Miami preparing motion for dismissal of case

[Problem2]

The University of Miami is preparing to make its next move in its battle with the NCAA, but the NCAA already is throwing up obstacles.

In a highly unusual step, UM plans to submit to the NCAA a motion to dismiss the case against Miami before a March 29 deadline to submit documents, according to a source.

But according to two sources, the NCAA last week sent a letter to UM and the implicated former coaches with a warning: The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June.

Even so, UM likely will let the process play out before considering a lawsuit.

A UM administrator said the school has prepared a compelling argument for why the case should be dismissed before the June 14-16 hearing, though it knows it’s highly unlikely to be dismissed.

Among the arguments UM will make in seeking dismissal:

### The NCAA’s decision to use Nevin Shapiro’s attorney and the bankruptcy court to extract evidence resulted in a “tainted” investigation. Yes, evidence obtained from the bankruptcy court proceedings has been tossed, but UM believes that's not good enough.

### The most serious allegations against the highest-profile people named in UM’s notice of allegations are uncorroborated beyond what Shapiro told the NCAA. That includes largely uncorroborated allegations involving Vince Wilfork, among others, according to a source.

As the Associated Press reported, in the NCAA’s allegations, Wilfork and Antrel Rolle account for $90,000 of the $170,000 that Shapiro is alleged to have spent on UM athletes, coaches and UM recruits. So a lot of the money in the NCAA’s charges is linked to allegations that UM believes are uncorroborated beyond Shapiro’s claims.

### UM was outraged that former NCAA investigator Ameen Najjar, who was fired last May, wrote a letter on Shapiro’s behalf. UM learned of the letter in recent weeks, which was reported by AP and obtained by The Herald. For a copy of the letter, please see our next-to-last post.

One person involved in the process said the letter was written before the NCAA interviewed other people besides Shapiro or informed UM it was being investigated.

“That’s the definition of pre-judgment or prejudice,” said the source. “And it’s a cover up because the NCAA didn’t tell Ken Wainstein to include it in his report.”

So why was that letter not included in the 52-page report by Wainstein, who was hired by the NCAA to investigate the NCAA’s improper handling of the case?

“During the inquiry,” Wainstein e-mailed me, “the team [that was investigating the case in Wainstein’s law firm] learned that Mr. Najjar sent a letter to Nevin Shapiro’s sentencing judge several months before the bankruptcy subpoenas were discussed.

“The NCAA had engaged [our law firm] to focus on the use of Mr. Shapiro's counsel and the circumstances surrounding the role of the NCAA enforcement staff in securing depositions in a bankruptcy proceeding to further its investigation of the University of Miami.

“The report focused on those circumstances and was not intended to exhaustively describe all aspects of Mr. Shapiro’s relationship with the Enforcement Staff.”

That explanation obviously doesn't placate UM and the former coaches.

Former UM assistants Aubrey Hill, Jorge Fernandez and Jake Morton also plan to add the letter as a supplement to their previously-filed motions to dismiss.

The NCAA has given the involved parties a two-week extension -- until March 29 -- to submit documents and opinions about whether information that’s included in the allegations should be eliminated from the evidence.

One infractions committee member then will be appointed to review the written submissions and determine whether a procedural hearing is warranted. But that person does not have the authority to dismiss the case.

If the case against UM isn’t dismissed, UM likely will not consider a lawsuit until it learns, sometime between August and October, what – if any – additional penalties are handed out by the infractions committee. If UM is given any significant penalties, including another bowl ban, it very likely will appeal. A lawsuit likely will be considered if UM loses an appeal.

UM prefers not to go to court. “We have to exhaust the normal remedies first, and we could win” without going to court, a UM administrator said.

http://miamiherald.typepad.com/spor...t-dolphins-marlins-chatter.html#storylink=cpy

Lol at the lawyers email

 

[bomba]

**** Yes.

 

[Hurricanes]

**** yes,and a **** yes again.....ITS ALL ABOUT THE UUUUUUUUUUUUUUUUUUUUUUUUUUUUU

 

[riceman]

They don't have the authority to dismiss the case against UM, but clearly have the authority to break the law and do most anything else they want. Just not that.

