Rton NATIONAL COLLEGIATE ATHLETIC ASSOCIATION _________________________ Case Number M362

University of Miami (Florida) _______________________ Motion to Immediately Conclude Case Number M362 as it Relates to the University of Miami __________________________________________

Mike Glazier, Esq. Kieran Piller, Esq. Bond, Schoeneck, & King, PLLC Aileen Ugalde, Esq. Judd Goldberg, Esq. Office of the General Counsel 1
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University of Miami TABLE OF CONTENTS

Page I. II. III. Introduction The COI has Authority to Dismiss the Case........................... Argument 1) The Enforcement Staffs Impermissible Conduct and Mismanagement are to Blame for the Unconscionable Length of the Investigation....... 4 7

a) The Enforcement Staff Engaged in Unethical and Impermissible Investigative Tactics.. 9 b) The Investigation was Plagued by Incompetent Management and Enforcement Staff Personnel Turnover.. 11 2) Student 1s Interview should have been Expunged from the Record and Barnhart has Misled the University as to the Circumstances Surrounding Student 1s Interview...........................15 a) Background as to the Student 1 Interview. 15 b) Cadwalader Failed to Consider that the Student 1 Interview was Tainted 16 c) The Universitys Inquiry into the Possibility that Student 1s Interview was Tainted was Dismissed by Barnhart 18 3) Brody Waters September 12, 2012 Interview was Excluded from the Record even though it Contains Exculpatory Material with no Explanation to the University as to why it was Excluded. 21 4) The Enforcement Staff Disregarded the Agreement between the Former Vice President of Enforcement and the Universitys Former Athletics Director and Commenced Interviews with Nevin Shapiro without Informing the University. 23 5) The University did not Condone the Perez Plan and was Materially Misled as to the Details of the Perez Plan............... 24 6) The Tactics Employed During the Questioning of Frank Haith and Jake Morton were Impermissible and Unethical 27 a) The Enforcement Staff Misled Jake Morton During his September 19, 2012, 2
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Interview..28 b) The Enforcement Staff Misled Frank Haith During his September 5, 2012, Interview. 29 7) The Timing of the Enforcement Staffs Conclusion that Student 2 had Received Impermissible Extra Benefits is Highly Suspect... 30 8) Hannahs Involvement with Perez was More Extensive than that Disclosed by the Cadwalader Report thereby Requiring Her Disqualification from this Case.. 33 9) The Notice of Allegations Contains Allegations that were not Substantiated by any Credible Party and the Enforcement Staff Recognizes Self-Corroboration as an Appropriate Evidentiary Standard. 36 10) The Enforcement Staffs Charge of Lack of Institutional Control Attempts to Condemn the University on Logic that was Employed to Exonerate NCAA Administrators for their role in the Perez Plan.. IV. Conclusion...........

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MOTION TO IMMEDIATELY CONCLUDE CASE NO. M362 AS IT RELATES TO THE UNIVERSITY OF MIAMI

Pursuant to National Collegiate Athletic Association (NCAA) Bylaw 19.1.3, and in the interest of fairness and keeping with both the letter and spirit of the rules that bind the University of Miami (the University) and the NCAA, the University respectfully requests that the Committee on Infractions (the COI) employ its broad discretion and authority and immediately conclude this case as it relates to the University. In support of this Motion, the University states as follows: I. INTRODUCTION Following the leveling of sensationalized accusations by Nevin Shapiro a convicted felon who masterminded a $930 million Ponzi scheme the NCAA launched an investigation (the Investigation) of the University that was corrupted from the start. Specifically, at the onset of the Investigation, the NCAA went on record discussing the possibility of a death penalty sentence against the University.1 The NCAAs vocal and well-publicized discussion of the death penalty in connection with the University, prior to obtaining any competent evidence, had the consequence of leading the enforcement staff to mistakenly believe that they had carte blanche to prosecute and tarnish the University by any means necessary, including those that are inappropriate and unethical. This culminated in a Notice of Allegations (the Notice) filed against the University that was based, in large part, upon the enforcement staffs adoption of a preposterous standard of evidence self-corroboration one that is all the more offensive given that the self is a convicted swindler. By the NCAAs own admission, investigations such as this one are expected to be completed within a year. See Julie Roe Lach November 2, 2011 statement to the Miami Herald. However, the Notice in this case was not issued until February 19, 2013, nearly two years following the start of the Investigation. The unconscionable delay in issuing the Notice was
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Indeed, the NCAAs reference to the death penalty in connection with the University went viral, with approximately five hundred (500) stories being published in the span of ten days. See, e.g., Death Penalty Could be on table for Miami, Denver Post, Aug. 19, 2011; Could the University of Miami be facing the so called Death Penalty?, ABC Action News, Aug. 19, 2011; Hurricanes could be facing death penalty, The Hutchinson News, Aug. 20, 2011; Miami Hurricanes football scandal comes after SMU received NCAA death penalty, The Huffington Post, Aug. 21, 2011.

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largely caused by the enforcement staffs repeated improper and unethical conduct throughout the course of the Investigation. Specifically, the enforcement staff: Pre-judged Shapiros truthfulness before obtaining any corroborating evidence or interviewing any current or former student athletes or coaches by submitting a letter to Shapiros sentencing judge vouching for his credibility and expressing an interest in hiring him as a consultant. Improperly and recklessly partnered with a convicted felons criminal defense attorney, Maria Elena Perez, in direct violation of their own counsels instructions. Despite the fact that the Investigation was wholly unrelated to Shapiros debts, the enforcement staff, through Perez, misused the discovery rules for the bankruptcy court of the Southern District of Florida to coerce uncooperative witnesses to answer the staffs questions (the Perez Plan).

Intentionally misled the University on multiple occasions by withholding key information, failing to inform the University of scheduled interviews, and, most egregiously, lying to the University and its outside counsel. Also, the enforcement staff repeatedly lied to and misled witnesses. All of this was done in direct violation of the NCAAs bedrock principles of honesty, integrity and cooperation, as well as the enforcement programs commitment to fairness of procedures, as articulated on the NCAAs own website.

Made staffing decisions that led to constant turnover and vested inexperienced investigators with responsibilities and authority in one of the NCAAs most high-profile cases.

Improperly leaked information to the media in direct violation of the NCAAs confidentiality rules and regulations. Information known only to the enforcement staff and its agents, repeatedly appeared in the media. 5
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As a result of the enforcement staffs blatant disregard for its own rules and regulations, the NCAA leadership itself directed that all information stemming from the partnership with Perez be removed from the final record and not be used in any manner against the University. In addition, the egregious conduct caused the NCAA to stay the Investigation in January 20132 and commission the law firm of Cadwalader, Wickersham & Taft LLP (Cadwalader) to conduct an inquiry into the enforcement staffs conduct. Prior to the Cadwalader firm conducting its inquiry, in October 2012, the enforcement staff allegedly scrubbed its records of all tainted information. On February 18, 2013, Cadwalader released its Report on the NCAAs Engagement of a Sources Counsel and Use of the Bankruptcy Process in the University of Miami Investigation (the Cadwalader Report). The Cadwalader Report concluded that the enforcement staff had properly removed all tainted material from the record. As discussed in great detail below, this is an erroneous conclusion, as a key witness interview that was obtained as a direct result of the enforcement staffs impermissible arrangement with Perez remains in the investigative record. Furthermore, the Cadwalader Reports findings exonerating numerous enforcement staff members who continue to spearhead the processing of the Universitys case in the face of overwhelming incriminating evidence relating to their conduct appears to be nothing more than an attempt to whitewash the extent of the enforcement staffs systematic violations of the most basic principles of ethics, fairness and the NCAAs own internal rules. In exonerating members of the enforcement staff, the Cadwalader Report failed to consider numerous facts and pieces of documentary evidence. Upon review of the Notice and the record evidence set forth herein, the University respectfully asks for the immediate conclusion of its involvement in this case. The University is not asking for a windfall or quick escape. To the contrary, largely because of the NCAAs misconduct and mismanagement, this matter has languished for twice as long as it should have, to the Universitys detriment. The University submits that: (i) the substantial penalties it already has self-imposed, including a two-year postseason bowl ban, and withdrawal from participation in an Atlantic Coast Conference (ACC) championship game; and (ii) the detrimental

Despite knowing of the misconduct since September 2012, the NCAA waited three-and-a-half months to inform the University and other impacted parties.
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consequences it has endured as a result of the leaks set in motion by the enforcement staffs retention of Perez are more than sufficient punishment and that, as such, no additional penalties should be levied against the University. In addition, should the NCAA grant the requested relief, the University will stipulate to any properly corroborated allegations.3 II. THE COI HAS THE AUTHORITY TO DISMISS THE NOTICE NCAA Bylaw 19.1.3 expressly lists the duties of the COI. Among those duties, NCAA Bylaw 19.1.3-(e) grants the COI the authority to carry out any other duties directly related to the administration of the Association's enforcement program. This affords the COI broad discretion to take appropriate action to ensure that the enforcement program is properly managed and that the enforcement staff operates within the framework of the NCAA Bylaws and principles. The enforcement staffs conduct and the integrity of the investigative tactics it employs are undoubtedly directly related to the administration of the Associations enforcement program. As a result, when the enforcement staff consistently employs deceitful investigative tactics that contradict the NCAAs fundamental principles of honesty, integrity and cooperation, the COI has the authority under NCAA Bylaw 19.1.3-(e) to immediately conclude a case. The NCAA is an unincorporated association comprised of member institutions that, among other things, have voluntarily agreed to have their conduct and actions supervised and enforced by the association. However, that requires the member institutions to have utmost confidence and faith in the NCAAs enforcement program; two factors which are in dire need of restoration given the enforcement staffs conduct throughout the Investigation. Holding the enforcement staff

accountable for its indefensible actions by immediately concluding this case against the University would represent a positive step towards restoring the memberships confidence in the enforcement program. The requested relief finds additional support in a case processed in the late 1970s that involved the University of Pittsburgh. The lack of a specific record of the case in NCAA archives (apparently because of its dismissal) makes it difficult to provide explicit detail, but individuals involved in the enforcement program at that time recall that the case was dismissed by the COI on the basis of a finding that evidence had been fabricated by a member of the

The University is prepared to have additional conversations with the COI should the NCAA grant the requested relief.
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NCAA staff. The specific information that was found to be fraudulent impacted an individual allegation but the finding so undermined the COIs confidence in the enforcement staffs evidence that the entire case was dismissed. In the Universitys case, the scope of misbehavior by the enforcement staff equals or exceeds the concerns that led to the dismissal in the Pittsburgh case. Accordingly, the University asks that the COI utilize its authority and established precedent to immediately conclude the present case against the University. III. ARGUMENT The Investigation was corrupted from the start. Almost immediately, the NCAAs senior leadership went public with statements regarding the potential applicability of the death penalty. These statements were made before any substantive investigation had occurred and long before any such statements could possibly be based on any competent evidence. Once the case had been inappropriately pre-judged at the highest level, the enforcement staff was emboldened and perhaps, tacitly encouraged to engage in a pattern of bad faith behavior that did not comply with the NCAAs rules and principles so as to nail the University. The Investigation was not a bona fide inquiry into determining what transpired; instead, it immediately deteriorated into a witch hunt predicated on a convicted felons delusional desire for revenge. The damage wreaked from such misbehavior was exacerbated by the gross

incompetence and mismanagement of the enforcement staff. 1) The Enforcement Staffs Impermissible Conduct and Mismanagement are to Blame for the Unconscionable Length of the Investigation The enforcement staff began investigating the University in February 2011 when Shapiro contacted then Associate Director of Enforcement Rich Johanningmeier from prison and made specific allegations of NCAA rules violations occurring within the football and mens basketball programs at the University. On March 31, 2011, Johanningmeier conducted a telephone interview with Shapiro the first of 19 interviews that the enforcement staff conducted with Shapiro during the spring of 2011, all without informing the University, let alone inviting it to participate. The enforcement staff did not issue the Notice until February 19, 2013 two entire years after it commenced the Investigation.

