegations public. The media firestorm surrounding the sensationalized allegations had long since died down in public circles. Thus, Student 1 s spontaneous decision to contact the NCAA in February 2012 as opposed to August or September 2011 was suspicious. o The University was not informed of and thus did not participate in Student 1 s February 24, 2012, interview and Allen s March 15, 2012, interview. Moreover, from December 15, 2011, to April 26, 2012, Student 1 and Allen were the only two parties interviewed in connection with allegations of impropriety within the football program (Allen was deposed on December 19, 2012, and Huyghue was deposed on December 28, 2012; the only other interviews that took place between December 15, 2011, and April 26, 2012 were in connection with allegations levied against the men s basketball program). Given these facts, and the close proximity of time between Allen s deposition, Student 1 s interview, and Allen s second interview with the NCAA, a connection between the interviews should have been explored. 14 Upon reviewing the secured website, the University learned that a small portion of Student 1 s interview had been redacted, but portions of the interview substantiating allegations charged in the Notice remained. The University takes great issue with the manner in which information related to suppressed and redacted interviews was presented to the University and other involved parties through the secure website, but addresses those issues in Item 3 of this Argument Section.
o Student 1 was interviewed approximately six months before any other former student-athlete was interviewed (the next, Student 4, was interviewed on August 14, 2012). The enforcement staff did not even begin to seek the University s assistance in contacting former student-athletes until April 2012. This further highlighted Student 1 s interview as an outlier when compared to the rest of the investigative record. In his interview, Student 1 did not readily offer information pertaining to impermissible benefits that he received from agent Huyghue. Student 1 acknowledged receiving those benefits only after Johanningmeier asked him specific questions regarding the benefits. Since Allen was the only witness to those benefits (and Huyghue denied providing any such benefits when he was (impermissibly) deposed), the logical inference is that the enforcement staff never would have asked Student 1 about those benefits had they not improperly received the information from Allen. 15 c. The University s Inquiry into the Possibility that Student 1 s Interview was Tainted was dismissed by Barnhart On February 19, 2013, prior to the enforcement staff issuing the Notice to the University, outside counsel for the University, Kieran Piller, had a telephone conversation with Barnhart and Richman regarding the evidence that the enforcement staff had to substantiate allegations in the pending Notice. 16 Piller asked Barnhart about her knowledge of the circumstances surrounding Student 1 s decision to be interviewed by the NCAA. While Barnhart was unsure of some of the details, she unequivocally stated that Student 1 had contacted Johanningmeier out of the blue and offered the information contained in the Notice (Piller specifically asked Barnhart if Student 1 had contacted the enforcement staff or if the enforcement staff had contacted Student 1). Piller stated that, from the testimony provided, it appeared as if Student 1 s interview and Allen s deposition and subsequent interviews could have been connected. Barnhart responded that to her knowledge, there was no connection between Student 1 s decision to contact the NCAA and Allen s deposition and subsequent interviews. 15 Although Allen did not discuss the benefits that Huyghue had provided to Student 1 on the record until his March 15, 2012, interview with the enforcement staff, by the enforcement staff s own admission, it had had off the record conversations with Allen in the spring of 2012 where he provided investigators with information pertaining to alleged NCAA rules violations. 16 The University had access to a draft of the Notice prior to its official release. 18
On February 20, 2013, after the Notice had been issued, Piller contacted Student 1 to ascertain the circumstances surrounding his decision to contact the NCAA. Student 1 informed Piller that he did not contact the NCAA, but rather, Student 1 stated that Johanningmeier contacted him to request the interview. Student 1 stated that the only reason he responded to the NCAA s interview request was because he was aware that Allen had been deposed on the matter. On February 25, 2013, Piller conducted a recorded interview with Student 1. During the interview, Student 1 stated that in no way, shape or form did I reach out to the NCAA requesting an interview in February 2012. Exhibit 5, p. 1. Student 1 reported that Johanningmeier contacted him on February 23, and Student 1 agreed to be interviewed on February 24, 2012. Student 1 stated that going into [the interview] I did know that, you know, Allen was involved in a deposition two weeks prior to my call, so I knew that I knew that the information had been given to the NCAA. Id. Student 1 further reported that he did not want to be involved in the Investigation whatsoever because I live and work a normal job just like everybody else, and really the last thing I wanted to do was, you know, have my name mixed up in this and have my family s name mixed up in this. Id. at 2. He stated that he only agreed to the interview with Johanningmeier because of his knowledge that the NCAA had already received information on potential NCAA rules violations from Allen. Finally, Student 1 stated that he never expressed to Johanningmeir that he did not want the University involved in the February 24, 2012, interview. 