Thoughts on Miami Booster Scandal from a UM Law Alum

Joe Cafaro is a clerk at The Burton Firm in Fort Lauderdale, FL and a 2011 graduate of the University of Miami School of Law. The Legal Blitz writer and Villanova 3L Sal Filippello caught up with Cafaro to get his take on the alleged violations that threaten the very existence of Miami Football. We’ve included their correspondence below.

Filippello:
Hey Joe, as a UMiami Law grad, I was wondering what your take was on the current state of the program based on the allegations of major NCAA violations?

Cafaro:
My first thought about this scandal is the idea of willful violations versus negligence or even gross negligence. Simply put, negligence is accidental wrongdoing that could have been avoided. So if you leave a banana peel on your floor and someone slips on it, you were negligent in leaving the banana peel there even though you didn’t mean to hurt that person, and that’s where liability comes from.

The one thing that’s conspicuously absent from the Yahoo! Sports article is an allegation of willfulness from any of the real top UM people in the scandal. I think this could end up being an enormously important point in UM’s favor when it comes time to hand down violations. The allegations so far are basically that a UM booster gave players all kinds of benefits – from money and clothes to unlimited use of his yacht. Various assistant coaches are alleged to have cooperated with the booster, but nobody is saying that the head coach (at least in football) or athletic director knew.

Now you can certainly say that the head coach, Randy Shannon, should have known. But should have known and knew are vastly different when it comes time to hand out punishments. I think this makes sense. You don’t punish a kid nearly as severely when they make an innocent mistake as you do the second time, after you’ve told them it’s wrong.

Now is it possible that the higher-ups knew what was going on? Sure. But these allegations date back to 2002, so is it entirely ridiculous to think that any wrongdoing was kept secret from a notoriously hard-ass head coach? I don’t think so.

The first thing I’m going to keep an eye out for is whether they can connect any of the people truly in charge – UM President Donna Shalala, AD’s Paul Dee and Kirby Hocutt, Football Coaches Larry Coker and Randy Shannon, and Basketball Coach Frank Haith – with actual knowledge of anything that was going on.

Filippello:
I agree with most of what you said, but I disagree a little in regards of liability for the wrongdoing.  While negligent infractions are not nearly as bad as willful or intentional ones, it is still an infraction.

I suggest that the AD, and more importantly the Head Coach had a duty to know exactly what was going on with his players. This breach of duty is exactly where liability lies here for the AD and the program generally.  I do agree with you that absent actual knowledge, the punishment handed down by the NCAA should be much less severe.

That being said, the NCAA has a real problem on its hands.  There is really nothing that can be done to stop the boosters or other fans from giving these kids cash and goods.  However, one way to stop this under the table payment would be to issue severe punishments to the actual student-athletes.  I think that the NFL involvement in this regard will prove crucial (See Terrelle Pryor suspension).

Current Miami Head Coach Al Golden (Courtesy Zimbio.com)

Cafaro:
You make some really good points. Let’s start with the second, because I think I want to elaborate a little bit more on the first. It’s my understanding that while the official NCAA investigation has been going on for 5 months, Mr. Shapiro was under FBI suspicion or arrest long before that. I don’t think this was a secret, though at that point it wasn’t necessarily a scandal.

Beyond that, I’m not sure what Golden Al would claim as damages. Since he landed at The U he’s done nothing but recruit like hell and prove to be one of the classier coaches around. Yes, I’m a homer but there’s no denying that at least off the field, the guy’s pretty much batting a thousand. There’s every chance that he might be a better candidate now than he was at Temple. Obviously, there’s a duty to mitigate, so he couldn’t just up and quit, and if he got a new job that would likely offset any amounts owed by UM.

Plus, I’m not even sure that this is a material omission. Job circumstances change. The position of head football coach is by definition a very dynamic, ever-changing one, and every coach knows that they could be inheriting whatever the last guy left behind. But imagine if he stays and wins? Dude’s a legend.

Nevin Shapiro outside the tunnel at a UM football game (Courtesy NY Daily News)

On to your first point, here’s the thing that bugs me most – where was the cover-up? I’ve discussed this with a few people and I can’t quite come to a satisfactory answer. He was an official “booster.” We’ve seen pictures of Donna Shalala holding up one of Nevin Shapiro’s giant checks*. He ran the team out of the tunnel. He was on the sidelines at games. Now tell me: if you were knowingly taking bad money from a shady booster, would you make the relationship that public?

*You know you’ve made it when you get a book of giant checks. That episode of The Office tells me that they cost like $250 each, so imagine what the overdraw fees must be.

One of my favorite phrases in the English language is “the exception that proves the rule.” It’s often misused, but it basically means that when there’s an exception, that means that in all other circumstances the rule holds true. So if I say you can stay out past 10pm only on weekends, you can extrapolate that and assume that you can’t do so during the week. I feel like similar logic can be applied here – when really smart, competent, respected individuals are so blatant about their relationship with Nevin Shapiro, at what point does it simply make more sense that they somehow didn’t know?

So that’s my second big question. Where was the cover-up? Why were these people so out in the open with what they were doing? Is it plausible that a guilty party in Athletics or Compliance wrongly cleared Nevin Shapiro as someone who could contribute?

I’m 25 years old and I’ve seen a lot of smart people do stupid things, but I can’t recall an example that would be quite so blatant and without any attempts to hide wrongdoing as this one.

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2 Responses to Thoughts on Miami Booster Scandal from a UM Law Alum

  1. MrMynor says:

    One might point out that on an agency theory knowledge could be imputed to both the head coach and athletic director if their subordinates had actual knowledge. From a policy standpoint, to cut the U slack because there is no evidence of first hand knowledge of the improper benefits by the head coach would simply encourage willful blindness by head coaches to the goings on within a given program in the future.

    • MrMynor,

      As you can tell by my contribution on this piece, I certainly agree with you. Willful blindness is criminally punishable. I don’t see why the NCAA should not punish it as well. However, I do not think enforcing the “death penalty” for negligent or willfully blind conduct is proper. It also sets a very bad precedent. Miami brings a lot to the NCAA, and to take their football program away from them for willful/intentional actions by secondary or subordinate employees does not seem right to me.

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