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The enforcement staffs actions are directly to blame for the unreasonable length of the Investigation. First, the Investigation was unconscionably delayed as a result of the

impermissible investigative tactics employed by the enforcement staff. Second, mismanagement led to consistent personnel turnover in the investigators working on the case. These factors are discussed below: a) The Enforcement Staff Engaged in Unethical and Impermissible Investigative Tactics.

As detailed in the Cadwalader Report, the enforcement staff first began considering a plan to retain Perez in order to depose witnesses who would not cooperate in the NCAAs Investigation in September 2011. The enforcement staff then spent much of October 2011 attempting to secure funding for the plan and to obtain the NCAAs legal departments approval of the plan. On October 25, 2011, the NCAAs legal staff informed the enforcement staff that it could not move forward with the Perez Plan because it would be an inappropriate circumvention of the NCAAs investigative limitations (See Cadwalader Report, p. 18). The enforcement staff then spent the remainder of October 2011 and much of November 2011 devising and implementing a way around its own legal departments advice in order to retain Perez. After reaching an agreement with Perez, the enforcement staff then dedicated a

significant portion of its time and resources in December 2011 on coordinating the depositions of Sean Allen and Michael Huyghue with Perez and preparing questions for Perez to ask in those depositions. Id. at 21-22. In all, the enforcement staff spent approximately four months

misusing its time and resources to planning the illegitimate depositions of uncooperative witnesses rather than dedicating those resources to legitimate investigative means. The enforcement staff delegated responsibility in the Investigation by differentiating between the basketball and football investigations.4 From the time Allen was deposed on

Director of Enforcement Ameen Najjar, Associate Director of Enforcement Rich Johanningmeier, and Assistant Director of Enforcement Brynna Barnhart were assigned the football investigation. After Najjars dismissal and Johanningmeiers retirement in May 2012, Barnhart became the driving force behind the football investigation. Molly Richman, an Assistant Director of Enforcement, joined her, and Stephanie Hannah, a Director of Enforcement, was assigned to oversee Barnhart and Richman. Prior to her dismissal in December 2012, Abigail Grantstein, a former Assistant Director of Enforcement, took the lead in conducting interviews connected to the basketball investigation.
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December 19, 2011, to May 1, 2012,5 the only interviews that the enforcement staff conducted in regard to the allegations of violations within the football program were directly related to information that the NCAA obtained through its impermissible manipulation of the federal bankruptcy court.6 Essentially, from December 2011 to May 2012, in carrying out the

impermissible depositions and following-up on information obtained as a result of the impermissible depositions, the enforcement staff gathered no proper evidence in its football investigation. This was an additional five month period without any legitimate investigative activity by the enforcement staff. Although the enforcement staff resumed the football investigation after May 1, 2012, by interviewing individuals in regard to information that was not impermissibly obtained through the depositions, they continued to follow leads based upon tainted information provided by Allen. In all, from June 7, 2012 to August 14, 2012, the enforcement staff conducted 14 interviews that were prompted solely by information that Allen had provided them, diverting the enforcement staffs attention from investigating legitimately obtained information for another four months.7 Furthermore, on August 2, 2012, Perez sent Stephanie Hannah, the Director of Enforcement who took over as manager of the football portion of the Investigation in May 2012 following Najjars dismissal from the NCAA, nine invoices for $57,115 for billable time she expended related to the depositions and attempted depositions. Hannah, Managing Director of Enforcement Tom Hosty, and then Vice President of Enforcement Julie Roe Lach then spent August and September 2012 analyzing Perezs invoices and the propriety of some of the charges. Cadwalader Report, p. 24. On September 28, 2012, Hannah presented the invoices to the

On May 1, 2012, the enforcement staff interviewed Witness 1, father of then student-athlete Student 6. Witness1 was interviewed regarding information provided by Shapiro, Student 6, then student-athlete Student 7, Student 8, Witness 2, and Witness 3. 6The Cadwalader Reports summary conclusion that the enforcement staffs retention of Perez did not violate federal bankruptcy rules is belied by the fact that, on March 5, 2013, the Chief Judge of United States District Court for the Southern District of Florida issued an Order of Reference to the district courts Attorney Grievance Committee asking for a recommendation as to whether Perez acted unethically and, if so, whether any discipline should be imposed. See Exhibit 1. 7 Those interviews were as follows: Student 9, two interviews with Witness 4, Witness 5, two interviews with Witness 6, Witness 7, Witness 8, Student 10, Student 11, Student 12, Student 13, and Witness 9.
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NCAAs legal staff.8 Learning that the enforcement staff had retained Perezs services against its advice, the legal staff instructed the enforcement staff to discontinue all work with Perez. Then, for the remainder of 2012, the enforcement staff spent a significant amount of time settling final charges with Perez and reviewing the Miami investigative record, purportedly to remove any information obtained directly or indirectly from the improper December 2011 depositions. This consumed a sizeable amount of the enforcement staffs time until the NCAA ultimately disclosed the enforcement staffs improper conduct with Perez to the media in a January 23, 2013 press release. Id. at 25-26. In all, dealing with Perezs legal charges and cleansing the investigative record diverted time, energy, and resources away from processing the Investigation for an additional four months. In total, for nearly 17 months of a 24-month Investigation, the enforcement staff made no progress in the football investigation or at a minimum operated far below optimal efficiency because the collateral effects of the illegitimate investigative tactics diverting its full attention from the Investigation. b) The Investigation was Plagued by Incompetent Management and Enforcement Staff Personnel Turnover.

On numerous occasions, the Cadwalader Report referred to the Investigation as one of the NCAAs most significant investigations. See Cadwalader Report, p. 40. Despite the gravity of the case and the public visibility and scrutiny that followed an August 2011 Yahoo! Sports article that documented Shapiros sensationalized allegations of rules violations occurring within the Universitys football and mens basketball programs, the enforcement staff failed to make prudent staffing decisions. Evidence to support this claim can be found in the Cadwalader Reports conclusion that enforcement staff managers failed to exercise close oversight of Mr. Najjars activities. Id. Further evidence of the mismanagement of the enforcement staff throughout the Investigation can be found in the turnover of staff assigned to work on the case: Ameen Najjar. Najjars employment with the NCAA was terminated in May 2012. While the details surrounding Najjars dismissal have not been publicly disclosed, based upon the details in the Cadwalader Report, his dismissal was not related to his decision to

Notably, the NCAA did not advise the University that the enforcement staff had disregarded the advice of the NCAAs legal department until January 10, 2013, 3 and months after the fact.
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disregard the advice of the NCAAs legal department. Even more troubling than Najjar actually following through with the Perez plan was that Najjar, who was in charge of supervising the lead investigators (Johanningmeier and Barnhart) in the case, lacked the judgment and perception to even consider that the enforcement staff was over-reaching its authority with the Perez Plan. See Cadwalader Report, p. 37. That Najjar participated in conduct separate and apart from this egregious abuse of discretion and authority that forced the NCAA to terminate his employment in May 2012 indicates a pattern of improper, unethical, or incompetent behavior on his part that undermines the confidence the University has that Najjar ever satisfactorily handled his responsibilities as a supervisor in connection with the Investigation. It is of note that Najjar also wrote a glowing letter of support on behalf of Nevin Shapiro to the judge presiding over the criminal proceedings vouching for Shapiros credibility before a single interview had been conducted in the Investigation. See Exhibit 2. That Najjar could represent to a judge that a convicted swindler was a credible individual before a single interview corroborated Shapiros assertions defies any logical explanation and confirms the enforcement staffs stubborn refusal to acknowledge the possibility that Shapiro might not be telling the truth a belief that it still holds to this day. The enforcement staffs blind faith in Shapiro is the only plausible explanation for Najjars indication in the same letter that the NCAA was considering retaining Shapiro as a consultant.9 Abigail Grantstein. Grantsteins employment with the NCAA was terminated in December 2012. Up to that point, Grantstein had served as the lead investigator in the basketball portion of the Investigation. The circumstances surrounding Grantsteins dismissal exemplify the enforcement staffs prevailing attitude of guilty until proven innocent an attitude that has been on display throughout the Investigation. Grantstein was terminated for conduct related to her investigation of a current mens basketball student-athletes amateur status.
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In that case, Grantsteins boyfriend disclosed to

The Cadwalader Report fails to evaluate or even mention the letter despite discussing in detail a letter that counsel for Shapiros bankruptcy trustee wrote to the sentencing judge just three days after Najjars letter (documenting Shapiros work in assisting the bankruptcy trustee in the recovery of funds). See Cadwalader Report p. 36. Once again, this casts serious doubt into the thoroughness and impartiality of the Cadwalader Report.

