NCAA Investigation Flash Back: Great interview with NCAA Attorney Michael Buckner
Q: Mr. Buckner can you explain the process of whatís going on in Miami right now?
A: Sure, what is going on right now is that the NCA enforcement staff is conducting what they hope to be a thorough investigation of the allegations that were alleged by Mr. Shapiro. Theyíll be conducting interviews on and off campus of former and current student athletes, employees and other persons that might have knowledge of those allegations, as well as reviewing documents and conducting other investigative activities. At the same time you alluded to in your earlier statement thereís a separate process going on as well, itís the student athlete reinstatement process. Thatís the process in which the NCAA reinstates the eligibility of the student athletes that may have been involved in rules violations. Those two processes work separately so even if you have the players have their eligibility reinstated right now the enforcement process later on can come back and still find those players to have been involved in rules violations and it can still be used in sanctions against the University of Miami so itís a very big process or processes and the university Iím sure is doing all it can to defend itself but at the same time doing its duty to cooperate with the enforcement staff.
Q: I wanted to build upon your last few sentences there. What is UMs role in this process?
A: Well itís an interesting roll unlike a criminal case or even in a civil case, where you are suing one another, the University of Miami like all NCA member institution theyíre under an obligation under bylaws 19 and 32 of the NCAA manual to cooperate with the enforcement staff and most importantly they have an obligation to conduct an investigation that provides information that refutes and supports and allegation. So, they have to uncover information that might even acknowledge that a violation occurred so itís a very tricky process for those of us who represent universities where we have to fulfill our clientsí membership obligations while at the same time defending them against what are sometimes unfounded allegations.
Q: Whatís the next step in the process? Like you said theyíre in the fact gathering stage, whatís the next step the Miami fan base can expect?
A: I think that this is going to go on for several months. The NCAA staff is trying to streamline the process, trying to make it more prompt in term of when it ends, but I can expect if this case has been going on for 5 months or so according to media reports, you can expect this investigation to last for another year or so. Then it goes from there if the staff believes that rules violations occurred at the University of Miami they will issue what is called a notice of allegations. That is kind of akin to a criminal indictment top where it lists what the staff believes occurred in the violations of the NCAA legislation that occurred during a certain period of time involving any number of student athletes and/or coaches or administrators. The University and if there are any coaches that are at risk, meaning that they are alleged of committing a major rules violation, they all will receive 90 days to respond to a notice of allegations. Then after that all parties participate in a hearing before the NCAA division 1 communal of infractions, which is a 10 member body. They hear all the evidence in a hearing, most hearing last a day. One hearing like USC lasted 3 days. I would not be surprised depending upon the number of allegations in this case that this would probably be a multi-day hearing. The committee hears all evidence, after the hearing they deliberate and 3 to 4 months later they issue a decision. This entire process, the typical case now lasts about a year and half from a time that the investigations starts to the time you have the committee of infractions hearing. So, thatís what the University of Miami fans should be on the lookout for in terms of those major deadlines.
Q: One question on a lot of peopleís minds is; what can the University of Miami be doing right now to help its cause after the notice of allegations is give and that committee breaks and they come back and issue a ruling? What is in Miamiís best interest to be doing right now?
A: Well what they need to do is what USC did not to. All full disclosure Iím USC alum so I know what University of Miami fans are going through right now but learn the lessons from the USC. USC only began to fully transform what they were doing on the field and in the compliance area until after the case was over and they were going to the appeals committee. The time to make drastic changes the time to transform whatever they need to address is right now. So thatís step number one because you want to tell the NCAA enforcement staff and eventually the communal of infractions that this is a new day at the University of Miami. This is not going to happen again. We are not waiting until the end of the case we are making changes now. Second is to conduct a formal investigation. That means getting former players, current players, those associated with the program. If they have information, the university needs to get that information. In my time working these cases with coaches and universities I found information that might be helpful to my client from some of the sources that you might not think that would have good information. Thatís step number two because if Miami conducts a thorough investigation and cooperates with the enforcement staff they can get credit for that. One of the dictates that the committee has had is that although universities have an obligation to provide full and complete information. If the University of Miami finds information that the enforcement staff would not have found on their own then Miami gets credit for that. With that being said, step number 3 is that although they have the obligation to provide full and completes information that still does not mean that they canít defend themselves. Miami still has a right to defend itself to assert that allegations that they believe are not true, to provide the necessary evidence about those unfounded allegations and I would also be searching far and wide to find out where or not those allegations are not true. If not provide the necessary evidence to the enforcement staff and eventually the committee on infractions. Also I think changing the culture at the university to where you would have an alleged booster who is providing these types of illegal benefits, change in the culture again this is going long term so the community understands this wonít happen again. Then I think lastly is to keep an air of transparency between the university and its fan base and the overall general public. One of the lessons learned from USC is that USC wasnít transparent, they kept everything hidden and it really wasnít a very good PR move. If you contrast that with what Michigan did a few years ago they were very transparent, they kept the fan base informed about their investigation, they were straight forward and cooperated fully with the NCAA and they received less institutional penalties than I suspected they would and I think thatís because of how they conducted their investigation.
