Public criticism for NCAA in Haith case is premature
MAY 08, 2013 11:33a ET
But before we add another dose — one we started preparing as soon as it became clear the NCAA seemed to know exactly what it would find in the bank records it requested from former Miami and current Missouri men’s basketball coach Frank Haith — we need to make sure it’s earned. We need to answer some questions. 1) What, if anything, should be off limits for an organization tasked with stamping out corruption in college athletics? 2) Are we willing to live with the effects such limits might cause?
First, some background. On Monday, Haith and his lawyer filed a petition in Miami-Dade federal court. The petition, if approved by a judge, will allow Haith to subpoena Bank of America employees in order to find out who gained illegal access to the coach's bank records while the NCAA was conducting its investigation into Miami. That probe, built upon the claims of convicted Ponzi schemer and rogue Miami booster Nevin Shapiro, has led to Haith’s charge of failure to promote an atmosphere of compliance.
The NCAA claims Haith failed to alert the Miami athletic department when Shapiro requested money in order to keep quiet about the cash he put forward to land a Miami basketball recruit. Haith, who could face recruiting restrictions at Missouri and be suspended for one or more of the Tigers’ games if the charge stands, has denied this and asked the NCAA to dismiss the charge. It refused.
Then came news of Haith’s legal action against Bank of America, first reported by CBSSports.com. Haith’s petition, which hopes to preserve evidence that could be used for a lawsuit against the bank, states Haith became aware of a breach in his checking account in October 2012. At that time, Haith had already turned over photocopies of three checks to the NCAA, giving investigators a chance to see the documents they believe Haith used to pay Shapiro. It was after the NCAA asked Haith to provide microfiche copies of the same checks that Haith, while in the process of completing the request, learned from his bank that someone (the bank reportedly refuses to name the person) appeared to have accessed his account without authorization. That person likely violated state and federal laws.
This is the point where it becomes easy to jump to conclusions, to conjure up images of an NCAA investigator strong-arming a Miami bank teller for a copy of Haith’s records. In reality, NCAA investigations are built in less controversial and more boring ways.
Jo Potuto, a former chair of the NCAA's Committee on Infractions, spoke to FOX Sports Midwest on Tuesday. While she has no inside knowledge of the Miami investigation, the Nebraska law professor who spent nine years on the committee shared her understanding of how most NCAA investigations work.
"At least the way the [CBSSports.com] report reads, it’s not as though the NCAA went to somebody at the Bank of America who works there and said, 'Hey, this coach has records here. Would you go look at the records and tell us what you find?'" she said. "At least not the way this report reads — by any means. And when I was on the infractions committee, I don't think we ever encountered a situation in which the NCAA enforcement staff did that."
Instead, the process usually goes something like this:
A person notices something suspicious, like an athlete’s car parked at a booster’s house, or a coach contacting a recruit when he or she shouldn't. That information is passed along to the NCAA, often by a source who wishes to remain anonymous. From there, investigators work backward to see if the tip can be confirmed.
But what if an investigator receives a clue from someone who had access to information they should not have known? What if someone broke the law by acquiring information that — after it was relayed to the NCAA — helped an investigation? What should the NCAA do then?
This is a predicament Potuto says lands the NCAA in the same position as a second-string quarterback.
"No matter what they do, they get criticized, and everybody thinks the quarterback on the bench could have done a better job," Potuto said. "Whatever they do, there was a different way to do it that they should have done."
She also pointed out a cold, hard truth. If the NCAA dismissed every piece of information that ruffled a few feathers, few of its investigations would end in charges.
"If we want to say we want the NCAA investigators to not use any kind of investigative tool that isn't pure as the driven snow, and we're willing to take the fact that that means that schools may commit major violations and get away with it, so be it," Potuto said.
"If that's how everybody wants to be, don't ever use information like that," she added. "We would rather have people who have committed violations continue to be employed at NCAA schools. We would rather have the competitive advantage that a cheating school gets than to go after it aggressively, then so be it. But that's not the way I would do it. If you're asking me to do the rules, I would want pretty aggressive investigations to get out wrongdoing for the good of everybody who is not breaking the rules."
But surely there is a realm that is too aggressive, right?
The NCAA already admitted previous mistakes in the Miami case. President Mark Emmert said during a news conference that there have been "enormous foul-ups" during his organization's investigation. One example includes an investigator paying Shapiro's attorney to insert investigation-related questions into a deposition for Shapiro's bankruptcy case. That act that eventually culminated in the firing of vice president of enforcement Julie Roe Lach and the dismissal of the information gained during the court procedure.
With so much at stake in this investigation, and so many eyes on the NCAA, isn't there a chance the organization again crossed the line when it comes to Haith's bank records?
It's certainly a possibility.
But we should hold our judgement for now.
In time, we will hopefully know if the NCAA was the instigator behind Haith's beef with the Bank of America, or just an investigative organization following up on a lead.
One would show the NCAA again overstepped its boundaries by encouraging someone to break the law. The other would show investigators simply did their jobs.
Only if the NCAA’s fingerprints are directly on the breach should the organization receive its freshest load of public scorn.
Until then, we should wait to add to the pile, and reserve the next heap for a more-deserving occasion.
Chances are one will come pretty soon.
You can follow Ben Frederickson on Twitter (@Ben_Fred) and contact him at firstname.lastname@example.org
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