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passengers on an August 2012 commuter flight that Grantstein had told him that she knew that the student-athlete was dirty and that she was going to get [him]. Grantsteins boyfriend told passengers that he could guarantee that the student-athlete would not play during his freshman season. Grantstein had expressed these opinions to her boyfriend despite the fact that she had not yet received or reviewed financial documents relevant to the investigation of the student-athletes amateur status or interviewed key parties to the investigation. See Exhibit 3. Grantsteins mindset of attempting to get subjects of NCAA investigations rather than to develop full and unbiased evidence that aids in a determination of the truth greatly concerns the University because, as discussed in Item 6 of this Argument Section, Grantstein displayed this attitude in her questioning of Investigation witnesses. Furthermore, it appears that this desire to get member institutions, coaches, and student-athletes was instilled in Grantstein by her supervisors. Rich Johanningmeir. At the commencement of the enforcement staffs Investigation, it was common knowledge within the enforcement staff that Johanningmeiers retirement was imminent. Given the volume and gravity of the allegations alleged, the enforcement staff was aware that the Investigation would require a substantial time commitment. Proper management would have dictated assigning an investigator to Miamis case who was in a better professional position to dedicate the necessary time and who was more likely to remain with the enforcement staff until the conclusion of the Investigation and through the processing of the case. Nevertheless, Johanningmeir was assigned as lead investigator from February 2011 into the summer of that year.10 The mismanagement of the enforcement staff and the personnel turnover stalled the Investigation as replacements had to familiarize themselves with the expansive investigative record. Also inexperienced investigators being vested with responsibilities and authority in one
In the spring of 2011, Johanningmeier led what was essentially a solo effort in investigating the University, as he conducted 19 interviews with Nevin Shapiro. In the summer of 2011, the enforcement staff restructured to take more of a team approach in the Investigation and, as documented in the Cadwalader Report, Johanningmeier withdrew from active involvement in the case. Despi te this demonstrated disinterest in the case, Johanningmeier remained as a lead investigator until May 2012. The University is gravely concerned that one of the lead investigators in the case was allowed to essentially shirk his caserelated responsibilities for almost an entire year. This is certainly additional evidence of severe mismanagement.
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of the NCAAs most high profile cases led to further inefficiencies in the case. Barnhart, who had less than three years of experience on the enforcement staff at the commencement of the Investigation, was the driving force behind it from the summer of 2011, when Johanningmeier withdrew from active involvement in the case.11 Furthermore, prior to joining Barnhart as a lead investigator in the Investigation, Molly Richman had virtually no experience working on major infractions cases (Richman was working in an arm of the enforcement staff that had no responsibilities in processing major infractions cases when she was reassigned). The wisdom of assigning such inexperienced employees to lead what the Cadwalader Report proclaimed as one of the NCAAs most significant cases is perplexing and undoubtedly led to inefficiencies that precluded the University from receiving a timely resolution of the Investigation. The most damaging result of the prolonged Investigation may be the enforcement staffs failure to interview Paul Dee, the Universitys Athletics Director during the relevant time and a former member and chair of the COI. Dee could have provided the enforcement staff with invaluable insight into the Universitys relationship with and monitoring of Shapiro. Unfortunately, Dee passed away in May 2012, without ever having been afforded the opportunity to provide the enforcement staff with his perspective. At the time of Dees death, the enforcement staffs investigation of the University had already been active for 14 months. An efficient and pragmatic investigation would have made interviewing an individual like Dee who was so knowledgeable about the Universitys athletics and compliance programs and so respected in the collegiate athletics landscape a top priority. The lengthy Investigation, which was directly related to the impermissible investigative tactics and mismanagement of the Investigation, led to other damages, none of which the Cadwalader Report chose to address. These include, but are not limited to: (1) the excessive amount of time, energy, finances, and resources that the University has devoted to the Investigation; (2) the cloud of uncertainty hanging over the Universitys football and mens basketball program for the last two seasons (and possibly a third); and (3) the media stories that have irretrievably besmirched the reputation of the Universitys head football coach, Al
The Cadwalader Report identified Najjar as the investigator who assumed primary investigative responsibilities in the Investigation when Johanningmeier effectively withdrew from the case. A review of the interview transcripts indicates that Barnhart was the lead investigator in the field from the summer of 2011 forward, as Najjar only attended interviews intermittently, and did not take an active role in questioning witnesses in the interviews that he did attend.
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Golden.12 All of these are real damages which cannot be undone by the Cadwalader Reports attempted sanitizing of the enforcement staffs misconduct 2) Student 1s Interview Should have been Expunged from the Record and Barnhart has Misled the University as to the Circumstances Surrounding Student 1s Interview a) Background as to the Student 1 Interview

On February 24, 2012, former University student-athlete Student 1 was interviewed by Johanningmeier. During the course of the interview, Student 1 provided Johanningmeier with information that was used to substantiate Allegations 1-(b), 1-(c), 1-(d), 1-(q), 2-(e), and 2-(f) of the Notice. Although the University had been working cooperatively with the enforcement staff and had participated in virtually all of the legitimate interviews conducted in connection with the Investigation from August 2011 forward, the University was not informed of, nor a party to, Student 1s interview. The University did not learn that Student 1 had been interviewed until April 20, 2012, when it was informed that the enforcement staff was going to interview Student 3, a sophomore running back at Florida State University, in connection with information, improperly obtained from Allen, regarding Student 3s recruitment to Miami. In discussing the upcoming Student 3 interview with the University, Barnhart mentioned that the enforcement staff had conducted interviews with Student 1 (February 24, 2012) and Allen (March 15, 2012 as with Student 1, the University was not aware of, nor a party to, Allens interview) in the preceding months. Upon questioning by the University, Barnhart indicated through email

Allen was deposed on December 19, 2011 and Huyghue was deposed on December 28, 2011. On February 21, 2012, both the Miami New Times and the Miami Herald ran articles which made reference to Allens deposition transcript. Although Perez initially blamed the University for leaking the transcripts, as explained to the Cadwalader attorneys, the University did not receive the deposition transcripts until after the stories ran in the media as the court reporter hired by Perez had refused to provide them. Additionally, it was the University who provided copies of the transcript to Allens attorney. Thus, the only person who could have provided the transcripts to the media was Perez, the very person who was hired by the NCAA for the sole purpose of taking the depositions. Despite the fact that it could only have been Perez who provided the transcript to the media, on March 13, 2012, Lach and Najjar advised President Shalala that the NCAA was commencing an investigation into recent leaks of information to the media and strongly insinuated that the University was responsible for such leaks. Only at the Universitys insistence did Lach agree to investigate whether the source of the leak was within the NCAA. Several months later, after prodding by the University, Najjar advised that the investigation had discovered no wrongdoing by the University. That the University would be subjected to such an investigation when it was the enforcement staffs actions that led to the leaks is yet one more instance of the enforcement staffs unprofessional conduct.
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correspondence that the interview with Student 1 was conducted at Student 1s request when Student 1 reached out to Rich [Johanningmeier]. Exhibit 4.13 b) Cadwalader Failed to Consider that the Student 1 Interview was Tainted

In October 2012, the enforcement staff, with the assistance of Naima Stevenson from the NCAAs legal department, reviewed the investigative record to identify and exclude tainted information. Cadwalader Report, p. 27. The Cadwalader Report explained that in fulfilling its charge from President Emmert to review the enforcement staffs October 2012 cleansing of the investigative record, it reviewed each and every factual assertion in the investigative record to ensure that it did not contain any information derived from testimony or documents associated with Messrs. Allens and/or Huyghues depositions. Id. at 28. The Cadwalader Report further stated that the firm identified independent evidentiary bases for every factual assertion in the investigative record. Id. In independently checking the evidentiary basis for every factual assertion in the investigative record, the Cadwalader firm claimed to have reviewed and analyzed over 75 interview transcripts and voluminous other records, including bank account documents, receipts, photographs, and other evidence. Id. The Cadwalader Report concluded that the enforcement staff had properly cleansed the investigative record of any evidence derived directly or indirectly from the improper depositions of Allen and Huyghue. Accordingly, the enforcement staff proceeded with issuing the Notice the very next day on February 19, 2013, that it asserted had been double-checked to ensure that it did not contain allegations based on tainted information. However, as referenced above, the Notice contained several allegations that were substantiated either completely or in large measure from testimony provided by Student 1 in his February 24, 2012 interview. In conducting its own review of the investigative record, the University questioned, almost immediately, whether Student 1s interview was obtained and improperly influenced by information that the enforcement staff had received from Allen. Upon reviewing the findings of the Cadwalader Report and the allegations contained in the Notice, the University learned that

In addition to the attached email, Barnhart also asserted that Student 1 requested the interview with the NCAA during telephone conversations in April 2012.
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Student 1s interview remained in the enforcement staffs investigative record. 14 The University was troubled by this for the following reasons: Information provided by both Student 1 and Allen indicated that they had a friendly relationship, and quite possibly still communicated with one another. As a result, the enforcement staff and Cadwalader should have explored the possibility that Student 1s decision to be interviewed by the enforcement staff was influenced by his knowledge that Allen had been (impermissibly) deposed. The timing of Student 1s interview was peculiar: o The enforcement staff informed the University on multiple occasions that it was Student 1 who had reached out to the staff and expressed a desire to be interviewed. The February timing of this alleged course of events puzzled the University because it was approximately six months after Yahoo! had released its story making the allegations public. The media firestorm surrounding the

sensationalized allegations had long since died down in public circles. Thus, Student 1s spontaneous decision to contact the NCAA in February 2012 as opposed to August or September 2011 was suspicious. o The University was not informed of and thus did not participate in Student 1s February 24, 2012, interview and Allens March 15, 2012, interview. Moreover, from December 15, 2011, to April 26, 2012, Student 1 and Allen were the only two parties interviewed in connection with allegations of impropriety within the football program (Allen was deposed on December 19, 2012, and Huyghue was deposed on December 28, 2012; the only other interviews that took place

between December 15, 2011, and April 26, 2012 were in connection with allegations levied against the mens basketball program). Given these facts, and the close proximity of time between Allens deposition, Student 1s interview, and Allens second interview with the NCAA, a connection between the interviews should have been explored.
Upon reviewing the secured website, the University learned that a small portion of Student 1s interview had been redacted, but portions of the interview substantiating allegations charged in the Notice remained. The University takes great issue with the manner in which information related to suppressed and redacted interviews was presented to the University and other involved parties through the secure website, but addresses those issues in Item 3 of this Argument Section.
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o Student 1 was interviewed approximately six months before any other former student-athlete was interviewed (the next, Student 4, was interviewed on August 14, 2012). The enforcement staff did not even begin to seek the Universitys assistance in contacting former student-athletes until April 2012. This further highlighted Student 1s interview as an outlier when compared to the rest of the investigative record. In his interview, Student 1 did not readily offer information pertaining to impermissible benefits that he received from agent Huyghue. Student 1 acknowledged receiving those benefits only after Johanningmeier asked him specific questions regarding the benefits. Since Allen was the only witness to those benefits (and Huyghue denied providing any such benefits when he was (impermissibly) deposed), the logical inference is that the enforcement staff never would have asked Student 1 about those benefits had they not improperly received the information from Allen.15 c. The Universitys Inquiry into the Possibility that Student 1s Interview was Tainted was dismissed by Barnhart