17 Given that Student 1 never would have agreed to be interviewed by the enforcement staff were it not for his knowledge that Allen had been deposed, Student 1 s interview should have been completely expunged from the investigative record and the Notice devoid of allegations that were charged based upon Student 1 s testimony. Still puzzled by the facts surrounding the Student 1 interview, on March 14, 2013, Glazier called Barnhart. During this conversation, Barnhart disclosed that Johanningmeir had a confidential source that provided him with the information as to Student 1 s receipt of the impermissible benefits. In other words, Barnhart would have the University believe that, even 17 Student 1 also expressed concern about information he had reported to Johanningmeier being leaked to the media, contrary to Johanningmeier s promise that the interview and its contents would remain confidential. In a November 2012 blog, Miami Herald columnist Barry Jackson referenced information that Student 1 provided to the enforcement staff during his interview. See Exhibit 6. Information from Student 1 s interview being leaked to the media is further evidence of unprofessional and unethical conduct on the part of the enforcement staff. 19
though the enforcement staff had a confidential source reporting that Student 1 had received impermissible benefits as a student-athlete, the enforcement staff chose to sit back and wait until Student 1 called them rather than reaching out to him directly to confirm the veracity of the source s information. The absurdity of such a position speaks for itself and it is now beyond obvious that Student 1 did not out of the blue contact the enforcement staff and that Barnhart has repeatedly misled the University. In light of such conduct, Barnhart should be immediately removed from any continuing involvement with the University s case. Perhaps the most troubling aspect of Student 1 s tainted interview is the additional questions it raises as to the enforcement staff s competency, integrity and motives in the manner it conducted the Investigation and the enforcement staff s decision to issue the Notice without seeking to answer the following questions: Why was the University not invited to participate in Student 1 s interview or even promptly notified that it had occurred? Why would the enforcement staff repeatedly mislead the University as to the circumstances surrounding the arrangement of Student 1 s interview? Information that Student 1 reported to the enforcement staff was leaked to the media. See Exhibit 6. Did the enforcement staff violate the NCAA s confidentiality Bylaws? Did the enforcement staff actively fail to divulge to Cadwalader the possibility that Student 1 s interview was connected to Allen s deposition and subsequent interviews despite numerous red flags indicating a possible connection in order to ensure that the interview would not be expunged from the investigative record, thus detracting from the enforcement staff s goal of charging the most salacious allegations at all costs? If the enforcement staff could not properly investigate itself to sufficiently cleanse the investigative record (even with outside help), how can the University have confidence that that the enforcement staff competently carried out the Investigation? These lingering questions resulting from the enforcement staff s treatment of the Student 1 interview make it impossible for the University to have any confidence in the motive, competency or investigative tactics employed by the enforcement staff throughout the Investigation. 20
Furthermore, concealing from the University for two months the fact that Student 1 was interviewed in February 2012 (as the enforcement staff chased various leads that resulted from impermissibly obtained evidence) and then misleading the University as to the circumstances under which Student 1 s interview was arranged, is further evidence of a lack of good faith on the part of the enforcement staff. Even more troubling is that in the midst of unprecedented public scrutiny for its investigative tactics, including perceived unethical and deceitful behavior, the enforcement staff repeatedly misrepresented to the University that Student 1 had initiated contact and requested an interview. This false statement amidst the highest of scrutiny forces the University to question the extent of incompetence and/or deceit exhibited by the enforcement staff and calls into question the fundamental fairness and propriety of allowing the same tainted enforcement staff to prosecute the case before the COI. Clearly, an investigation that is spearheaded by a tainted enforcement staff is one that is bereft of credibility before all member institutions of the NCAA, student athletes, prospective student athletes, and the general public. 