Q: Mr. Buckner that leads me into my next question. Does the fact that the Athletic Director, the athletic department staff and the former football program staff no longer being at Miami does that help their case at all?
A: Yes it does. But, most importantly, it was those individual that at the time, the term of awareness that that staff finds out whether or not they knew or should have known about those things. The fact that they are no long at the university does help Miami. It doesnít help them a lot but anything at this point would be good news for the University.
Q: Absolutely. Letís talk about the case the NCAA is investigating now and some of the players who were involved in recruiting violations like Orson Charles who decided to go to the University of Georgia, Robert Marve who is now at Perdue University and Andre Debose who is now at the University of Florida and have very similar allegations against them that are alleged against current Miami players, so that leads me into the question of limited immunity. Can you explain what limited immunity is for us?
A: Sure. It is a tool that the enforcement staff has to where they can offer a university employee or student athlete with forgiveness with their involvement in a rules violation and itís sort of like turning states evidence in a criminal case, in a criminal proceeding and it allows the person that receiving the limited immunity to know that is he or she tell the full truth they wonít be punished by the NCAA they wonít have their eligibility revoked. Based upon media a report thatís what we believe the enforcement staff is offering all these former either UM players or former UM prospects in order to get them to provide information concerning their time or their involvement at the university.
Q: Ok, are you ready to take a call?
Q: Ok, this is one of our longtime friends he goes by El Padrino, heís a lawyer as well. El Padrino welcome to Caneinsider sports talk radio.
El Padrino: Thank you Michael. Mr. Buckner I want to thank you for giving your time to our board. We have a lot of team fanatics on here including myself. We have heard, at least a rumor, reported by the Herald that 4 players have been cleared and 8 players will be ineligible. So assuming that tomorrow the school has filed the immediate petitions for their reinstatement, I think you informed us earlier that there is a special NCAA Eligibility committee that makes a ruling on their eligibility. Would you happen to know more or less the time frame for when the staff can get some feedback, how much is there going to be there in penalties or how many games theyíre going to be losing?
A: Sure, let me explain a little bit more about that process. Itís a separate track a separate process form the enforcement staff they have a separate staff itís called the reinstatement staff and they have a reinstatement committee. What happens is, the university believes that a student athlete was involved in a rules violation that impacted his or hers eligibility the university would declare that student athlete ineligible then they would request the reinstatement staff to restore that student athletes eligibility. It would be the upon university obligation to supply the reinstatement staff with the information necessary for the staff to review to determine whether or not that students eligibility can be restored. The reinstatement staff does not conduct investigations, they rely upon the information the university provides. If the reinstatement staff decides that the universities eligibility should not be reinstated or theyíre are reinstatement conditions that the university does not agree with then the university can appeal that decision to the reinstatement staff committee. Then you would have a hearing, a telephone hearing and the university and the staff would be able to provide itís side and the staff would be able to provide itís side then the reinstatement committee would provide the final ruling on the student athletes eligibility. Based on what youíre describing on whatís going on right now the reinstatement staff has already restored the eligibility of several student athletes and now the university is waiting on the decisions on other student athletes, normally right now is one of the busiest times in Indianapolis where the NCAA staff is located because youíre having a lot off waivers being processed, reinstatement requests being processed but I would be willing to bet you that this University of Miami is receiving the higher priority and theyíre probably working very diligently and hard, long hours to resolve these reinstatement requests as soon as possible. It would be very hard for me to guess the time frame involved because the number of student athletes involved but it would probably be safe to say the reinstatement staff is working diligently to try to resolve all requests before the first game. Donít be surprised if it is not resolved by the first game.