On February 19, 2013, prior to the enforcement staff issuing the Notice to the University, outside counsel for the University, Kieran Piller, had a telephone conversation with Barnhart and Richman regarding the evidence that the enforcement staff had to substantiate allegations in the pending Notice.16 Piller asked Barnhart about her knowledge of the circumstances surrounding Student 1s decision to be interviewed by the NCAA. While Barnhart was unsure of some of the details, she unequivocally stated that Student 1 had contacted Johanningmeier out of the blue and offered the information contained in the Notice (Piller specifically asked Barnhart if Student 1 had contacted the enforcement staff or if the enforcement staff had contacted Student 1). Piller stated that, from the testimony provided, it appeared as if Student 1s interview and Allens deposition and subsequent interviews could have been connected. Barnhart responded that to her knowledge, there was no connection between Student 1s decision to contact the NCAA and Allens deposition and subsequent interviews.
Although Allen did not discuss the benefits that Huyghue had provided to Student 1 on the record until his March 15, 2012, interview with the enforcement staff, by the enforcement staffs own admission, it had had off the record conversations with Allen in the spring of 2012 where he provided investigators with information pertaining to alleged NCAA rules violations. 16 The University had access to a draft of the Notice prior to its official release.
15

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On February 20, 2013, after the Notice had been issued, Piller contacted Student 1 to ascertain the circumstances surrounding his decision to contact the NCAA. Student 1 informed Piller that he did not contact the NCAA, but rather, Student 1 stated that Johanningmeier contacted him to request the interview. Student 1 stated that the only reason he responded to the NCAAs interview request was because he was aware that Allen had been deposed on the matter. On February 25, 2013, Piller conducted a recorded interview with Student 1. During the interview, Student 1 stated that in no way, shape or form did I reach out to the NCAA requesting an interview in February 2012. Exhibit 5, p. 1. Student 1 reported that

Johanningmeier contacted him on February 23, and Student 1 agreed to be interviewed on February 24, 2012. Student 1 stated that going into [the interview] I did know that, you know, Allen was involved in a deposition two weeks prior to my call, so I knew that I knew that the information had been given to the NCAA. Id. Student 1 further reported that he did not want to be involved in the Investigation whatsoever because I live and work a normal job just like everybody else, and really the last thing I wanted to do was, you know, have my name mixed up in this and have my familys name mixed up in this. Id. at 2. He stated that he only agreed to the interview with Johanningmeier because of his knowledge that the NCAA had already received information on potential NCAA rules violations from Allen. Finally, Student 1 stated that he never expressed to Johanningmeir that he did not want the University involved in the February 24, 2012, interview.17 Given that Student 1 never would have agreed to be interviewed by the enforcement staff were it not for his knowledge that Allen had been deposed, Student 1s interview should have been completely expunged from the investigative record and the Notice devoid of allegations that were charged based upon Student 1s testimony. Still puzzled by the facts surrounding the Student 1 interview, on March 14, 2013, Glazier called Barnhart. During this conversation, Barnhart disclosed that Johanningmeir had a confidential source that provided him with the information as to Student 1s receipt of the impermissible benefits. In other words, Barnhart would have the University believe that, even
Student 1 also expressed concern about information he had reported to Johanningmeier being leaked to the media, contrary to Johanningmeiers promise that the interview and its contents would remain confidential. In a November 2012 blog, Miami Herald columnist Barry Jackson referenced information that Student 1 provided to the enforcement staff during his interview. See Exhibit 6. Information from Student 1s interview being leaked to the media is further evidence of unprofessional and unethical conduct on the part of the enforcement staff.
17

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though the enforcement staff had a confidential source reporting that Student 1 had received impermissible benefits as a student-athlete, the enforcement staff chose to sit back and wait until Student 1 called them rather than reaching out to him directly to confirm the veracity of the sources information. The absurdity of such a position speaks for itself and it is now beyond obvious that Student 1 did not out of the blue contact the enforcement staff and that Barnhart has repeatedly misled the University. In light of such conduct, Barnhart should be immediately removed from any continuing involvement with the Universitys case. Perhaps the most troubling aspect of Student 1s tainted interview is the additional questions it raises as to the enforcement staffs competency, integrity and motives in t he manner it conducted the Investigation and the enforcement staffs decision to issue the Notice without seeking to answer the following questions: Why was the University not invited to participate in Student 1s interview or even promptly notified that it had occurred? Why would the enforcement staff repeatedly mislead the University as to the circumstances surrounding the arrangement of Student 1s interview? Information that Student 1 reported to the enforcement staff was leaked to the media. See Exhibit 6. Did the enforcement staff violate the NCAAs confidentiality Bylaws? Did the enforcement staff actively fail to divulge to Cadwalader the possibility that Student 1s interview was connected to Allens deposition and subsequent interviews despite numerous red flags indicating a possible connection in order to ensure that the interview would not be expunged from the investigative record, thus detracting from the enforcement staffs goal of charging the most salacious allegations at all costs? If the enforcement staff could not properly investigate itself to sufficiently cleanse the investigative record (even with outside help), how can the University have confidence that that the enforcement staff competently carried out the Investigation? These lingering questions resulting from the enforcement staffs treatment of the Student 1 interview make it impossible for the University to have any confidence in the motive, competency or investigative tactics employed by the enforcement staff throughout the Investigation.

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Furthermore, concealing from the University for two months the fact that Student 1 was interviewed in February 2012 (as the enforcement staff chased various leads that resulted from impermissibly obtained evidence) and then misleading the University as to the circumstances under which Student 1s interview was arranged, is further evidence of a lack of good faith on the part of the enforcement staff. Even more troubling is that in the midst of unprecedented public scrutiny for its investigative tactics, including perceived unethical and deceitful behavior, the enforcement staff repeatedly misrepresented to the University that Student 1 had initiated contact and requested an interview. This false statement amidst the highest of scrutiny forces the University to question the extent of incompetence and/or deceit exhibited by the enforcement staff and calls into question the fundamental fairness and propriety of allowing the same tainted enforcement staff to prosecute the case before the COI. Clearly, an investigation that is

spearheaded by a tainted enforcement staff is one that is bereft of credibility before all member institutions of the NCAA, student athletes, prospective student athletes, and the general public. 3) The Brody Waters September 12, 2012 Interview was Excluded even though it Contains Exculpatory Material with no Explanation to the University as to why it was Excluded The treatment of the secured website serves as another example of incompetent and uncooperative behavior on the part of the enforcement staff. As evidenced in Chairman Banowskys February 27 letter, the enforcement staff led the COI to believe that it would segregate interviews that were tainted by its impermissible investigative tactics from the rest of the investigative record so that the University and involved parties could easily identify and analyze the tainted evidence. Instead, the enforcement staff buried suppressed and redacted transcripts in the middle of almost 1,300 other evidentiary documents including pictures, bank records, phone records, credit card statements, receipts, and other documentary evidence collected of over the course of the two-year Investigation with insufficient and ambiguous labels, and no explanation whatsoever as to the information and thought processes relied upon in suppressing particular interviews or redacting specific portions of interviews.18 As claimed in the Cadwalader Report, the enforcement staff painstakingly reviewed the investigative record in order to identify and expunge all tainted information. Accordingly, the enforcement staff had
For a screen shot of the haphazard and unorganized manner in which the enforcement staff uploaded suppressed and redacted interviews onto the secured website for the University and involved parties to evaluate, see Exhibit 7.
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clearly previously organized the suppressed and redacted interviews in a coherent fashion. Thus, failing to present those interviews to the University and involved parties in a similarly coherent fashion, even as the enforcement staff faced the highest scrutiny for its investigative tactics, is inexcusable.19 The University is particularly concerned with a September 12, 2012, interview of Brody Waters that it found embedded in the middle of documentary evidence that had nothing to do with suppressed and redacted interviews in the Misc case documents section of the secured website.20 Waters was employed at Axcess Sports and Entertainment, from 2002 until 2007, the sports agency in which Shapiro invested. As with the Student 1 interview, the enforcement staff conducted its interview with Waters without first notifying the University or inviting it to participate. The enforcement staff failed to inform the University of the interview despite the fact that enforcement staff were in daily contact with the University and its representatives in September 2012 regarding the Haith and Morton interviews. In fact, the enforcement staff never alerted the University that the interview had taken place. The University only learned of the interview through its review of the secured website. Upon reviewing the contents of the

interview, the University cannot determine why it was expunged from the investigative record. Since the enforcement staff has not provided the University with any explanation as to how it arrived at its conclusions of what constituted good information that remained in the investigative record and what constituted bad information that was removed from the investigative record, the University can only surmise as to why Waters interview was fully expunged from the investigative record while information from other interviews that was clearly tainted (e.g., information from Student 1s interview) remained in the investigative record. Given the enforcement staffs pervasive lack of good faith behavior, the University is led to the conclusion that Waters interview was fully expunged from the record because it offered

The manner in which the suppressed and redacted interviews were presented to the University for review was so incoherent that, at the direction of the COI, the enforcement staff sent instructions that involved seven distinct steps to assist the University in finding the relevant documents on the secured website. See Exhibit 8. The enforcement staff also scheduled a walk through session to explain the instructions to the University. Notwithstanding this assistance in viewing the suppressed m aterials, the fact of the matter is that the suppressed materials were never segregated from the rest of the investigative record and were presented in a manner that made it impossible for the University to sufficiently evaluate the evidence. 20 The University notes that the instructions to access suppressed and redacted interviews provided by the enforcement staff on March 5 still did not fully isolate those interviews from other unrelated documents.
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exculpatory evidence of some of the more substantial allegations in the case that the enforcement staff was determined to charge against the University and that were included in Allegation 2 of the Notice. Also of interest regarding Waters interview is the fact that it occurred in September 2012, after, by the Cadwalader Reports own conclusion, the enforcement staff had received invoices from Perez in excess of $57,000, indicating that, contrary to the enforcement staffs professed understanding of its agreement with Perez, Perez did in fact intend to be paid for billable work she conducted in connection with her manipulation of federal bankruptcy proceedings on behalf of the enforcement staff. As the Cadwalader Report documented, these invoices raised significant red flags with the enforcement staff as to the propriety of its arrangement with Perez.21 Despite these red flags, the enforcement staff went forward with interviewing Waters. Less than a month later, in reviewing the investigative record for tainted information, it determined that Waters interview was connected to information it had impermissibly obtained in depositions. This serves as another example of the enforcement staff failing to make responsible and prudent decisions during the course of the investigation. If the enforcement staff held a good faith belief that Waters interview was connected to impermissibly obtained information, as one would deduce by its exclusion from the investigative record, then conducting the interview in light of the red flags raised by Perezs invoices is inexcusable. 4) The Enforcement Staff Disregarded the Agreement between the Former Vice President of Enforcement and the Universitys Former Athletics Director and Commenced Interviews with Nevin Shapiro without Informing the University On August 29, 2010, Barry Jackson of the Miami Herald wrote a newspaper article in which he reported, Shapiro is writing a book about the UM football program in which he alleges former Canes players committed NCAA violations. Exhibit 9. The article did not offer any specifics in regard to Shapiros claims. In response to this report, Judd Goldberg, the Universitys Associate General Counsel, wrote to Perez (who was Shapiros criminal attorney at that time), and stated, If Mr. Shapiro has any evidence to corroborate his questionable allegations, the University hereby demands that such information be disclosed by the close of business on Tuesday, September 7, 2010, so that the information may be investigated and
This issue is discussed in detail in Item 8 of this Argument Section.

