Miami Versus The NCAA: A Breakdown Of Miami's Motion To Dismiss

Not sure what's in the cup, but my bed would be on some sort of kool-aid - Tyler Kaufman-US PRESSWIRE

Last week Miami filed a motion with the NCAA to take the unprecedented step of a full on dismissal of their case. This type of thing has never happened before, but then again, there has never been an investigation quite like this one.

The wheels of the NCAA continue to spin in the mud, and all the while, Miami, Shalala, and their team of lawyers are standing nearby, handing them statement after statement.

In case you missed the most recent of these, ESPN's Outside The Lines was able to obtain a copy of Miami's email to the NCAA in which they formally request that the case be dropped. In this email, the law firm retained by Miami goes in depth as to what their reasons are for the case to be dropped. We have seen most of these before, in Shalala's statement made shortly after the NOA was received by the school.

UPDATE: Props to Twitter user @motm25, who alerted me to the fact that the entire 45 page motion to dismiss has been released. Miami went HARD.

Now, obviously there is no guarantee that the NCAA will even take this request seriously, since there is zero precedent for them dismissing a case altogether. However, Miami is in a very good position to argue that if there was to be a precedent set, this case would be a fantastic starting point. Throughout this whole process, there has been turnover, impropriety, lies, cover ups, and a general confusion at the NCAA between folks who apparently wanted to save Miami and folks who were under the impression that Miami was to be buried. Lets take a look at some of the highlights of Miami's email.

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.

As you can see with the first two bullet points, they reiterate their displeasure with how the NCAA both viewed and handled Shapiro from the get go. Even before their official investigation started, they were doing what they could to paint Shapiro, who if you remember stole billions from innocent people, in a positive light so that he may not face such a harsh sentence. These actions were taken so that, in return, he would help the NCAA as much as possible.

On top of that, before starting any actual investigative work, the NCAA took the Yahoo report at face value, and immediately made comments in the media that now seem silly. The phrase "death penalty" was thrown around seemingly before anyone at the NCAA had even read through the entire Yahoo story, which is just ridiculous considering the fact they are now struggling to corroborate much of the report.

Throughout the approximate 2'/2-year investigation, the enforcement staff's 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 all-out approach to prove the most salacious allegations rather than discover what actually transpired at the University.

With these next couple of portions, you can see the lawyers attacking the ineptitude the NCAA has shown throughout their investigation. We all are painfully aware of just how terrible the NCAA has been at following their own rules, but then to go above and beyond and cover up a delicious portion of stuff that was not included in their original internal report has made them look even more ridiculous than anyone could have imagined.

Things were certainly not helped by the recent release of a group of emails sent from former NCAA investigator Ameen Najjar to Nevin Shapiro. In these emails, he chastises the NCAA for not taking the Miami investigation seriously, and mentions that a few higher ups wanted to try and keep Miami from receiving harsh penalties, so they did not do their due diligence with their work. He even goes so far as to say that the sanctions the NCAA handed down in the Penn State case were a travesty, and that they should have had no part of that situation.

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 Report's 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.

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.

With the final points, Miami mentions how the NCAA lied to the school and its outside counsel, even as the school was going above and beyond to cooperate with the investigation. They also reiterate the absolute ridiculous practice of self-corroboration, which the NCAA seems to have invented specifically for this investigation, which basically means that anything Shapiro stated more than once was taken as gospel. Ignoring the fact that much of what he alleged has not been corroborated by any outside sources (or, in the case of Sean Allen, any sources that the NCAA can now utilize), they still moved ahead with information that Shapiro provided to them.

They also highlight how the internat investigation report that the NCAA released in February has now been shown to be woefully understated and incomplete. More information about the bunglings of the NCAA has come out since that report than was actually included in it. The only plausible explanations for this are either than Emmert is so deeply naive that he was totally unaware of everything that was going on, or he is desperately attempting to cover up as much as he can regarding how convoluted this process has been in an attempt to save his own ass.

Further, the University hereby reiterates the objection, initially made in my letter to Chairman Banowsky of March 19, 2013, to a single member of the Committee on Infractions being granted exclusive authority to rule on all motions submitted by the University of Miami (and by other involved parties). Please understand that this would be the University's position regardless of the committee member so designated and should not be interpreted as a challenge to the objectivity you bring to the matter. As I previously wrote, the University strongly believes that given the extraordinary circumstances of this investigation, participation of the full committee in the review of the numerous procedural issues raised is mandatory and that the University deserves nothing less.

The University continues to reserve all rights against the NCAA for the wrongs that have been committed against it. Neither the University's continued cooperation in this enforcement action nor the submission of the attached Motion shall constitute a relinquishment or waiver of any legal rights, all of which are hereby expressly reserved.

To finish up their statement, Miami made sure to reiterate their objection that a single member of he Committee On Infactions was to handle this motion, which is something the NCAA decided would happen. Basically, this is saying that the NCAA wants a single person to review this motion and make the decision on dismissal, rather than involving the entire committee so that a broader decision can be reached. It appears the school is afraid that the NCAA will cherry pick the person responsible, which will basically ensure the case moves forward. With how they have handled things so far, this is not at all a stretch. They include a statement saying that this is not the case, but you have to believe that, regardless of the legal wording, the intent behind this objection is based at least in part on this premise.

Finally, Miami makes sure that the NCAA is aware that with this motion to dismiss, they are in no way revoking or giving up their legal rights. They are more or less saying "Hey guys, listen. If this doesn't get dismissed, or even if it does, we are reserving the right to sue your asses for whatever we can, simply because you've been dicks about this." Shalala clearly is in no mood to play nice any longer, and that's a very good thing for Miami going forward.

It's still unclear what will happen with this motion, or even with the case as a whole. One thing is for certain, though, Miami is not going down without a fight. They cooperated too much for too long just to have the NCAA kick dirt into their faces, and they aren't taking kindly to that.

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