Hello, non-lawyer friends. By now you've heard that the NCAA is conducting an internal investigation after discovering that its enforcement staff worked with Nevin Shapiro's attorneys to depose witnesses on their behalf. In case you're a non-lawyer you might not know what any of that means, I'm going to conduct a Q&A with my old buddy the fake non-lawyer to explain everything to you.
Q: So what did the NCAA enforcement staff do?
A: NCAA enforcement staff worked with Nevin Shapiro's attorney to depose witnesses with questions that were not related to his bankruptcy case but were related to the NCAA's investigation of Miami.
Q: Wait, what is a deposition?
A: A deposition is out-of-court oral testimony that can be used in a trial. Perhaps the most famous deposition was President Clinton's in the Paula Jones civil suit, in which he said, "I did not have sexual relations with that woman, Miss Lewinsky."
Q: He was impeached for lying under oath. So I guess that means you're under oath when you're testifying at a deposition?
A. That's correct.
Q: So why was Nevin Shapiro getting deposed?
A: It was to gather evidence for his bankruptcy case. When you declare bankruptcy, all the lawsuits against you are heard by a bankruptcy court. One of the disputes must have required testimony from people who could also testify about Shaprio's activities with the Miami football program.
Q: So how the hell did the NCAA ask questions about their investigation at a bankruptcy proceeding?
A: Your guess is good as mine. While we don't know the exact nature of the questions asked, NCAA president Mark Emmert admitted that NCAA investigators improperly used Shapiro's attorney to ask questions about NCAA rule violations under oath.
Q: Why did Shapiro's attorney let the NCAA do that?
A: My guess is that Shapiro directed her to help out the NCAA as part of his ex-jocksniffer vendetta against Miami. Shapiro's criminal lawyer, Maria Elena Perez, appears to be more Saul Goodman than Atticus Finch, so she went along with the scheme.
Q: How did Emmert find out that his investigators were doing this?
A: Perez sent the NCAA an invoice. Which is really weird, because if you work as a lawyer for someone in bankruptcy, your fees are paid before their creditors receive any money.
Q: That doesn't seem fair.
A: Well, a) the only way you'll get attorneys to represent bankrupt people is by allowing them to get paid for their services and b) lawyers wrote the bankruptcy laws, so we get to put in stuff like that.
Of course, you need to submit an invoice to the court in order to get paid. And while Perez represented Shaprio in some matters before the bankruptcy court, she never submitted an invoice to them. Instead, she submitted one to the NCAA. Again, competence doesn't seem to be her thing.
I'd wager that Perez, who had trouble making timely motions in the past, forgot to submit an invoice to the court in time and thus sent a bill to the NCAA, exposing this whole scheme. Leave it to an incompetent South Florida lawyer to endanger the investigation.
Q: Endanger the investigation? You need to explain why this is that big of a deal.
A: Because the NCAA should not have the power to force people to answer questions under oath. We only force people to answer questions under oath (which means they could be thrown in jail for perjury if they lie) when it concerns someone disobeying a law. Laws are passed by legislatures that are elected by the people. We don't want people to go to jail for lying about breaking rules that were made by a dictator.
Q: Are you calling Mark Emmert a dictator?
A: Well if he ran for election, he'd do worse than Mondale. Nobody should go to jail for disobeying one of his edicts. That's what's so galling about what the NCAA did. They're a bunch of plutocratic pricks, but at least they only come up with made-up rules and not actual laws. But in getting Perez to ask questions under oath, they acted as if their stupid little rules had the force of law.
The NCAA wants to have the privileges of government without any of the responsibilities of governing. The last time I wrote about the NCAA's galling behavior in the Miami case I wrote:
I don't think the NCAA needs to give players the rights that citizens have with respect to their government; I'm just illustrating how due process is tied to the right to earn money.
Well if your edicts are going to have the force of law, as they did when Shapiro's attorneys asked about them under oath, then you better goddamn well give people the same rights that they do against their government. The NCAA doesn't have due process or elections. It is, as I said in that article, a banana republic.
That's what makes this so bad; the NCAA used the United States judiciary to make their stupid regulations the rule of law, even though they run roughshod over the people that they govern. Let me put this in bold and all caps so the world can see it loud and clear:
AN NCAA INVESTIGATOR WANTED TO BE ABLE TO SEND SOMEONE TO JAIL FOR NOT ANSWERING QUESTIONS ABOUT HIS BULLSHIT RULES
This is America, not North fucking Korea. If someone wants to pass a law that sends you to jail, then he or she better well have to face your peers at the ballot box. The NCAA basically tried to subvert democracy. This is easily the worst thing that it has ever done.
Q: Holy crap! How will everyone be penalized?
A: Well, Shapiro's lawyer will probably be disbarred. A court has already said she's incompetent, and now she's crooked too. Dave Barry articles have taught me that the bar for being a lawyer in South Florida is set pretty low, but this should be the end of the line for her legal career.
The NCAA investigators who used Shapiro's lawyers could face criminal penalties. They could be charged with obstruction of justice for interfering with a bankruptcy proceeding. Or they could be held in contempt of court, which allows judges broad discretion to penalize people who interfere with court matters. An NCAA employee could go to jail for his actions during the Miami investigation.
And then there's the NCAA, which could get sued by Miami for fraud. Fraud means you lied or deceived someone for your own gain, and the NCAA sure as hell did that when it used a criminal defense lawyer to ask people questions about infractions of its rules under oath. Now, fraud probably isn't a crime in this instance, but it sure as hell is a civil offense.
If you ask your local trial attorney what he thinks about fraud lawsuits, you'll see a Cheshire cat grin come across his face. Why? Because fraud is an intentional tort. Typically torts punish negligence, like if you hit someone while you were driving too fast. But when someone intentionally causes harm in a tort case (i.e. fraud or assault), then courts get a lot more liberal with damages, as we want to penalize people for causing harm on purpose.
Q: So Miami could take the NCAA to the cleaners?
A: Oh hell yes. Even if the actual damages aren't that great (for example, due to ACC rules Miami actually makes more money when they don't go to a bowl), the prospect of a fraud lawsuit is terrifying. At the very least, a suit by Miami would proceed to the discovery stage. And that means Miami could force Mark Emmert to testify, under oath, what exactly he did to take them down.
Of course, it'll never get to that. Miami has just as much to lose from protracted litigation. Likely the NCAA will settle and Miami will probably avoid punishment.
Q: Well that doesn't seem fair.
A: The NCAA will still lose money. And you know who hates it when companies lose money due to incompetence? Boards of directors. The NCAA board of directors should force Emmert to explain why he runs a tinker toy operation that has bungled investigations into USC, UCLA and Miami alone in the past two years.
Mark Emmert wants the privilege of making the law. That means someone has to exercise the right to throw his incompetent ass out of office.
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