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verified.

Exhibit 10.

Despite this effort to obtain additional information from Shapiro

regarding his allegations of NCAA rules violations, Shapiro never provided the University the requested information. Additionally, the University contacted David Price, the former NCAA Vice President of Enforcement, to alert the NCAA of the vague allegations referenced in the August 2010 Miami Herald article and of the Universitys futile attempt to obtain additional information from Shapiro. Price thanked the University for alerting him of the situation, and told the University that he did not think there was sufficient information at that time to warrant the University taking any additional action. At the conclusion of the telephone conversation, the University and Price agreed that if either party received additional information on the matter, they would contact the other party and launch a joint-investigation. In his July 11, 2012, interview with the enforcement staff, Kirby Hocutt, the Athletics Director at the University in August 2010, described the NCAAs agreement with the University regarding Shapiros vague allegations by stating, [i]t was very clearly communicated with both of us that if any information came forward it would be a joint investigation.22 Despite the agreement with the former Vice President of Enforcement, the enforcement staff covertly and repeatedly interviewed Shapiro and other witnesses connected to the Investigation for seven months before informing the University that it had commenced an investigation based upon Shapiros allegations of NCAA rules by the University. This was contrary to the NCAAs prior agreement with the University, and set the tone for the enforcement staffs repeated failure to adhere to the NCAAs principle of cooperation and to deal with the University in good faith throughout the Investigation. 5) The University did not Condone the Perez Plan and was Materially Misled as to the Details of the Perez Plan The University strongly rejects as plain wrong and unsupported by any credible evidence many of the statements in the Cadwalader Report regarding the Universitys response to learning
When asked during his July 11, 2012, interview whether he ever considered attempting to interview the former student-athletes named in Jacksons August 2010 article, Hocutt stated that the Univer sity did not have any specific or credible information at the time to justify conducting interviews with the former studentathletes. Hocutt further reported, David [Price] confirmed that the steps we were taking with the communication with the attorney was appropriate and that we were doing everything that we needed to be doing at that time.
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that the enforcement staff planned to obtain and use in the Investigation information that Shapiros attorney gathered during depositions related to federal bankruptcy pro ceedings. Not highlighted in the Cadwalader Report is the fact that the University had no contemporaneous knowledge of the enforcement staff retaining Perez for that purpose. The University believes that the statements made on this matter provide additional proof that the Cadwalader Report was biased from the start and based on a hasty investigation. As a result, many of the conclusions drawn were wholly inaccurate and displayed a predisposition to portray the NCAA and its employees in the most positive light possible under the circumstances. Despite the Universitys belief that the extent of the enforcement staffs involvement in the depositions was merely to receive information that was reported during depositions that would have occurred regardless of the enforcement staffs involvement, the University still had serious concerns about the propriety of the enforcement staff suggesting questions for Perez to ask during depositions taken through federal bankruptcy proceedings. The University expressed these concerns in an October 11, 2011, email from Goldberg to Najjar. In the email, Goldberg advised that Perez was not a member of the bankruptcy court in South Florida and that the University had received no indication from the bankruptcy trustee that he is working with Ms. Perez. Goldberg also documented the Universitys overarching concern with the appropriateness of the enforcement staff assisting or directing Perez in the depositions and the possibility of information being provided to the media by stating, [W]e continue to have concerns about this proposal and the attendant loss of control (emphasis added). Even more, Goldberg informed Najjar that the University would be eager to share their concerns on the matter with the NCAAs legal department if the enforcement staff thought that would be helpful. See Exhibit 11. Najjar responded to Goldbergs email on October 12, 2011, rebuffing some of the Universitys concerns by stating that Perez could legally represent Shapiro in a bankruptcy matter. However, he did not address the Universitys concerns with the attendant loss of control of the Investigation. In subsequent telephone conversations, the enforcement staff informed the University that it was going forward with its plan to use information obtained from Perezs planned depositions of witnesses in federal bankruptcy court in the Investigation. The enforcement staff made this decision without ever giving University representatives the 25
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opportunity to express to the NCAAs legal department its concerns regarding the depositions, as Goldberg had suggested in his October 11, 2011, email to Najjar. Additionally, at no point during the subsequent telephone conversations did Najjar state, either directly or indirectly, that the enforcement staff was paying Perez for her time and expenses. Instead, the University and its counsel were misled into believing that Perez would simply be sharing transcripts of depositions that were to be taken in the bankruptcy case regardless of the enforcement staffs purported overlapping interest in the matter. Given the Cadwalader Reports conclusion that the NCAA legal staff had instructed the enforcement staff not to utilize the federal bankruptcy court in order to depose key witnesses in the Investigation, it logically follows that the enforcement staff was aware that any conversations between its legal department and the University would have led to further pushback from the University and ultimately precluded the enforcement staff from moving forward with its unethical plans to obtain the depositions through Perez. In short, the enforcement staff actively thwarted the Universitys suggestion that it discuss the matter with the NCAAs legal department. This solidifies the absurdity of the Cadwalader Reports inference that the University approved of or supported the enforcement staffs manipulation of the federal bankruptcy court in its Investigation in any way. Once it became clear to the University that the enforcement staff was going to use information from the depositions in its case against the University, despite its continued reservations about the rank impropriety of such an investigative tactic (once again, reservations that the University had without even having knowledge that the enforcement staff was paying for Perezs services), the University did not post any additional authoritative objections because it did not want to risk the enforcement staff charging that it had been uncooperative in the Investigation or appear as if it did not support the enforcement staff in finding the truth of the allegations at issue. Indeed, the enforcement staff have not been reticent to utilize the threat of being cited for a violation of the cooperative principle as a device to discourage institutions under investigation and their representatives from questioning the professional conduct and/or investigative tactics of the enforcement staff. Raising such concerns can incite the enforcement staff to over-reach in its investigative tactics in attempts to exert what it appears to believe is the broad power of the 26
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threat of a violation of the cooperative principle, resulting in prolonged investigations and causing the subject institution to incur increased expenditures of time, money, and resources. As a result, practitioners experienced in the NCAA infractions process have found that after voicing concerns and objections a number of times, any further inquiries will fall upon deaf ears. The enforcement staffs belief that the defrauding of a federal court in concert with the criminal attorney of a Ponzi scheme architect was a reasonable investigative tactic demonstrates how distorted its understanding of the breadth of its authority and the boundaries of proper and ethical investigative tactics has become. As laid out in the Cadwalader Report, then Vice President of Enforcement Lach, Managing Director of Enforcement Hosty, then Director of Enforcement Najjar, and then Associate Director of Enforcement Johanningmeier all failed to recognize or even consider whether the Perez plan would be overstepping the Enforcement Divisions investigative authority until the NCAAs legal department raised that concern in October 2011. See Cadwalader Report, p. 14-17. This lack of appreciation for the limit of its authority is exemplified by Johanningmeier, who led the Investigation prior to his retirement in May 2012, and who still maintains that there has been an overreaction to the issue [of retaining Perez to depose uncooperative witnesses]. See Cadwalader Report, p. 45. Such a cavalier attitude among investigators in regard to the boundaries of their authority permeated the entire Investigation and despite the Cadwalader Reports attempt to whitewash the enforcement staffs egregious conduct by wrongly implying tacit approval of the Perez plan by the University, such unprofessional and unethical behavior should not be countenanced by the COI. 6) The Tactics Employed During the Questioning of Frank Haith and Jake Morton were Impermissible and Unethical During the Investigation, Barnhart and Grantstein exhibited the enforcement staffs fixation on obtaining evidence that substantiates the most scandalous allegations involving the most high-profile individuals at the expense of behaving in an ethical manner and in accord with the NCAA Bylaws in their questioning of former Miami Head Mens Basketball Coach Frank Haith and former Miami Assistant Mens Basketball Coach Jake Morton. In interviews with Haith and Morton, Grantstein and Barnhart provided the interview subjects with false information regarding what other interview subjects had reported in attempt to elicit confessions of NCAA rules violations. While this investigative tactic is clearly in opposition to the NCAAs 27
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bedrock principles of honesty, integrity and cooperation, it was also identified as an impermissible investigative tactic for NCAA investigators to employ in the Cadwalader Report. Cadwalader Report, p. 38. a) The enforcement staff misled Jake Morton during his September 19, 2012, Interview

After Morton repeatedly denied that he had contemporaneously informed Haith of his intention to use a June 10, 2010 check that Haith had written to Morton in order to repay Nevin Shapiro for a previous personal loan, the enforcement staff informed Morton that Haith had reported that Haith did in fact write Morton the check on June 10, 2010, with knowledge that Morton was going to use the money from the check to repay Shapiro for a personal loan. Still, Morton maintained that to his knowledge, Haith did not know about Mortons personal transaction with Shapiro until Shapiros allegations were publicly reported in the August 2011 Yahoo! article. After Mortons repeated denials of Haiths contemporaneous knowledge of his transaction with Shapiro (denials that Morton consistently maintained during two separate interviews), Barnhart, in an effort to flip Morton against Haith, knowingly provided Morton with the following false information: Ill be honest, [Haith] put a lot of the relationship between the mens baske tball program and Nevin on you. And that, Im just going to put it out there for you to respond, specifically that you were the first person to know Nevin, that youre the one . . . you were essentially the one that kind of brought Nevin into the program, that he didnt really know Nevin as well as you did. And so, I just wanted to give you an opportunity to respond to that. September 19, 2012 Jake Morton Interview Transcript, p. 113. Based upon an analysis of Haiths interviews, it is clear that this statement was false. In his September 5, 2012, interview, Haith made repeated statements that are the complete opposite of what Barnhart reported to Morton. Haith reported that Shapiro was introduced to the mens basketball program through the Universitys development office, not Morton. September 5, 2012, Frank Haith Interview Transcript, p. 89. Haith also reported that he had no knowledge of how Mortons relationship with Shapiro developed and that he believed that he was the one who introduced Morton to Shapiro. (Id. at 94-96)

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At no time during his interviews with the enforcement staff did Haith ever report that Morton was the first person to know Nevin or that Morton brought Nevin into the program as Barnhart relayed to Morton. Haith acknowledged that Morton had a relationship with Shapiro, but made no other assertions. Barnharts false statements to Morton were clearly an attempt to make Morton believe that Haith had thrown him under the bus in order to trigger Morton to provide the enforcement staff with condemning information on Haith. This investigative tactic is clearly contrary to the NCAAs principles, procedures, and expectations, and is further evidence of the enforcement staffs bad faith and unethical behavior in the Investigation. b) The enforcement staff misled Frank Haith during his September 5, 2012 Interview In Haiths September 5, 2012 interview, Grantstein who, as explained above, was fired from the enforcement staff for her attitude of attempting to get high profile figures in collegiate athletics misrepresented to Haith that Morton reported to the enforcement staff that he had delivered $10,000 in cash to Shapiros mothers house on June 10, 2010. In truth, Morton reported that he delivered $5,000 to Shapiros mothers house to repay a previous loan he had received from Shapiro, not $10,000. Morton detailed the delivery of that $5,000 to Shapiros mothers house in his interviews on October 13, 2011 (pg. 26-29) and September 19, 2012 (pg. 101-109). Grantstein also told Haith that Mario Sanchez, Shapiros former bodyguard, reported that Morton delivered $10,000 to Shapiros mothers house. To the Universitys knowledge, Sanchez was never interviewed.23 Grantsteins intent to mislead Haith is evident in the fact that after she provided false information to Haith regarding Morton, Haith specifically asked her if Morton had indeed reported that he delivered $10,000 to Shapiros mothers house, and Grantstein responded affirmatively, thus stating false information on the record on two separate occasions. This willful deceit not only sheds light on the relevant enforcement staffs lack of investigative ethics in this case and demonstrates the very attitude for which Grantstein was ultimately terminated, but has also irreparably tainted the Investigation.