El Padrino: Assuming we have a scenario of, we get feedback from the particular committee; look this student really was egregious he was no very cooperative and look at the things he did weíre going to give him the suspension for the whole season. Then the university disagrees with that position and theyíre entitled to come back with additional evidence for an additional hearing. Is that how it would normally work?
A: Yes. You could always go back and request again based upon new information. Thatís one of the tricky things about reinstatement because the university is trying to reinstate student athletesí eligibility as quickly as possible. Often times they donít have all the facts as they havenít completed their investigation for the enforcement process. What the university is doing now is trying to get all these student athletes reinstated early and there may be a situation where their investigation on the enforcement side uncovers more violations involving those student athletes. The university is doing the right thing.
El Padrino: In works both ways then. If the NCAA discovers additional facts to mitigate the compounding factors then either side can go back and look, we initially gave him two days and now we need to consider an additional 5 days. One more questions I have sir. The board has had a lot of questions regarding the definition of lack of institutional control and a lot of member of the board have come up with a lot of factors to try to mitigate or try to minimize the lack of institutional control issues. One was supposedly an ex athletic director had contracted a private investigator to investigate Mr. Shapiro and he came up with nothing. Also the head of our compliance under a previous director Kirby Hocutt also did his own investigation into Mr. Shapiro also it is widely publicized that our ex-coach, coach Shannon publicly stated to all of his coaches and all of his players to stay away from this dirt bag. Can you first define what lack of institutional control is and again in a very sync way some of the factors assuming that theyíre correct would be some of the factors trying to mitigate this issue.
A: Well I think the first mistake Paul D. made, and I know Paul D. was he didnít hire me to investigate Shapiro because I would have found out about Shapiro but the intuitional control is a situation where, just a basic definition, is that the university lack the necessary governance and oversight over the athletic program and that means the university doesnít have proper communication between its constituent groups about compliance issues, isnít well organized in terms of compliance programs. Everyone knows their responsibilities and duties they have a compliance staff, a compliance program. Everyone knows what theyíre supposed to do there is little or no documentation about policy and procedure dealing with compliance and the university does not evaluate itself in its compliance program on a regular basis both internally and externally. So thatís a general look of institutional control.
The committee on infractions doesnít necessarily have to find that thereís a lack of all those elements it can take one or more of those too have lack of institutional control. There are also lesser institutional penalties out there to monitor. That means you have all the procedures in place and documentation and evaluate but you fail to ensure and to monitor that everyone is following all those rules and thatís a more common violation now than lack of institutional control. Most division 1 programs do have solid compliance programs, some of the fact you just relayed to me. The steps that the university did do are positive to the University of Miami; hiring outside people to conduct inquires, telling individuals to stay away from a certain booster. Let me just point out that that last point when you talked about Coach Shannon telling his staff to stay away from this guy.
This is what the enforcement staff might hone in on and the committee on infractions. If you have a head football coach that tell his staff to stay away from this guy, Coach Shannon is telling them to stay away from this guy for a reason so if I was the committee I would ask if Coach Shannon felt he was such a bad guy to be around why didnít anyone at the university also tell everyone to stay around and not take his money. What did Coach Shannon know that would set off a red flag and why didnít everyone else at the university? Why wasnít a red flag set off with everyone else? Itís positive one end, itís good for Coach Shannon as him, because all these former head coaches can be subject to very demarking penalties for their own program so for Coach Shannon itís positive for him but for the University theyíre going to have some question to be asked.
The questions are; what are Miami administrators from the board to President Shalala to all the ADs to the compliance office, what did they know, when did they know about it and what did they do about it?
The answers to all those questions will determine if we know if some of the allegations are true. The answers to those questions I think will make a difference between a 3rd margin violation and a lack of institutional control. But remember what happened in the USC case, there was no evidence that Pete Carroll knew about those allegations going on, there was no evidence that the AD Mike Garrett that President Sample or any member of the board of trustees knew anything about any allegations involved about OJ Mayo or Reggie Bush but the committee on infractions still found that the USC lacks control over its athletics program. Just keep that in mind as weíre are going through this Miami case.