 

[Canesfan1899]

This whole thing is a joke and at this point I want us to bury the NCAA and all the hypocrasy it stands for. They know those mother****ers in the $EC have larger recruiting budgets than most NFL teams have to pay FA but they turn a blind eye because it's the NCAA's cash cow.

 

[motorcitycane]

**** the NCAA! and **** the ****in President Mark Emmert! ****'em all. I bury those ****aroaches!

 

[PUNCICANE]

But according to two sources, the NCAA last week sent a letter to UM and the implicated former coaches with a warning: The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June.

these retards dont even know what they can and cant do

 

[NVA CANE]

Unfortunately they won't dismiss it. This will drag out to the Fall, where there will finally be closure. For all their posturing, the NCAA doesn't want another lawsuit. They will hand out some scholly losses, probation and be done with it. I'd rather not have to go the lawsuit route. Lets just get this over with and move on.

 

[PUNCICANE]

Like the coaches involved in the case, Miami will file a “motion” to have the NCAA’s infractions case against the school dismissed. One problem:

But according to two sources, the NCAA last week sent a letter to UM and the implicated former coaches with a warning: The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June.

The Committee on Infractions is correct in that there is no established NCAA process for having a case dismissed by the COI prior to the institution filing a response. There is this though:

32.6.6 – Prehearing Conference.

Within 30 days of an institution’s submission of its written response to the notice of allegations, in a case involving an alleged major violation, the enforcement staff shall consult with institutional representatives and other involved individuals who will attend the hearing in order to clarify the issues to be discussed in the case during the hearing, make suggestions regarding additional investigation or interviews that should be conducted by the institution to supplement its response and identify allegations that the staff intends to withdraw. The enforcement staff shall conduct independent prehearings with the institution and/or any involved individuals, unless mutually agreed by all parties to do otherwise.

If the NCAA is following its rules, this is the first opportunity for the case to go away now that the Notice of Allegations was sent. The enforcement staff, now under new leadership, could decide to simply withdraw all allegations in light of Miami’s response.

That would be the quickest way to end the case, but it might not be the best, even for Miami. Miami has played and continues to play the victim. But maintaining that status is more difficult if it appears that Miami got off on a technicality, despite the self-imposed sanctions.

While it takes longer, the best outcome for Miami is to get its day in court and be vindicated; i.e. go in front of the Committee on Infractions and receive no additional punishment. But given how difficult it is to predict what the COI will do in any given case, Miami has to take every opportunity to avoid rolling those dice.

The other notable part of this and other articles is how effective the PR campaign has been for Miami and the involved coaches. Miami is not “filing a motion”. It is sending a strongly worded letter. And the NCAA pointing out to Miami that it has no such motion has become “throwing up roadblocks”. Overplaying its hand as the victim and the underdog is a danger for Miami, but so far that does not seem to be the case.

http://www.athleticscholarships.net/2013/03/13/miami-asking-for-nonexistent-motion.htm

 

[Golden_Cane]

Funny because I don't remember there being a "process" for what they did to Penn State, but because it was in their interest to make it happen, they found a way. This, conversely would not benefit them (in their minds), so they will go to no extraordinary means to facilitate it.

 

[UMcanesfan420]

I have to disagree a little. The quickest way to end the case is the best. What do we care if everyone else thinks we got off on a technicality? If we get what we want, it doesn't matter.

 

[PUNCICANE]

I have to disagree a little. The quickest way to end the case is the best. What do we care if everyone else thinks we got off on a technicality? If we get what we want, it doesn't matter.

Shalala agrees with you

 

[Golden_Cane]

I have to disagree a little. The quickest way to end the case is the best. What do we care if everyone else thinks we got off on a technicality? If we get what we want, it doesn't matter.

