NCAA needs to reevaluate entire enforcement model
Julie Roe Lach worked at the NCAA for 15 years, starting as an intern and eventually rising to the prominent position of vice president of enforcement in October 2010. She spent much of the next two years spearheading a movement to overhaul the NCAA's entire enforcement model, restructuring the staff and implementing a stiffer, more versatile penalty structure for infractions cases.
As of Monday, Roe Lach's tenure in Indianapolis is over. She paid the price for an embarrassing ethical blunder in the Miami/Nevin Shapiro investigation, detailed in an external report released to the public. After commissioning an outside firm to review the case, NCAA president Mark Emmert will now commence "Stage 2," a review into "broader policy, practice and procedural review of how NCAA regulatory activities are managed and conducted."
Emmert hired and charged Roe Lach with improving the way the NCAA polices its members. Now it has fired her and charged someone else (interim VP Jonathan Duncan) with a variation of the same task. At what point does Emmert -- or if not him, the NCAA's members -- finally admit the need to blow up the whole thing and replace it with something more effective?
Before we proceed, note that I'm solely referring to the process by which college athletics institutions oversee and punish rule-breakers among themselves. There is no shortage of critics that feel the same way about the NCAA's entire existence. The need for fundamental changes to the century-old principles of college athletics is an indisputably relevant discussion, but to this point exists only in the most theoretical channels. Today, we are dealing with a very timely and tangible opportunity for the organization to radicalize a specific and extremely visible arm of the NCAA.
In conducting an external review of a specific enforcement case, scapegoating Roe Lach and pledging a broader review, Emmert is at least conceding a need for change. Monday's report gave the public an incredibly rare and enlightening glimpse into the previously cloak-and-dagger world of NCAA enforcement. The picture it paints is one of a well intentioned but insular group of people so bogged down in the day-to-day of their near-impossible task that they couldn't see the glaring ethical no-no they were walking into -- even when other individuals inside and outside the organization explicitly spelled it out for them.
If you're not inclined to read the entire report, here's a synopsis. In the course of his probe into the alleged impermissible benefits Shapiro foisted on Miami athletes, lead investigator Ameen Najjar was growing frustrated by a number of uncooperative witnesses whom he did not have the authority to subpoena. Shapiro's defense attorney, Maria Elena Perez -- not exactly a pillar of the South Florida legal community (in 2010, a judge said her actions in a case "f[ell] below the required standards of conduct and professionalism") -- offered to do Najjar's work for him. For a fee, she would depose witnesses in Shapiro's bankruptcy case and ask them whatever questions the NCAA had.
Najjar thought this was a great idea, and forwarded her proposal to his bosses, Roe Lach and Tom Hosty. They liked it, too, though Roe Lach was concerned enough to instruct Najjar to seek clearance from the NCAA's legal staff. (Simultaneously, Roe Lach sought and received approval for funding from COO Jim Isch.) Legal counsel told Najjar plainly: No, you shouldn't do that. In fact, they reinforced the message twice.
Yet Najjar promptly found a "way around" that advice and managed to hire Perez, convincing Roe Lach that everything was on the up and up. Perez conducted the depositions and eventually billed the NCAA last year for roughly $57,000. By then, Najjar was long gone. Roe Lach -- under the impression she'd authorized closer to $15,000 -- put the brakes on the whole thing. All evidence collected from those depositions (about 20 percent of the larger file) was stricken from the Miami case (which, somehow, is still proceeding), and last month Emmert commissioned an investigation of the investigation.
Note that Kenneth L. Wainstein, whose firm conducted the investigation, placed the blame almost entirely on Najjar. While the report faults "management" for poor oversight, he made a point on Monday's conference call of citing Roe Lach's "integrity" both in the events described and in her interviews with his firm. Almost no blame is placed on Isch, the NCAA's second highest-ranking official and its former interim president, despite the fact that he signed off on the arrangement. His involvement in authorizing Perez's proposal was deemed mostly budgetary and "he did not have responsibility for vetting its appropriateness." And Emmert himself gets just a tiny little mention at the end because "he was not apprised of the arrangement with Ms. Perez until the fall of 2012" and, upon learning of it, dealt with the situation accordingly.