Q: A lot of people wonder, what is exactly the burden of proof the NCAA looks for when moving onto sanctions? How would it compare with todayís criminal system or civil court system that we might be familiar with? What do they need to hold as evidence to feel comfortable moving on with things?
A: Thatís a very good question the committee on infraction has not specifically stated what itís standard I but for those of us who do this on a day to day basis, the committee has eluded to this from time to time in its infraction reports, that it uses a reasonable person standard. Whatever the committee believes is what a reasonable person would believe is true or not is the standard they will use.
Itís a much lower standard than if you were in a criminal proceeding. In terms of the specific evidence the enforcement staff uses and the committee relies upon it really goes on a case by case basis. There have been times the enforcement staff relies on one personís testimony and there have been other times they seek out several corroborating sources. Likewise the committee will rely solely on one source even if that source has credibility problems and other times they require additional sources. One of my issues with the enforcement process it is inconsistent and unfortunately that is what the University of Miami fans have to deal with that inconsistent process.
Q: Basically circumstantial evidence will be considered a lot more here than in a criminal court system, so the burden of proof doesnít have to be that heavy. If you just have a couple people verifying a couple things the NCAA could likely run with that?
A: Yes, correct. Let me give you an example. Shapiro alleged he paid for several items, benefits, meals for student athletes. How I would proceed is I would at least get two corroborating sources, you know either the student athlete who received the benefits or some other who was at the party who can verify what Shapiro was saying.
The enforcement staff the doesnít really follow that but I think under the new vice president Julie Lach who I know will try to make sure that all those allegation they received are verified by some other objective source. I donít know if theyíre going to go with one source or circumstantial or multiple sources but I think theyíre going to try to verify just like they did in the USC case with as much evidence as possible; which is good news for the University of Miami so letís hope that they follow that pattern.
Q: One more broad question I want to ask here. When we speak about Shapiro heís been linked to professional sports agencies, as well as being a booster at Miami. I know there a place boosters are allowed a lot of special privileges, to travel with the team things of that nature. Does the NCAA have any rules of the limitation that these guys actually have with the contact of these players and is it not a conflict of interest and is there anything in play here with him just being associated with the NFL agency, the professional agencies, and being a booster at these facilities is there a conflict there?
A: Yes. That is a very good question. Unfortunately for the University of Miami Paul Deens words in the USC case are going to come back to haunt them. In the USC case the committee of infractions helped USC to a lack of institutional control because they allowed 3rd parties access to athletic facilities. Sidelines, locker rooms, team charter transportation some of the same type of access that Shapiro had. Whatís worse in Miamis situation, again if all these allegations are true, Shapiro was a formal actual recognized booster. In USCs situation Lloyd Lake and others that were involved were not boosters in the traditional sense in the USC program. They became boosters in a sense when they provided benefits to the student athletes and so that could be a complicating factor for the University of Miami in this particular case.
Q: There seems to be a lot of complicated factors here. In a nutshell what are the big things Miamiís facing? The couple things they need to prove specifically with these allegations to kind of clear their name or limit the sanctions they might receive?
A: Well first of all they have to find out and determine what did the compliance administrators all the way up to the president know about Shapiro, about his connection to the sports agencies. Which to go back to the earlier question which is also very important because according to Shapiros allegation, if what he said was true you have some amateurs in violations involved. The community is going to want to know ďok Miami you have several players being recruited by this sport agency. Did you do due diligence with this agency?
Why didnít you that you had a booster that had ownership in this sporting agency and you had him around student athletes and you had him recruiting student athletes?Ē Theyíre going to have to get solid evidence that there was no institutional administrator caught up in those violations and they did not know about it and they did have a proactive monitoring program and an aggressive monitoring program and they did all they could using private investigators, outside agencies and their own resources to try to find out who this guy was and whether or not he was on the up and up. So thatís step number one and then theyíre just going to have to methodically tackle each category of allegations.