Based upon a review of the secured website, it appears as if the NCAA did receive information from Perez about a pre-deposition conference that she conducted with Sanchez where he stated that he assisted Morton in delivering $10,000 to Shapiros mother in June 2010. However, that information was impermissibly obtained (and has been suppressed), and serious red flags about the propriety of the Perez arrangement had already been raised with the enforcement staff by September 2012. As such, confronting Haith with information obtained from Sanchez was objectively improper.
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7) The Timing of the Enforcement Staffs Conclusion that Student 2 had Received Impermissible Extra Benefits is Highly Suspect The treatment of Student 2s withholding for the receipt of impermissible extra benefits is yet another example of the enforcement staff not abiding by the cooperative principle. Pursuant to a September 2011 document request, the University produced emails from former Assistant Mens Basketball Coach Jorge Fernandezs institutional account. Included in those emails was documentation of plane tickets and American Airlines miles redemption receipts that indicated that Fernandez may have provided extra benefits to student-athletes Student 2 and Student 5. These emails were discovered in February 2012 and Fernandez was questioned on the matter in his February 20, 2012 interview. Fernandez reported that he redeemed his American Airlines miles to obtain a flight for Student 5s mother to visit Student 5 in Miami. Student 5s mother was interviewed by the enforcement staff on February 24, 2012, and confirmed that Fernandez provided her with plane tickets for her and her daughter to visit Student 5 in Miami. As such, Student 5 was declared ineligible on February 24, 2012, repaid the value of the benefits, and was reinstated on February 29, 2012, after serving a one game suspension.24 Another of Fernandezs emails indicated that he may have redeemed American Airlines miles to obtain a round-trip flight between Miami and New York for Student 2 in August 2010. During his interview, Fernandez indicated that he had no recollection of redeeming miles to obtain a flight for Student 2. On February 23, 2012, the enforcement staff interviewed Student 2. He had no recollection of how the plane ticket in question was obtained and reported that his mother typically arranged his travel. When, on February 24, 2012, the University and the enforcement staff determined that sufficient evidence existed to declare Student 5 ineligible, the University asked the enforcement staff, specifically Barnhart and Grantstein, about declaring Student 2 ineligible. Barnhart and Grantstein responded that despite a receipt indicating that Fernandez had used his airline miles to obtain a ticket in Student 2s name, they did not feel that there was sufficient evidence to declare Student 2 ineligible, at least not until they conducted additional interviews.

Student 5 had no knowledge that Fernandez had provided his mother with the airline tickets, and Fernandez had assured Erica Johnson that it was permissible for him to provide her with the tickets.
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On February 29, 2012, the enforcement staff interviewed Student 2ss mother.. Student 2s mother reported that she depended upon Witness 10, Student 2s former non-scholastic basketball coach, to book Student 2s travel because she was not proficient with technology.25 Although Student 2s mother could not remember the specifics of the flight in question, she reported that she could not remember a time when she did not reimburse Witness 10 for the flights he arranged for Student 2. After Student 2s mothers interview, Grantstein and Barnhart expressed to the University that they still did not believe that there was sufficient evidence to declare Student 2 ineligible. On March 9, 2012, Grantstein and Barnhart interviewed Witness 10 in regard to various issues in the Investigation in the presence of Piller, outside counsel to the University. Based upon the advice of his counsel, who was concerned with the discrepancies between Witness 10s recollection of given events and the information that the enforcement staff indicated they had received from other parties, Witness 10 terminated the interview before the enforcement staff had asked him any questions about Student 2s August 2010 flight. After Witness 10 terminated the interview, Grantstein and Barnhart called Najjar and privately discussed the interview. After approximately 20 minutes, Barnhart and Grantstein returned to the conference room and informed Piller that they, in consultation with Najjar, had decided that there was now sufficient evidence to conclude that Student 2 had received an impermissible extra benefit from Fernandez and that the University would have to immediately declare Student 2 ineligible and withhold him from competition. In response, Piller pointed out that, inasmuch as Witness 10 was never asked about Student 2s August 2010 flight, no additional implicating evidence had been collected since February 24 when the University declared Student 5 ineligible and was advised by the enforcement staff that Student 2 remained eligible. Barnhart and Grantstein told Piller that, despite the enforcement staffs proclamations, it was ultimately the Universitys decision not to withhold Student 2 earlier and that additional implicating evidence had been collected in that Witness 10 reported that Fernandez redeemed his airline miles to obtain a flight for Witness 10 (despite Fernandez testifying that he and Witness 10 had a longstanding relationship that preAn email from Fernandezs institutional account also indicated that he may have, on a separate occasion, redeemed his flight miles to obtain a flight for Witness 10. Note that Fernandez reported that he had a longrunning relationship with Witness 10 that commenced before Student 2 was ever a recruited student-athlete.
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dated Student 2s status as a prospective student-athlete or student-athlete at Miami). Although Witness 10 reported that he later reimbursed Fernandez for those miles, Barnhart and Grantstein stated that given that Witness 10 was associated with Student 2, his receipt of airline miles from Fernandez constituted an extra benefit for Student 2. Piller responded that he understood their position, but requested that he, Barnhart, and Grantstein initiate a call with Najjar and Mike Glazier, also outside counsel to the University, in order to fully discuss all of the issues before declaring Student 2 ineligible. Piller informed Barnhart and Grantstein that the Miami mens basketball team had an ACC tournament game that evening,26 and withholding Student 2 now when Student 5 had been declared ineligible two weeks earlier, and as such, was able to serve his withholding prior to the ACC tournament, seemed unfair. Barnhart and Grantstein informed Piller that they did not have time to discuss the issue because they had a flight to catch, but he and Glazier could call Najjar if they wanted. Glazier then made multiple attempts to contact Najjar, but Najjar did not respond or return any of Glaziers messages. Ultimately, Glazier had to call Hosty. After discussing the issue with Hosty, who had very limited knowledge of the situation, Glazier and University officials, although unhappy with the enforcement staffs timing in unilaterally deciding that there was sufficient evidence to declare Student 2 ineligible, decided that adhering to the cooperative principle and withholding Student 2 from that evenings game pursuant to the instructions of Barnhart and Grantstein was in the Universitys best interests. In processing Student 2s reinstatement, Student 2 was rightfully not held responsible for the airline miles Fernandez redeemed in order to obtain a plane ticket for Witness 10 (Student 2 had no knowledge of the arrangement). Rather, Student 2 was held responsible for the cost of a round-trip plane ticket between Miami and New York City based upon Fernandezs email that documented airline miles redeemed in Student 2s name in August 2010. Thus, Pillers assertion to Barnhart and Grantstein on March 9, 2012, was correct: if sufficient evidence existed to declare Student 2 ineligible on March 9, 2012, then sufficient evidence existed to declare Student

Student 2 was one of Miamis primary players and the game that evening had substantial implications. Miamis mens basketball team was squarely on the proverbial bubble for the NCAA tournament, and a win over their opponent that night, Florida State University, who was ranked 17 th nationally, could very well have catapulted them into the NCAA tournament field.
26

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2 ineligible two weeks earlier when the enforcement staff erroneously advised the University that insufficient evidence existed to withhold Student 2 at that time. From the time it interviewed Fernandez on February 20, 2012, to the time it interviewed Witness 10 on March 9, 2012, the enforcement staff did not collect any additional implicating evidence beyond Fernandezs email. Determining that the email in and of itself was sufficient evidence just two weeks later on the same day that Student 2 was set to play in the mens basketball teams biggest game of the year without affording the University the opportunity to discuss the enforcement staffs decision on the matter, perfectly exemplifies the incompetent, unprofessional, and uncooperative manner in which the enforcement staff treated the University throughout the Investigation. 8) Hannahs Involvement with Perez was More Extensive than that Disclosed by the Cadwalader Report thereby Requiring Her Disqualification from this Case On March 6, 2013, Allen contacted Glazier. Allen explained to Glazier that he had information that was not included in the Cadwalader Report and that would be of interest to the University. Allen stated that following the public disclosure of the enforcement staffs

impermissible arrangement with Perez, he evaluated the behavior that the enforcement staff had exhibited towards him throughout the Investigation and concluded that that behavior stood in sharp contrast to the Universitys behavior. Specifically, Allen stated that while the enforcement staff consistently acted in what he perceived to be an underhanded and manipulative manner, the University acted above-board and stressed to Allen on multiple occasions that its only interest was finding the truth of what had transpired. As such, Allen felt obligated to inform the University when he came across documentation that he believed should have been included in the Cadwalader Report, and therefore, provided Glazier with three documents. The first document is a June 3, 2011, letter from Najjar to Judge Susan Wigenton, the sentencing judge in Shapiros securities fraud and money laundering case, which is discussed in Item 1 of this Argument Section, above. The other two documents are emails between Hannah, the Director of Enforcement who is still supervising the processing of the Universitys infractions case, and Perez. The emails call into question whether Hannahs knowledge of the Perez agreement was as limited as claimed in the Cadwalader Report.

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The first email exchange is from July 6, 2012.