That's a little short sighted and not completely true. Other Universities would most likely make a fuss about it and demand similar action with their cases. They could even threaten a law suit which I think nobody (even us) wants due to threat of discovery (subpoena power). I think we will get additional penalties, but they will not be excessive. Things like extended probation or restrictions to recruiting freedoms comes to mind. We may even lose a few ships, but at the end of the day, I think that the sooner this is over, the better, regardless of the penalties.

I am very interested in seeing what Golden can do on the recruiting trail WITHOUT an albatross around his neck for the first time. I think he is going to be an absolute monster when this is finally put to rest.

 

[Docholliday03]

The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June. This sentence alone says alot. They dont "believe'? You either can or you can't there isn't an option for "I don't know". Basically its them trying to force Miami to not file the motion because once its filed and they have to make a decision and any decision other than dropping the case is going to make them look bad yet again. The NCAA has tried to power trip their way through the whole process and its came back to royally bite them in the ***.

 

[canesdude]

The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June. This sentence alone says alot. They dont "believe'? You either can or you can't there isn't an option for "I don't know". Basically its them trying to force Miami to not file the motion because once its filed and they have to make a decision and any decision other than dropping the case is going to make them look bad yet again. The NCAA has tried to power trip their way through the whole process and its came back to royally bite them in the ***.

The NCAA is always on a power trip, but this time they messed with the wrong president and University.
Thank God they screwed up their investigation, because they wanted to hammer us, just like they did PSU.

 

[UMcanesfan420]

I have to disagree a little. The quickest way to end the case is the best. What do we care if everyone else thinks we got off on a technicality? If we get what we want, it doesn't matter.

That's a little short sighted and not completely true. Other Universities would most likely make a fuss about it and demand similar action with their cases. They could even threaten a law suit which I think nobody (even us) wants due to threat of discovery (subpoena power). I think we will get additional penalties, but they will not be excessive. Things like extended probation or restrictions to recruiting freedoms comes to mind. We may even lose a few ships, but at the end of the day, I think that the sooner this is over, the better, regardless of the penalties.

I am very interested in seeing what Golden can do on the recruiting trail WITHOUT an albatross around his neck for the first time. I think he is going to be an absolute monster when this is finally put to rest.

Sorry, but Donna is demanding no more penalties. So you're saying, if they go ahead and say no more penalties, it's bad for us because other schools will *****? Who, USC? They're the only ones who can complain. Everyone esle got a slap on the wrist. If UNC wants to have their **** re-opened, good luck with that. I bet they don't say ****. That McNair guy from USC is already trying o burn the NCAA in court.


If I was Dr. Gonzo, I would say to Donna, as your attorney I advise you to get the case dismissed, and then file a lawsuit anyways. Burn those ******** before they come back for more.


That's what I'm worried about. Even if we get time served, if we don't finish these ****ers off, we will just be walking on eggshells and they will have us under the microscope waiting for something to try and hammer us again.

 

[umhurricano]

It is a careful line to walk. I think Shalala is trying not to send the message that we should be let off just because the NCAA f'ed up, but rather that what we actually did wrong wasn't nearly as bad as the NCAA and Shapiro portrayed, and time served is more than adequate punishment for the crime.

The carrot is that the NCAA can change directions, admit to minor misteps and agree with her assessment. The stick is if they don't do that either by dismissing the case outright, or a quick ruling by the COI, we sue their asses. Either way, we don't want public perception to be that we did something really bad but caught a break. We want people to think there was nothing to the allegations and we were the victims of a witch hunt.

 

[UMcanesfan420]

I think Donna is just saying that we've self imposed more than we probably should have and it's all based on the word of a convicted felon and liar.


There is this mentality out there that because they're "self imposed" that it's not the same. That's bull****. Then there is the part that nobody but us really understands. The 2 and a half year cloud we've been living under. On top of that, we've had former players being threatened and whatnot.


