Prominent attorney explains investigation process
Michael L. Buckner and his Florida based law firm have represented numerous institutions in NCAA enforcement matters as well as individuals dealing with eligibility issues. He also conducts seminars on compliance for colleges at both the university/college and junior college level. His expertise has allowed him to even write a book on the subject, Athletics Investigation Handbook: A Guide for Institutions Involved Parties During the NCAA Enforcement Process. He's been on ESPN and HBO's Real Sports discussing NCAA issues on compliance and investigations. We contacted him in order to get a better understanding of how the NCAA's investigative process works and what are the key elements to look for in the ongoing investigation of Heisman Trophy winner Johnny Manziel. ESPN first reported earlier this month that Manziel has received payments for his autographs on multiple occasions and that he is under NCAA investigation due to the accusations.
Q: Is there anything unusual about the Johnny Manziel case in comparison to most of the ones out there?
A: It's pretty much the same at this time every year. There's a lot of football players having eligibility issues. Schools reach out to outside firms before the seasons starts. When we have been in that position, we make sure that every player brought to us is eligible.
They (A&M) have a shot to play for a national championship or be in the mix for one. You don't want to mess that up. What I think is going on are very engaged discussions. I'm pretty confident that the Southeastern Conference is also fully engaged so that the right decision can be made.
Q: That's interesting, that the Southeastern Conference would be involved…
A: I have no inside knowledge. I'm speculating but normally they are very involved when their institutions are involved with the NCAA. I know Mike Slive (SEC commissioner) used to do this for a living; in fact, Mike Slive was the pioneer, one of the first people do it full time. He was on the committee of infractions and then moved on to private practice.
Based on my knowledge of how the SEC operates, the conference is going to be apprised of what is going on. A&M will do all of the legwork but the conference will ask if anything is needed. They will do any heavy lifting at the NCAA level. Some conferences don't get involved at all and some talk to schools on an on going basis. The SEC is more engaged and making sure that member institutions are fully protected.
Q: Our readers and A&M fans as a whole are confused about whether or not the NCAA is actually investigating A&M because it doesn't appear as if actual NCAA investigators are involved. How does the NCAA initiate an investigation?
A: The NCAA can send a letter of inquiry or they can make a phone call. Now, they'll usually just make a phone call and contact the office of the president. If outside counsel is involved they will get a call.
Q: We understand that A&M has retained Lightfoot, Franklin, & White, LLP, the same entity that was retained by Auburn, to assist them in their investigation of Manziel. Is that unusual?
A: Oftentimes at the Power Five conference level (SEC, ACC, Big 12, Big 10, Pac 12), the school hires outside counsel who conducts the investigation with the NCAA. We try to cooperate and assist the NCAA.
Q: Who would be investigating everything for A&M? Would it be Lightfoot or outside people that they would hire? Is A&M's compliance office involved?
A: Lightfoot is one my firm's competitors. They have people on staff but they would need to hire additional people. Normally, when you hire outside counsel, they conduct the investigation and use the compliance staff and general counsel's office in collecting documents. The outside counsel is running the investigation.
When I am conducting an investigation, I talk to the general counsel's office on a daily basis. It takes everyone on board. The A&M compliance staff is very good. It wouldn't surprise me if they were involved as well.
Q: From what I've read of previous investigations where there were violations, direct evidence, a paper trail if you will, was necessary for the NCAA to establish that violations had occurred.
A: That's true. If one of the allegations is that Manziel received money in exchange for autographs and the staff interviewed people to corroborate some evidence that money exchanged hands, there needs to be money in bank records. As in a court of law, student athletes have rights. The NCAA has to have direct evidence.
Q: What do you know about the Manziel case based upon what you have read?
A: I know that numerous items were placed on the market. The only direct evidence that we have is that he signed items. It becomes a NCAA violation only if one of two things occurred. One, he received money; second, there's an obscure NCAA bylaw if he later learns that there are items for sale, he's under obligation to prevent the items from being sold. His family attorney has issued cease and desist letters to eBay about those items. ESPN supposedly has a tape of him being paid but in Florida such taping would be illegal so the NCAA could not rely upon the tape to conduct its investigation.