Perez emailed Hannah to discuss a

meeting Perez had scheduled on July 9, 2012, with a witness of interest to the NCAA. Perez explained to Hannah that she wanted to meet with the witness prior to his actual deposition in order to discuss areas of interest and to likewise narrow the issues in order to save time and money. In the email, Perez also stated a desire for Hannah to review [Perezs] outstanding invoices for the time expended and costs incurred to date (emphasis added). Exhibit 12. Hannah responded on the same day by attaching a document that outlines questions/topics to discuss with [the witness]. Further, Hannah offered no objection in response to Perezs comments related to costs on time expended. Rather, Hannah stated, I look forward to receiving the reimbursement information from you. Id. Although the witnesss name is redacted in the July 6, 2012 email, a review of suppressed documents on the secured website shows that the witness was Mario Sanchez, Shapiros former bodyguard. A July 9, 2012 email from Perez to Hannah (that Hannah then forwarded to Barnhart) outlined information pertinent to the enforcement staffs Investigation that Sanchez had provided to Perez during a pre-deposition meeting earlier that day. The July 6, 2012 and July 9, 2012 emails show that Hannah: (1) was Perezs point of contact with the enforcement staff after Najjar was dismissed; (2) was aware that Perez expected to be paid for the time she expended deposing witnesses on behalf of the enforcement staff; and (3) worked closely with Perez in an attempt to depose additional witnesses and to control the questioning of those witnesses. Incredibly, none of this is captured or acknowledged by the Cadwalader Report, casting yet further doubt on the reports impartiality, completeness, and validity. Hannahs intimate involvement in working with Perez and knowledge of Perezs expectations of payment for billable work are further highlighted in an August 15, 2012, email from Hannah to Perez where Hannah stated, I believe this request falls within the parameters of the agreement the NCAA made with you to pay you for your work related to representing Nevin in matters overlapping the enforcement staffs investigation of Miami (emphasis added). Exhibit 13. Note that prior to the email, on August 2, 2012, Perez had provided Hannah with invoices for over $57,000 in billable time. Cadwalader Report, p. 24. Per the Cadwalader Report, Hannahs supervisors, Hosty and Lach, were made aware on multiple occasions in October 2011 that the NCAAs legal department had instructed the 34
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enforcement staff that it could not use a sources criminal attorney to conduct depositions on behalf of the Association and had clearly explained that such an arrangement would constitute an inappropriate circumvention of the NCAAs investigative limits. Cadwalader Report, p. 17-18. As emphasized throughout the Cadwalader Report, the enforcement staff retained Perez despite this advice and perpetuated a relationship with Perez that spanned nearly a year due to Najjars assurance to Hosty and Lach that the enforcement staff was not paying Perez for her billable time, but only for actual costs related to conducting the depositions and that this arrangement had been approved by the legal staff. Thus, enforcement staff managers were fully aware that any arrangement with Perez for reimbursement of her time was expressly prohibited and were deliberately misrepresenting the facts in order to continue with the scheme. When Hannah took over for Najjar in May 2012 as the supervising investigator, one would assume that her superiors, Hosty and Lach, would have briefed Hannah on the parameters of the Perez arrangement as they claimed to have understood it at the time. One would also assume that, had Hosty and Lach not had the managerial competence to inform Hannah of the parameters of the arrangement, that Hannah, in her position as a supervisor, would have ensured that she understood the parameters of the Perez arrangement before taking over as the enforcement staffs main point of contact with Perez and working closely with her throughout the summer of 2012. In light of this information, the Cadwalader Reports attempt at absolving Hannah of any culpability in the enforcement staffs relationship with Perez is an indefensible conclusion. The Cadwalader Report stated, [Hannah] was aware of the arrangement with Perez, but did not realize that the NCAA was paying for Ms. Perezs services until she started receiving invoices and emails seeking payment from Ms. Perez. Cadwalader Report, p. 46. This conclusion is wholly inconsistent with the aforementioned emails. As early as July 6, 2012, Hannah had been informed that Perez intended to be paid for her billable time connected to work she was performing on behalf of the enforcement staff. Despite this, Hannah failed to correct Perezs understanding (as evidenced by the August 2, 2012, invoices) and even expressly told Perez that the enforcement staff intended to pay [her] for [her] work in connection with the depositions. Furthermore, Hannah continued to direct, work with and utilize Perez as a medium to attempt to obtain information from uncooperative witnesses. This suggests that, contrary to the Cadwalader 35
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Reports assertion, Hannah understanding of the arrangement was that the enforcement staff did intend to pay Perez for her services. Cadwaladers statements regarding Hannah also infer that Hannah was concerned upon learning that Perez intended to be paid. Given her documented actions and communication with Perez, that was simply not the case. The fact of the matter is that Hannah either actively misled Perez about the enforcement staffs intention to pay her for billable time in order to continue to utilize her to obtain information from uncooperative witnesses, misled members of the Cadwalader firm in stating that she was unaware that the enforcement staff was planning to pay Perez for her services until the summer of 2012, or sustained an in-depth relationship with an outside attorney without ever bothering to familiarize herself with the details of the arrangement. Whether the product of untruthfulness or incompetence, Hannahs actions while supervising the Investigation were clearly inappropriate and her continued presence as the supervising investigator is highly objectionable to the University. The NCAA proceeded with issuing the Notice based upon the conclusions of the Cadwalader Report that the investigative record was properly cleansed and that enforcement staff who continue to oversee the processing of the Universitys case were not guilty of bad faith and/or incompetent action in connection with the Perez agreement so as to avoid any further injustice to the University. As discussed earlier, the investigative record was not properly cleansed. The aforementioned emails, which were excluded from the Cadwalader Report, prove that Hannah was guilty of bad faith or incompetent behavior in her dealings with Perez. However, Hannah was allowed to make crucial decisions related to the issuing of the Notice and still remains as the cases primary supervisor. The hasty and deficient investigation of the enforcement staffs actions throughout the Investigation as memorialized by the Cadwalader Reports inaccurate conclusions prove that requiring the University to respond to the Notice would constitute an additional and substantial injustice. Clearly, the actions of the enforcement staff in connection with the Perez arrangement (and in many other investigative realms) needs to be explored in much greater detail and sound conclusions need to be drawn before the University can have any confidence that the charges being brought against it are based on legitimate evidence that was permissibly obtained by ethical and competent investigators. 36
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9) The Notice Contains Allegations that were Not Substantiated by any Credible Party and The Enforcement Staff Recognizes Self-Corroboration as an Appropriate Evidentiary Standard NCAA Bylaw 32.8.8.3 outlines the evidentiary standard on which the COI must base its findings in an infractions case, stating, The Committee on Infractions shall base its findings on information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs. While the evidentiary basis that the enforcement staff must meet in presenting an allegation to the COI is not articulated in the NCAA Bylaws, one must assume that the enforcement staff cannot present information to the COI unless a reasonably prudent person could rely on that information in making a finding of fact. In issuing the Notice, the enforcement staff willfully ignored this reasonably prudent person standard. By the enforcement staffs own admission, it included many allegations in the Notice based solely upon Shapiros testimony that were not substantiated by any legitimate documentary or testimonial evidence collected over the course of the two-plus-year Investigation. The enforcement staff also included several allegations that were only Like Shapiro, substantiated by convicted felon Mimi Menoscal, Shapiros ex-girlfriend.

Menoscal is a convicted felon whose crimes establish her propensity for manipulative and dishonest behavior. Not only was Menoscal Shapiros romantic and business partner during the period of time in which he defrauded investors out of nearly a billion dollars, but separate and apart from her connection with Shapiro, in September 2010, Menoscal plead guilty to stealing at least $380,000 by running a sham wholesale shipping company that kept up-front payments without ever shipping any products. See Exhibit 14. As if relying on a Ponzi schemer were not problematic enough, the enforcement staff also refuses to see the inherent problem associated with relying on the testimony of yet another person who has been convicted of a crime as a direct result of her lies. The fact that Shapiro masterminded a Ponzi scheme for nearly a decade that defrauded sophisticated business investors out of almost a billion dollars proves not only his propensity for lying, but also his unfortunate talent for manipulation, deception and concealment. Given this knowledge, the enforcement staffs insistence on exclusively relying on Shapiros (and 37
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Menoscals) testimony as reliable is even more indefensible especially considering Shapiros demonstrated vindictive nature and clear motive to lie about the nature and extent of rules violations. As the Cadwalader Report noted, Shapiro was looking for revenge against the U. Miami players and coaches who he believed had turned their backs on him when he got in trouble with the federal authorities. Cadwalader Report, p. 36. Beyond Shapiros spiteful motives in tarnishing the names of former student-athletes, coaches, and administrators associated with the University, he also had a publicized financial motive in sensationalizing and fabricating his allegations of NCAA rules violations at the University. When he levied the allegations, Shapiro was planning on writing a book, The Real U: 2001 to 2010. Inside the Eye of the Hurricane, outlining his allegations of NCAA rules violations against the University. Shapiro had planned to use profits from the book to pay back investors that he had defrauded. See Exhibit 15.27 In order to secure a publisher and generate public intrigue in his book, Shapiro had a vested interest in exaggerating and/or fabricating his dealings with the most high-profile former Miami student-athletes. Furthermore, interviews with former student-athletes, coaches, and administrators all portray a consistent picture of Shapiro as a man who was delusional and mentally unstable. Interviewed parties provided similar accounts of Shapiro as a man who continually used threats and coercive behavior in order to impose his will on others and to attempt to carry out the big shot lifestyle that he so desperately wanted to portray. Moreover, the investigative record contains numerous accounts of Shapiro frantically threatening individuals and extorting them for money once his Ponzi scheme collapsed and he was arrested on charges of securities fraud and money laundering. An unbiased and rational evaluation of the record would dictate that the enforcement staff should have, at the very least, treated Shapiros testimony with great skepticism. Instead, the enforcement staff chose to label Shapiro as a credible witness in order to support what it wanted to believe the most scandalous allegations involving the most high-profile former student-athletes rather than what credible evidence actually supported. Allegations 1-(a), 1-(b),
Note that Shapiro benefited financially from presenting his allegations to the NCAA as well. As acknowledged in the Cadwalader Report, the enforcements staff expended approximately $8,200 in payments to fund communications with Mr. Shapiro, which included nearly $4,500 in payments to Shapiros prison commissary account. See Cadwalader Report, p. 21.
27

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1-(e), 1-(f), 1-(g), 1-(h), 1-(i), 1-(j), 1-(k), 1-(l), 1-(m), 1-(n), 1-(o), 1-(p), 1-(r), 2-(a), 2-(b), 2(c), 2-(d) and 5-(a) were included in the Notice without any corroboration from involved parties other than Shapiro.28 Many of these allegations were based solely on Shapiros exaggerated, fabricated, and delusional assertions.29 The enforcement staff has contended that if Shapiro described a given allegation on more than one occasion, they considered the consistency of his statements to be self-corroboration and included the allegation in the Notice without it being substantiated by any other evidence. This theory of self-corroboration is not supported by any established legal principle and is nothing more than the enforcement staffs belief that if someone lies twice it somehow becomes the truth. The adoption of such a standard by the enforcement staff constitutes a clear abuse of discretion. While all of these allegations were included in the Notice with no corroboration from credible witnesses, many were expressly denied by involved former student-athletes who cooperated in the Investigation.30 With those allegations, the enforcement staff chose to discredit the testimony of former student-athletes (with no histories of pervasive untruthful conduct that could impeach them as witnesses) and to accept the word of a convicted felon.31 This indefensible logic underscores the enforcement staffs fixation on charging the most outrageous allegations involving the most high-profile former student-athletes notwithstanding the absence of any competent corroborating evidence, and worse, in the face of exculpatory evidence. Finally, the University finds the enforcement staffs repeated expressions of confidence in the reliability of Shapiros testimony to be directly at odds with the extensive amount of time, energy, and resources it expended in impermissibly deposing key witnesses whom the enforcement staff believed could potentially substantiate Shapiros allegations. When presented with the plan for Perez to depose key witnesses in the Investigation on behalf of the enforcement
Of the 48 student athletes named in allegation 1(b), there is only corroborating evidence with regard to 4 student athletes. 29 The enforcement staff claims that it has pictures to corroborate some of these allegations, but the pictures serve as nothing more than additional testimonial evidence from Shapiro, as the enforcement staff has acknowledged that none of the pictures contain dates. 30 The enforcement staff also attempted to coerce former student-athletes by sending them correspondence in November 2012 indicating that if they failed to cooperate, Shapiros jailhouse tales about them would be established as true. Such intimidation is yet but another example of the enforcement staffs desperate and unprofessional attempt to promote the most salacious of Shapiros allegations instead of dedicating their efforts to uncovering the truth. 31 The enforcement staff has acknowledged that it discredited the testimony of former student-athletes in light of Shapiros assertions. If necessary, additional examples will be presented at the COI hearing.
28