As for the public perception, there has already been several national writers, many who were firmly against us when the Yahoo story broke, who have called for the case to be dropped. Even Greg Doyle of all people said to drop it. This guy wanted us wiped off the map 2 years ago. If that's not enough for public perception IDK what is.


If you're looking for all the retarded fans of other big schools out there to be on our side then good luck. I'm sure plenty of trogs on twitter will vent when we we get off. Same type of folks who went racist on EJ Manuel when he lost big games. Nobody gives them any creedence.

 

[USNAVYCANE]

I have to disagree a little. The quickest way to end the case is the best. What do we care if everyone else thinks we got off on a technicality? If we get what we want, it doesn't matter.

That's a little short sighted and not completely true. Other Universities would most likely make a fuss about it and demand similar action with their cases. They could even threaten a law suit which I think nobody (even us) wants due to threat of discovery (subpoena power). I think we will get additional penalties, but they will not be excessive. Things like extended probation or restrictions to recruiting freedoms comes to mind. We may even lose a few ships, but at the end of the day, I think that the sooner this is over, the better, regardless of the penalties.

I am very interested in seeing what Golden can do on the recruiting trail WITHOUT an albatross around his neck for the first time. I think he is going to be an absolute monster when this is finally put to rest.

They only care about subpoena power if all this stuff really went on, I think UM knows that only the minor stuff was true and doesn't have anything else to hide

 

[MIA42178]

Like the coaches involved in the case, Miami will file a “motion” to have the NCAA’s infractions case against the school dismissed. One problem:

But according to two sources, the NCAA last week sent a letter to UM and the implicated former coaches with a warning: The infractions committee “does not believe it has the authority under the bylaws to dismiss the case” prior to the case going before the infractions committee in mid-June.

The Committee on Infractions is correct in that there is no established NCAA process for having a case dismissed by the COI prior to the institution filing a response. There is this though:

32.6.6 – Prehearing Conference.

Within 30 days of an institution’s submission of its written response to the notice of allegations, in a case involving an alleged major violation, the enforcement staff shall consult with institutional representatives and other involved individuals who will attend the hearing in order to clarify the issues to be discussed in the case during the hearing, make suggestions regarding additional investigation or interviews that should be conducted by the institution to supplement its response and identify allegations that the staff intends to withdraw. The enforcement staff shall conduct independent prehearings with the institution and/or any involved individuals, unless mutually agreed by all parties to do otherwise.

If the NCAA is following its rules, this is the first opportunity for the case to go away now that the Notice of Allegations was sent. The enforcement staff, now under new leadership, could decide to simply withdraw all allegations in light of Miami’s response.

That would be the quickest way to end the case, but it might not be the best, even for Miami. Miami has played and continues to play the victim. But maintaining that status is more difficult if it appears that Miami got off on a technicality, despite the self-imposed sanctions.

While it takes longer, the best outcome for Miami is to get its day in court and be vindicated; i.e. go in front of the Committee on Infractions and receive no additional punishment. But given how difficult it is to predict what the COI will do in any given case, Miami has to take every opportunity to avoid rolling those dice.

The other notable part of this and other articles is how effective the PR campaign has been for Miami and the involved coaches. Miami is not “filing a motion”. It is sending a strongly worded letter. And the NCAA pointing out to Miami that it has no such motion has become “throwing up roadblocks”. Overplaying its hand as the victim and the underdog is a danger for Miami, but so far that does not seem to be the case.

http://www.athleticscholarships.net/2013/03/13/miami-asking-for-nonexistent-motion.htm

First, the rule clearly says that one of the purposes of the first hearing is to identify allegations the staff intends to withdraw. That means, for those who actually know how to practice law (which clearly doesn't include anyone at the NCAA) that the hearing allows Miami and the coaches to file a written request to have specific or all allegations withdrawn by the NCAA staff. . . . in other words, a motion to dismiss.

Second, didn't the NCAA already grant the coaches a hearing on their motions to dismiss?