You could have various scenarios of how he got the money. They could have paid him directly. Associates of Manziel could have been paid. They are several ways that the money could have exchanged hands. If money was exchanged how was it exchanged?
Q: There's been talk that the Cam Newton rule (an addition to NCAA Bylaw 16 which reportedly closed a loophole concerning family members receiving benefits rather than the student athlete himself) could be used against Manziel if a family member or one of his friends received money for the autographs.
A: I don't know the answer to that. That hasn't been fully fleshed out yet. The Cam Newton incident was recruiting related. I don't know whether the NCAA has expanded the rule to who could be liable if someone connected to him received the money. Generally speaking, the NCAA will look at immediate family members or significant others. For example, when Reggie Bush parents' received money or O.J Mayo's girlfriend received benefits that was a violation Bylaw 16. I don't know if they would use the same methodology in amateurism aspect.
Q: Here's the big question everyone has right now: if this were your investigation, would you sit him based upon everything that has been reported?
A: I would recommend sitting him if I am confident that my law firm had done a thorough investigation. When I make a recommendation, I give the client all options with a caveat that in even a thorough investigation that a source could come up at any time. My firm handled a case involving a high profile footballer right before the season. The day they were going to leave on a trip, literally to the last minute, I was talking to the NCAA enforcement staff to make sure that everyone agreed with the facts. I was up until two in the morning. It ended up with the young man being eligible but only after every single angle had been investigated. I can't speak for any other firm. I only make a recommendation so that nothing comes back. I can't help it if someone comes out of nowhere but if there is a source that you could have looked at and you didn't it can come back to bite you.
Q: Let's go back to direct evidence for a second. It seems like everything depends on whether or not the investigators and the NCAA are able to find any direct evidence against Manziel.
A: Everything hinges on that. I say that the enforcement staff could also craft a case with circumstantial evidence but you need a lot of it to overcome that burden of proof. A decision by the first game will come through vetting at the institutional level with the general counsel and president of the university and also conversations with the SEC and NCAA enforcement staff.
Q: We've talked about the importance of direct evidence but you have also brought up that Manziel could be found guilty of violations via a lot of circumstantial evidence.
A: You can have direct evidence or an abundance of circumstantial evidence. You can't just have a vendor or broker making accusations.
(On examples of circumstantial evidence) Hypothetically, if a broker says that I gave Manziel $7,500 on January 20, someone that manages Johnny Manziel's bank account says that there was a payment, that's circumstantial evidence. It could be several people saying that I saw Manziel go to the bank on January 21 and it looks like that he made deposit. Or, on January 21, someone saying that I saw a bank receipt for $7,500. That's circumstantial. Direct evidence is a bank statement.
Q: Are the Manziel's under obligation to turn over items such as bank statements which could represent direct evidence?
A: Correct. If he doesn't turn it over, the staff can declare him ineligible. They don't like it but they eventually have to turn it over.
Q: Who else involved in the investigation would be covered by this? Are college boosters covered by this as well?
A: Current and former employees and student athletes fall under the ethical conduct rule. Boosters don't. I know that in prior cases when a booster hasn't been cooperative, the institution has disassociated the booster from the program. For this reason, there is always a lot of pressure on boosters to cooperate.
Q: If the investigation of Manziel really started in June (as reported by ESPN), should we expect them to wrap it up by the first game against Rice?
A: I don't know how much the NCAA has done so far. If we were under a time crunch, we would throw everyone at that case. Depending on the facts, it could be two, three, five months. A major factor that has been part of investigations is who is cooperating. If third parties cooperate, it gets done quickly. If they don't return your phone calls, that starts adding to the time.
Whatever happens I mentioned before to other people that because of what happened with Miami (issues on the NCAA's side of the investigation), it would not surprise me that the NCAA would be very deliberate in his case regardless of what the final decision is.