3) The Brody Waters September 12, 2012 Interview was Excluded even though it Contains Exculpatory Material with no Explanation to the University as to why it was Excluded The treatment of the secured website serves as another example of incompetent and uncooperative behavior on the part of the enforcement staff. As evidenced in Chairman Banowsky s February 27 letter, the enforcement staff led the COI to believe that it would segregate interviews that were tainted by its impermissible investigative tactics from the rest of the investigative record so that the University and involved parties could easily identify and analyze the tainted evidence. Instead, the enforcement staff buried suppressed and redacted transcripts in the middle of almost 1,300 other evidentiary documents including pictures, bank records, phone records, credit card statements, receipts, and other documentary evidence collected of over the course of the two-year Investigation with insufficient and ambiguous labels, and no explanation whatsoever as to the information and thought processes relied upon in suppressing particular interviews or redacting specific portions of interviews. 18 As claimed in the Cadwalader Report, the enforcement staff painstakingly reviewed the investigative record in order to identify and expunge all tainted information. Accordingly, the enforcement staff had 18 For a screen shot of the haphazard and unorganized manner in which the enforcement staff uploaded suppressed and redacted interviews onto the secured website for the University and involved parties to evaluate, see Exhibit 7. 21
clearly previously organized the suppressed and redacted interviews in a coherent fashion. Thus, failing to present those interviews to the University and involved parties in a similarly coherent fashion, even as the enforcement staff faced the highest scrutiny for its investigative tactics, is inexcusable. 19 The University is particularly concerned with a September 12, 2012, interview of Brody Waters that it found embedded in the middle of documentary evidence that had nothing to do with suppressed and redacted interviews in the Misc case documents section of the secured website. 20 Waters was employed at Axcess Sports and Entertainment, from 2002 until 2007, the sports agency in which Shapiro invested. As with the Student 1 interview, the enforcement staff conducted its interview with Waters without first notifying the University or inviting it to participate. The enforcement staff failed to inform the University of the interview despite the fact that enforcement staff were in daily contact with the University and its representatives in September 2012 regarding the Haith and Morton interviews. In fact, the enforcement staff never alerted the University that the interview had taken place. The University only learned of the interview through its review of the secured website. Upon reviewing the contents of the interview, the University cannot determine why it was expunged from the investigative record. Since the enforcement staff has not provided the University with any explanation as to how it arrived at its conclusions of what constituted good information that remained in the investigative record and what constituted bad information that was removed from the investigative record, the University can only surmise as to why Waters interview was fully expunged from the investigative record while information from other interviews that was clearly tainted (e.g., information from Student 1 s interview) remained in the investigative record. Given the enforcement staff s pervasive lack of good faith behavior, the University is led to the conclusion that Waters interview was fully expunged from the record because it offered 19 The manner in which the suppressed and redacted interviews were presented to the University for review was so incoherent that, at the direction of the COI, the enforcement staff sent instructions that involved seven distinct steps to assist the University in finding the relevant documents on the secured website. See Exhibit 8. The enforcement staff also scheduled a walk through session to explain the instructions to the University. Notwithstanding this assistance in viewing the suppressed materials, the fact of the matter is that the suppressed materials were never segregated from the rest of the investigative record and were presented in a manner that made it impossible for the University to sufficiently evaluate the evidence. 20 The University notes that the instructions to access suppressed and redacted interviews provided by the enforcement staff on March 5 still did not fully isolate those interviews from other unrelated documents. 22