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staff, Hosty, stated that the plan could be a creative solution for bigger break -throughs on evidence. Cadwalader Report, p. 15. When informed by the NCAAs legal department that he could not proceed with the Perez Plan, Najjar informed the legal department that their advice creates a significant impediment to our investigation. Cadwalader Report, p. 18. If the enforcement staff had possessed a good faith belief that Shapiro was a credible witness, it is hard to imagine that it would have crossed the bounds of ethical and professional conduct, thus casting a black cloud over the legitimacy of its investigative conduct in the case, by manipulating federal bankruptcy proceedings in order to deceitfully obtain testimony from key witnesses (in direct defiance of legal advice). The expressed need for break-throughs in evidence and the concern that not being able to compel depositions of key witnesses would significantly impede the Investigation proves that the enforcement staff believed that Shapiro was not a credible witness. The enforcement staffs insistence on labeling Shapiro as a credible witness, notwithstanding the mountain of evidence to the contrary, is also evidence that its manipulation of federal bankruptcy court proceedings in order compel testimony from uncooperative witnesses, and the information that flowed from those depositions, tainted the entire investigative record and shaped the enforcement staffs mindset in its evaluation of all the facts in the case. Clearly, information that the enforcement staff impermissibly received, that it purported to expunge and redact from the record, influenced the enforcement staffs belief that certain events occurred despite legitimate evidence to the contrary and infected its ability to rationally evaluate the facts in levying the charges contained in the Notice.32 10) The Enforcement Staffs Charge of Lack of Institutional Control The enforcement staffs charge of a lack of institutional control, and the evidence it relied upon in levying that charge, further exemplifies its unyielding and close-minded commitment to justifying Shapiros exaggerated and fabricated allegations despite the objective evidence
One example of this, among many, is the enforcement staffs insistence on arguing that Morton received $10,000 from Nevin Shapiro in November 2007. There is no credible evidence in the record to support this belief (as evidenced by the enforcement staff having to amend the Notice to include the assertion after having initially decided to not levy that charge). However, Sanchezs recollection (that was expunged from the record) that he assisted Morton in repaying $10,000 to Shapiro has led the enforcement staff to stubbornly pursue this charge in the face of clearly deficient evidence.
32

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convincingly proving that the University took great measure to exert proper control over its athletics programs. The unanimous testimony of interviewed administrators, coaches and former student-athletes indicates that the University had a proactive compliance department that thoroughly educated its student-athletes, coaches, athletics staff members, and boosters on NCAA rules and closely monitored and controlled the interactions of its student-athletes with boosters to ensure rules compliance. The University provided the enforcement staff with

volumes of brochures, power point presentations, and other rules education materials as additional evidence of its educational and monitoring efforts. Only one interviewed individual, a non-University employee who provided part-time services to the football program, claimed to have ever raised the issue of Shapiro possibly violating NCAA rules with University administrators (all other parties reported that they never had any knowledge of Shapiro possibly violating NCAA rules). This individual claimed to have reported to a senior Athletic Department employee, and the late Paul Dee, the Athletics Director at the time,that Shapiro possibly had ties to a sports promotion company and that Shapiro was socializing with student-athletes. However, no member of the Athletic Department, including the former head football coach, recalls such a conversation; and, as explained above, due to its investigative failures, the enforcement staff failed to interview Dee.33 Moreover, this individual claimed to have provided this information to the University in 2002, which is over a year and a half prior to Shapiros investment in Axcess Sports. Despite the Notices incendiary language, the enforcement staff collected no other evidence that the athletics administrators were put on notice of potential NCAA violations and then failed to provide proper oversight of Shapiro and his interactions with student-athletes as alleged. The unrebutted evidence demonstrates that the University took great lengths to ensure that those affiliated with its athletics programs were educated on NCAA rules and adhered to those rules. Unable to detach its desire to believe the most scandalous and gossip-friendly allegations by proving negligence and even corruption on the part of the University, the enforcement staff attempted to paint high-ranking University advancement officers as having knowledge of, and

This individual reported that he had discussions with Head Football Coach Randy Shannon where he relayed concerns regarding Shapiro. Shannon had no recollection of any such conversations.
33

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turning a blind eye to, Shapiros involvement with Axcess Sports. Despite the tenuous evidence to support that charge (it is debatable, at best, that the advancement officers were ever aware of Shapiros connection to Axcess Sports), the allegation is particularly troubling because the involved advancement officers were not employees of the athletics department. Rather, they were employees of the Universitys central advancement office and had no athletics related responsibilities. As such, they were not knowledgeable of, nor trained in, issues related to collegiate athletics. Charging the University with a lack of institutional control because two administrators who had no day-to-day athletics responsibilities or expertise in the area allegedly had knowledge of Shapiros involvement in a sports company is unreasonable, illogical and a bit ironic, given the Cadwalader Report and the NCAA Presidents position regarding accountability for the actions of subordinates. The Cadwalader Report exonerated Jim Isch, the NCAAs chief operating officer, of any culpability in the enforcement staffs engagement of Perez to manipulate federal bankruptcy proceedings despite his knowledge of, and approval for, the enforcement staffs arrangement with Perez. The Cadwalader Report stated, [i]n this matter, [Isch] did have a role in approving the Perez proposal, but he did not have responsibility for vetting its appropriateness because his responsibilities were limited to fiscal issues, not legal/prudential concerns. Under the same logic, the Universitys advancement officers named in the Notice had responsibilities limited to fundraising and thus cannot be held responsible for athletics concerns. Similarly, the NCAA Presidents recent public statements demonstrate the fallacy of charging the University with loss of institutional control. Specifically, on March 25, 2013, the NCAA President appeared on ESPN Radio and was asked why, given NCAA legislation that holds head coaches accountable for the actions of assistant coaches, he was not held accountable for the impermissible and unethical investigative tactics employed by the enforcement staff during the Investigation. The President responded by stating:

You got to think about this for a minute, [holding me accountable] is exactly like saying if an assistant coach did something wrong, the president of the University

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ought to be fired. . . If something happens on the shop floor of a University you dont fire the president of the University if somebody does something wrong.

At several points throughout the interview, the NCAA President made it clear that institutional executives should not be held accountable for the wrongdoing of those on the shop floor. Such reasoning supports the Universitys position that it is unconscionable to attempt to hold the Universitys institutional advancement staff accountable through a charge of lack of institutional control for the rogue actions of an individual (Shapiro) who was associated with the University on its shop floor. Attempting to condemn University officials based upon logic that is in direct opposition to the line of thinking that was employed to exonerate NCAA officials in the aftermath of the enforcement staffs impermissible actions serves as a perfect example of the enforcement staffs close-minded fixation with accepting the sensationalized nature of Shapiros allegations as truth, its unyielding attempts to crucify the University for the actions of a rogue booster who was a master in the art concealing corrupt and criminal behavior (as evidenced by his ability to perpetuate his Ponzi scheme for a decade), and its tendency to discredit any evidence or mode of rational thinking that did not serve its goal of getting high profile member institutions, coaches, and student-athletes. IV. CONCLUSION The University has already acknowledged that violations have occurred and has assumed responsibility for those violations by taking significant and unprecedented actions in its selfimposed sanctions. Many of the remaining allegations in the Notice are not corroborated by any legitimate evidence and are supported only by the unsubstantiated word a convicted felon - who orchestrated a billion-dollar Ponzi scheme and has an articulated vendetta against the University, its administrators, its former coaches, and its former student-athletes and an investigative record irrevocably marred by the deceitful and incompetent investigative tactics of the enforcement staff on which no trier of fact can rely in drawing sound conclusions in the case. Specifically, the record evidence is irreparably contaminated due to the enforcement staffs actions which include:

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Rewarding a convicted felon by vouching for his credibility before his federal sentencing judge, even though, at that point in time, no investigation had been undertaken to substantiate his outrageous claims.

An immediate and unjust rush to judgment on the part of the NCAA as within days of the public disclosure of the investigation in 2011, a senior NCAA executive spoke out on the University of Miami and the death penalty. Such comments were reprinted or replayed approximately 500 times in the weeks following their release.

Throughout

the

approximate

2-year

investigation,

the

enforcement

staffs

impermissible conduct, constant turnover, inexperienced investigators and overall mismanagement caused multiple unconscionable delays in a process which could have been concluded in much less time.

As already acknowledged by the NCAA, the intentional use of impermissible investigative tactics by members of the enforcement staff, with the approval of NCAA executives, including the compensation of an outside attorney to solicit information from witnesses, incredibly violated clear and defined policies and is further evidence of an allout approach to prove the most salacious allegations rather than discover what actually transpired at the University.

The NCAA-sanctioned Cadwalader Report released in February is not only incomplete, but also incorrect in parts and the NCAA enforcement staff relied on the Reports faulty conclusions in drafting the Notice of Allegations.

The NCAA enforcement staff created the concept of self-corroboration as an appropriate evidentiary standard, as many of the allegations leveled against the University are based on the testimony of one man (a convicted felon) and were never supported by any other witness or documentation. 44
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Perhaps most distressing and unconscionable, on multiple occasions, members of the enforcement staff intentionally misled the University by withholding key information, failing to inform the University of scheduled interviews and, most egregiously, lying to the University and its outside counsel.

Given such actions, and the already unconscionable length of the Investigation, prolonging the conclusion of this case would further irreparably harm the University. As such, for all the foregoing reasons set forth in this memorandum, the University respectfully requests that the COI employ the broad discretion and authority it has under NCAA Bylaw 19.1.3 as demonstrated in the earlier Pittsburgh case mentioned above, and immediately conclude this case as it relates to the University.

_________________________________________________________________

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