Originally Published: November 27, 2012 9:58 p.m.
The NCAA's arrogance knows no bounds, but the governing body has set a new low even by its own depressed standards.
A recent Miami Herald article reprinted a letter sent by the NCAA to attorneys representing a number of former University of Miami football players. The letter asked the players to contact the NCAA to discuss their involvement with former Hurricanes booster Nevin Shapiro, the convicted Ponzi swindler currently serving a 20-year prison sentence.
In a series of articles published by Yahoo! Sports last year, Shapiro admitted providing dozens of UM players with impermissible benefits in the form of gifts, meals, travel and prostitutes. The NCAA ordered 12 players to pay restitution, and hit eight of them with suspensions ranging from one to eight games. The NCAA letter implies that the investigation is ongoing.
Keep in mind that all the players are either out of football or in the NFL, which means the NCAA has no jurisdiction over them. The governing body can't compel the players to respond to the letter nor can they take any disciplinary action against them for refusing to do so. Despite that reality, the NCAA said it "will consider the non-response as your client's admission of involvement in NCAA violations." Say what?
Jo Potutuo, a constitutional law professor at the University of Nebraska Law School and a former infractions committee chairwoman for the NCAA, said she doesn't believe the NCAA has overreached its powers by sending the letter. In an email sent to the Herald, Potutuo stated, "Players still in school have an obligation to cooperate. Those not in school had an obligation to play by the rules when in school, and to cooperate. In these circumstances, I don't think treating silence as evidence of complicity is overreaching, at least as a general matter."
Well, maybe inferring guilt from silence isn't overreaching as a general matter, but as a specific matter the NCAA's position is outrageous on its face. As the good professor should know, we operate under a Constitution in this country, one that includes the Fourteenth Amendment, which grants each of us due process, along with the Fifth Amendment that protects against self-incrimination. OK, so every first year law student knows the Fifth Amendment doesn't apply to civil cases and the Fourteenth Amendment only applies to the government. Regardless, our sense of justice implies that fairness and due process will be the hallmarks of any investigation conducted by anyone. Of course, the NCAA has been violating those precepts with impunity for so long that it feels omnipotent.
The letter goes on to say "[it] serves as a formal and final request by the NCAA enforcement staff for interviews with (blank) to be completed by November 23, 2012." An attorney representing one of the former players characterizes that language as harassment and also threatened to sue for defamation. He may have a case. On the other hand, the letter can be viewed as nothing more than a desperate tactic by a frustrated organization. In this instance, the NCAA is effectively impotent and knows it. The only motivation for the players to respond is the hope that their cooperation may result in lighter penalties against the university. Despite that "carrot," it is highly unlikely any of the players voluntarily contacted the NCAA by last Friday's deadline.
If the NCAA wants to send a message that rogue boosters such as Shapiro are unwelcome and institutions that do not vigilantly guard against their influence will be punished, they have the perfect opportunity to do that in this case. A photo of UM President Donna Shalala accepting a $50,000 check from Shapiro during a team banquet went viral after it was included in one of the Yahoo! Sports articles chronicling Shapiro's illicit activities. What message did Shalala send to 19-year-old student-athletes when Shapiro came calling with a free meal or a plane ticket for a mother to attend her son's game? While the NCAA disciplined student-athletes, Shalala has thus far emerged unscathed after the university refunded the donation.
Think of the message the NCAA would send if it disciplined Shalala. Of course, Shalala would fight back, and the last thing the NCAA wants is to become embroiled in a fair fight. Bullies prefer to use Gestapo tactics to harass and intimidate defenseless student-athletes.
Jordan Kobritz is a former attorney, CPA, and Minor League Baseball team owner. He is a Professor and Chair of the Sport Management Department at SUNY Cortland and is a contributing author to the Business of Sports Network. Jordan can be reached at firstname.lastname@example.org