By Daniel Libit

For months, the University of New Mexico has performed rhythmic gymnastics around the question: who is the target of an internal investigation into the athletic department? It’s been an impressive commitment to evasion, one that has most recently caught the attention (and ire) of New Mexico’s Attorney General. The AG’s office sent a stern letter to UNM’s interim President Chaouki Abdallah, complaining that the school was “using taxpayer dollars to secretly look into matters rather than properly forwarding those allegations and concerns to our criminal investigators.”

NMFishbowl.com, which broke the news of the investigation back in September, remains the only media outlet to have independently confirmed — through sources apprised of the inquiry, and witnesses who have been interviewed as part of it — that football coach Bob Davie is a key subject of scrutiny. Now, through a public records request, we’ve obtained a number of documents that affirm this fact while further illuminating how the probe is shaping up.

Though UNM has strained to avoid fingering Davie in public comments or internal documents related to the probe, a draft of an engagement proposal by Chicago-based law firm Hogan Marren Babbo & Rose — which UNM hired last month to continue the investigation — leaves little doubt Davie is under the microscope.

In the 21-page report, dated Nov. 8, Hogan Marren proposes its services “to conduct an on-campus investigation of certain allegations of (a) misconduct involving physical abuse of football players and (b) interference with and improper involvement in an investigation of alleged sexual assault by a football player by UNM police.”

NMFishbowl.com has previously reported that the investigation was looking into allegations that Lobo football coaches had been improperly involved in campus police sexual assault investigations.

On Monday, the Albuquerque Journal reported that new Athletic Director Eddie Nuñez, in an interview, expressed incredulity that the investigation was principally focused on the athletic department, let alone Davie. Nuñez, who pledged a new era of transparency and openness in an interview with NMFishbowl.com last month, did not respond to a request seeking his comments for this story.

The Hogan Marren proposal suggested an “anticipated timeframe” of completion by mid-December. An unsigned copy of the engagement letter between the firm and the university, obtained by NMFishbowl.com, did not specify an end date.

NMFishbowl.com has also obtained an evocatively marked-up copy of the most recent addendum to Davie’s contract, which he signed last November. It indicates that, as part of its investigation, UNM may be exploring whether Davie committed a fireable offense that would negate the buy-out provision of his employment agreement. This specific copy of the contract was attached to an email University Counsel Elsa Cole sent to Hogan Marren lawyer Charles P. Rose. It included hand-written stars next to the following subparagraphs in the section titled, “Unethical Conduct”:

• “Knowingly furnishing the NCAA or the University false or misleading information concerning Coach Davie’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation;”
• “Refusal to furnish information relevant to an investigate of a possible violation of federal or state law or University policy when requested to do so by lawfully authorized federal or state agents or University officials; or”
• “Refusal to comply with regulatory or policy requirements, including but not limited to the reporting requirements imposed by the Jeanne Clery Disclosure of Campus Security Policy and Campus Statistics Act, Tixle IX of the Education Amendments of 1972 (the ‘Clery Act’) and any and all University policies relating thereto.”
• “Coach Davie’s agreement to refrain from unethical conduct is a material term of Coach Davie’s employment and this Agreement. Coach Davie expressly understands and acknowledges that unethical conduct is sufficient justification for Termination for [sic] Agreement for Cause as described in paragraph 9.” [Emphasis added.]

Davie’s current contract runs through the end of 2021. If UNM fires him without cause, the agreement stipulates that UNM would owe him a severance of his pro-rated base salary ($422,690) for the remainder of the contract term. A straightforward reading of the agreement suggests that if, for example, UNM sought to buy Davie out of his contract on Jan. 1, 2018, the school would owe him $1.69 million. However, if Davie is fired for what is termed “adequate cause”,  the school would not owe him anything after the termination date.

A UNM spokesperson did not respond to a request for comment about whether the school was looking into this potentiality. Nuñez told the Journal on Monday that Davie has his “full support right now.”

It is worth noting that the aforementioned “Unethical Conduct” language did not appear in a previous addendum to Davie’s contract, which he signed in 2014. The additions may have something to do with the fact that, a month before Davie agreed to the latest contract extension, the U.S. Department of Justice announced it had reached an agreement with UNM about reforming its policies dealing with sexual assault reporting. This followed a 16-month federal investigation into complaints that the university routinely failed to adequately follow up on reports of campus assaults.

On Nov. 17, Cole sent Rose an email with the subject heading, “News stories per your request,” which contained 19 PDFs of Journal articles relating to several different rape allegations made against Lobo football players.

Two days before, Cole emailed Rose about a confidential settlement agreement. Because of a redaction, it is not clear what specific agreement she was referring to. However, in 2016, the university settled with a former female student, who claimed she had been raped by football players Crusoe Gongbay and Saqwan Edwards. Her suit claimed that university officials in the athletic department and the school’s Office of Equal Opportunity had interfered with the police investigation and that Davie had failed to immediately alert UNM’s Title IX coordinator, once being made aware of the allegation.

Neither Gongbay nor Edwards were ever charged with a crime, and they subsequently filed their own lawsuit against UNM’s police department, claiming their civil rights had been violated in the course of the investigation. That suit is still pending in federal court.