The report concludes that while no NCAA bylaws were broken, Najjar and company did violate internal NCAA protocol (by hiring an attorney without legal counsel's approval) and that Najjar "apparently never considered whether he was inappropriately using the bankruptcy process for the NCAA's purposes. "...For a host of reasons, the Perez proposal was unquestionably a bad idea for the NCAA," the report stated.
All of which begs the question: For such an unquestionably bad idea, how come so many NCAA employees -- from the investigators working below Najjar all the way up to the No. 2 person (Isch) in the entire organization -- either failed to see or refused to accept it?
There are several insinuations in the report that enforcement staffers might not have discerned anything untoward about the arrangement because it didn't seem significantly different from past cases where investigators relied on legal cases related to their subjects. In other words, NCAA investigators are so numb from their lack of subpoena power that piggybacking off those that do -- even if it involves manipulating someone's bankruptcy case -- is considered fairly standard practice.
Given that revelation, surely Emmert will ask Wainstein's firm to go back and review previous cases Najjar, Hosty and Roe Lach worked on, right? There may be other examples of tainted evidence that were used to levy sanctions against universities. Surely Emmert would want to avoid another "embarrassment for the association and its staff," as he dubbed Monday's findings.
"This is an approach that had never been taken before, that anyone's aware of," said Emmert. "But, if we find something that's inappropriate in our behavior we'll deal with it correctly."
Last month, when he first announced the Miami fiasco, I wrote of Emmert's credibility-straining tenure to date. Afterward, I heard from many in college athletics who agreed with my assessment that "the bleeding only seems to get worse the longer their current president keeps doing the fighting," but, unless the membership steps up and demands a change, Emmert and trusted crony Isch aren't going anywhere.
"If the [NCAA] executive committee feels some sort of disciplinary action needs to be taken against me then I'm sure they will," Emmert said in response to a question about whether he should be punished.
Presumably, Emmert will still be around to implement whatever enforcement changes this next panel recommends. On Monday's call, he speculated about possibilities like "something functionally analogous to the Senate Intelligence Committee" or a "third-party ombudsman" who members could go to with concerns about specific tactics used by the NCAA's investigators.
Here's an idea: Why not outsource the entire enforcement operation to a third party?
For as long as it's existed, the NCAA, as a voluntary organization, has relied on a model off self-regulation. And it simply doesn't work. It's not just that the investigators are limited in power. It's that an overriding chasm exists when one department in a building is distributing revenue to Miami, another is administering championships in which Miami's teams participate ... and another is actively seeking to give Miami something close to the Death Penalty. It creates a larger climate of angst and distrust that permeates everything else the NCAA does (much of which, you may be shocked to learn, is actually good). And that's under normal circumstances, much less the past 12 months, when at least four senior staffers have been fired and a fifth resigned; when a judge in Los Angeles sharply criticized staffers' treatment of ex-USC running backs coach Todd McNair; and when Emmert on Monday said of the Miami fiasco, "this is not a good situation at all."
The NCAA's enforcement staffers work hard. They're well intentioned. Many hold law degrees or came to the organization with former prosecutorial experience. But there are outside investigative firms that can do the same work more efficiently, and free of the politics and bureaucracy that hover over everything the NCAA does.
Someone had to pay the price for hijacking a bankruptcy proceeding on the NCAA's behalf, and that someone became Roe Lach, an NCAA lifer who past colleagues have universally hailed for her integrity. She was Najjar's boss, and she made a mistake. But replacing her will do very little to solve the NCAA's enforcement woes, especially since that person will be walking into a climate of massive distrust.
The NCAA doesn't need a third party to monitor its investigations. It needs a third party to conduct those investigations for them. Anything short of that will just lead to more reviews and reports in the future.