NCAA and Elaine Marshall Are Not Playing Nicely in the Subpoena Sandbox

Lost in the din of the announcement of Bubba Cunningham as UNC's new AD, Late Night with Roy and the opening of hoops season, and a big ACC game with Miami this weekend is this territorial tug-of-war between the NCAA and the North Carolina Secretary of State's office (from the AP via ESPN):

The North Carolina secretary of state's office wants a court to force the NCAA to turn over documents from its investigation of UNC's football program to see if the state's sports agent laws were broken.

In a petition filed Thursday, Elaine Marshall's office is seeking several items from the NCAA's probe, including an unredacted copy of the notice of allegations outlining nine violations as well as records of interviews conducted by NCAA staff -- including ones focused on former associate head coach John Blake.

Blake's close friendship with late NFL agent Gary Wichard has been a key part of both the NCAA and secretary of state's probes. The NCAA began its investigation into improper benefits and academic misconduct in June 2010, then Marshall's office followed the next month.

According to the petition, the NCAA refused in July to comply with subpoenas from Marshall's office seeking the records. The two sides failed to resolve the dispute in a phone conversation last month, with the NCAA saying it would only produce documents in response to a subpoena in its home state of Indiana -- and only then with confidential information redacted, according to the petition.

The petition said the NCAA's proposal "would frustrate" the secretary of state's investigation. A hearing is scheduled for Nov. 28 in Wake County court. Marshall said in statement that she wouldn't comment publicly on the matter before the hearing.

Marshall made waves last summer when, in the middle of a campaign for a U.S. Senate seat, she announced her office was going to actively pursue agents who might have violated the state's Universal Athlete Agent Act, which requires agents to register with the Secretary of State’s office and prohibits them from offering anything of value to student-athletes until their eligibility is exhausted. Marshall's office aggressive pursued the late Gary Wichard, going so far as to subpoena his banking records, which were in turn used as a major piece of evidence by the NCAA in saying Blake was attempting to steer players to Wichard. Marshall's investigation pretty much went dormant after the initial push, despite Wichard being suspended by the NFL Players Association for improper contact with collegiate players. Now it appears that period of dormancy is over but the NCAA is not playing ball by releasing key documents to the SoS office.

If nothing else, this case represents the weird paradox between the quasi-investigative powers of the NCAA and the real investigative powers of the Secretary of State's office.  The NCAA does not have subpoena power nor can they compel anyone to appear before them who does not want to (see Jennifer Wiley), but they do have a coercive and effective power in eligibility for student-athletes and the potential for show-cause penalties for  coaches. On the other hand, the Secretary of State's office does have subpoena and criminal investigative power, but no athlete or coach in their right mind would appear before the SoS office without an attorney. Yet players and coaches appear before the NCAA all the time without rights or representation, which has been Bob Orr's big argument.

But more important is the exposure of the complete hypocrisy of the NCAA to any type of reform as it relates to agents and amateurism. The NCAA expects full and complete cooperation and submission by its member institutions but refuses to give the same in return to other investigative bodies. The only way to keep agents and runners out of college sports is to hit them in the pocketbook and/or have them face legal consequences. While the investigation has been uneven, at least the NCSoS has looked into the matter, and yet the NCAA advocated for states to pass the Uniform Athlete Agent Act to protect athletes, but is ignoring the law’s mandates.

For the NCAA to block and fight an effort to hold agents accountable over petty issues like subpoena jurisdictions is asinine and sends the wrong message to the member schools who are expected to be on the front lines, keeping agents away from players and apparently monitoring their Twitter and Facebook accounts. Yet another self-inflicted reason the NCAA is subject to ridicule.

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