Why Michigan Has Nothing to Fear From an Independent Investigation

Submitted by DCBlue03 on August 31st, 2009 at 10:17 PM
There's been some consternation about Bill Martin's refusal to rule out the possibility of hiring a private law firm to investigate Rosenberg's allegations, especially given the Free Press's allusion to the role the law firm investigation played in the Ed Martin saga.  I don't have any direct experience with NCAA investigations and enforcement, but I have spent hundreds of hours working on internal investigations for a large corporate law firm, so I can speak from direct experience as to how law firms handle internal investigations more generally.

Michigan is in a more favorable situation than a corporation that has been publicly accused of say, securities fraud.  Public allegations would trigger an immediate SEC investigation, and then you're playing defense in trying to manage the enforcement body's investigation, which makes it tough to build an affirmative case that the client didn't do anything wrong.  Unlike the federal government, though, the NCAA is generally willing to let a university conduct an internal review before it takes a look at the situation, so Michigan is more in the position of a company that's had internal allegations of misconduct brought to its attention.

In that situation, the point of the investigation isn't to get to the "truth" in some objective sense, but rather to answer a simple question - knowing what we know, can we go to the enforcement body in question, lay out our facts, and convince them that there's no point in investigating any further?  The client is hiring you to put together a case that answers the question in the affirmative.  You're going to try to discover the negatives as well as the positives and not whitewash things if you conclude that something illegal took place, but you're also going to present the facts you do discover in the best possible light for your client.

Getting specific, Rosenberg's story indicated that Michigan has signed statements from every player stating that all time spent on football beyond 20 hours was voluntary.  This is infinitely stronger evidence than you usually have in a situation like this.  If the question is whether X occurred and harmed a group of people, and there are contemporaneous statements from the supposed victims that X did not occur, we'd end the investigation right there.  Is there more to the story?  Probably.  But there's more than enough to convince the enforcement body that it's not worth pursuing the issue any further.  The SEC or NCAA or whoever have limited enforcement resources, and they're not going to waste them investigating situations where they'd have no hope of winning any subsequent legal proceedings.  And overcoming Michigan's paper trail in this situation would be virtually impossible.

So if a company in Michigan's position came to us we'd laugh, tell them they have nothing to worry about, take a look at the paper trail, and then either end things there or write a brief disclosure to the enforcement body saying that X was alleged, we examined documents that conclusively disproved X, and that's it.  And that would be the end of it.


Blue boy johnson

August 31st, 2009 at 10:31 PM ^

Thank You DC, that is pretty much my take as well, but could not have stated is as well as you. I think RR alluded to this in his presser when he said he did not leave his brain back in West Virginia. Brian also has pointed this out with his "RR would have to be an idiot" reviews.

OSUMC Wolverine

August 31st, 2009 at 10:36 PM ^

They have nothing to fear because plain and simple the NCAA has no way to profit by lying. Freep can reap huge benefits by increased traffic and advertising dollars. The NCAA does not profit from the winningest program in history being unfairly attacked. If the NCAA could profit from such things, Miami of Florida, USC, and the like would have long since been handed the death penalty...but the NCAA is not trying to sell poorly quality newspapers.


August 31st, 2009 at 10:43 PM ^

Solid post.

That's one thing I actually thought of when I first read the freep article, and haven't really heard since: There are signed statements from all these players that they were compliant w/ rules!!

*If* there is an NCAA investigation, M can just bust out the huge paper trail it no doubt has, and the NCAA can just ask the disgruntled players who made the allegations, "If you were concerned about violations, why did you sign these statements and not say anything until way after the fact?" That, combined w/ the fact that so many current (and former) players as well as parents have corroborated RR's side of things..... No way in hell this results in any NCAA violations.


September 1st, 2009 at 12:08 AM ^

Good post. But there is precedent. According to ESPN, SDSU and Ball State has similar violations and basically got two years probation with loss of scholarships.

How is UM's situation different from those two schools? Did those schools not have a paper trail? Does UM just have better compliance officers?

Please advise. Thanks. Go Blue.