I would be surprised if every single allegation in that yahoo sports article was found out to be true, not found out to be true but if they enforcement staff was able to collect certain evidence to determine whether or not each of those allegations were true. There were some many people involved and a time table that was years ago. There are so many details where it would be surprising if they were able to bring all those allegations to bear. Thatís good news for Miami but Miami and it lawyers need to do a good job and be aggressive when they believe the enforcement staff is pressing an allegation that they feel that they donít have sufficient evidence on. That would be the two things that I would also be looking at right now as we are going through this investigation.
Q: You just said going back would be hard to prove these things. I know there is a 4 year statute of limitations on this stuff and also there are rules in place where they can go beyond those 4 years. Tell us the odds of them being able those 4 years and the things they have to prove to be able to go back those 4 years. Is that something that ultimately that you see happening in the end, I know itís speculation at this point but so you see past those 4 years being relevant?
A: Well thatís what the enforcement staff is probably doing right now and Iím sure that theyíve identified to the university that it may be a possibility. What the enforcement staff is going to have to demonstrate in order to use the willful violator provision is that there is a pattern of activity of illicit activity that they can connect past the 4 year statute of limitation period. If theyíre able to establish that from 8 years ago then they can implicate that statute. The difficulty is that Iíve came in 4 or 5 years after the alleged allegations take place, it was very difficult for me to collect evidence to prove or disprove that the allegations took place. Peopleís memories change, documents are destroyed unintentionally, people move away, itís hard to locate people, people donít want to be bothered anymore people move on with their lives so it becomes very difficult the challenge that the enforce staff has.
Q: What will the effect have for the University of Miami if they went ahead and self-imposed some sanctions?
A: That is a very good question and that is a delicate subject with universities. As I have explained to my clients itís sort of like walking a tight rope, you donít want too under penalize yourself and you certainly donít want to over penalize yourself you just want to get into that little sweet spot. If you learned about the University of Tennesseeís case I think itís being reported today they did not receive any additional penalties. The committee of infractions accepted the self-imposed penalties. Thatís what you want but that will take diligent research on behalf of the university. They should only self-impose penalties once they feel that they have collected sufficient to know what are more likely the violations that have occurred and then do research about past infraction decisions and how the committee looked at those past decisions as well as look at the current circumstance at the university and develop targeted self-opposed penalties that they feel will address the violations that occurred in this case and that the committee on infractions deemed to be significant as well as enough that the committee will not add any more. Thatís the goal.
Q: I know itís very early in the process; a lot of the stuff hasnít been laid out yet. A lot of the stuff most of us have to go on at this point is the article by Yahoo and Charles Robinson. How do you see this ending in Miami? I donít mean in terms of numbers but do you see some definite strict sanctions in place, possible bull ban, things of that nature.
A: I think that even half of the allegations are true, not even all of them just half. I would see a significant probation period, 3 years if not more. Significant scholarship limit and reduction similar to the USC case. I could see post season bans being opposed. Because of the media scrutiny and because of President Emmerts call trying to clean up big time athletics. I could see them trying to do things to where it is definitely going to hurt the university. Although they say the death penalty is on the table, unless the enforcement staff finds that President Shalala herself knows about Shapiro and was telling her staff to go ahead and do it, she was actually contributing and dishing out the cash herself. I donít see that likely in this era. I could see them doing everything up to that to where the university would be significantly harmed and hurt in terms of their football program for year to come. The committee has discretion to be creative with their penalties.
Q: There has been so much controversy this season and so many investigations. Is this actually a treacherous point for college football in the sense that maybe itís out of control or is it that the NCAA is tired of it and stepping up their efforts? What do you think would be most attributed to it with the investigations weíve seen?
A: Well since Iíve been in this since í99 I would argue that itís been going on all along. Since a change in our culture more is now being uncovered. If you look back in the 80ís, the 70ís and 80ís and early 90ís you had some significant cases going on then. The difference now is we have a 24 hour media cycle that constantly needs to be fed. If you look at the biggest cases that have come down the road these last few years they have not been broken by the NCAA been broken by non-judicial sports entities like Yahoo sports. Youíre having bloggers and other non-judicial median news organizations that are posting a lot of information that leads to a lot of other investigations. The NCAA is playing catch up. I think itís a change in our culture and how weíre getting information and universities need to do a better job of understanding that. With social media and other resources, they canít continue like the old days. If their boosters are going to be involved in items they are more likely to get caught now.
The Golden Era of the U has begun!