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Taking on the NCAA Tim Cohane's ?court case over ?his ouster as UB basketball coach ?has the potential to rock the world of ?college sports

Tim Cohane is no Tark the Shark.

Where Jerry Tarkanian is colorful and charismatic, known for his trademark shaved head and courtside towel chewing, Cohane is Oxford button down, military-trained and old school to the hilt.

Where Tark, the former University at Nevada-Las Vegas coach, is one of the winningest coaches in college basketball history, with an NCAA championship to his credit, Cohane is a former University at Buffalo basketball coach with a career break-even record over 18 seasons.

They are as different as two men can be, and yet ?they share a passion, a cause deeply rooted in their individual psyches and – because of that– a place in college sports history.

Cohane and Tarkanian are forever linked as two of the only coaches to ever take on the monolithic, all-powerful NCAA.

Cohane is suing the amateur athletic organization in Buffalo federal court and has accused it of concealing evidence, altering testimony and bullying his former players into signing false affidavits.

At the heart of his suit is the contention that he was forced out as UB's head basketball coach because of a flawed 1999 investigation, trumped up charges and his boss' desire to see him pushed out the door.

By the time the investigation was complete, Cohane had resigned and UB was on two years' probation.

"He's standing up for himself and others," said Sean O'Leary, Cohane's lawyer. "He's not the first coach or student to be raked over the coals by the NCAA."

The NCAA and UB are quick to suggest that Cohane's resignation – there's a question as to whether it was voluntary – had nothing to with his claims of a conspiracy and everything to do with his unethical behavior as UB's coach.

Chief among the allegations is the claim that ?Cohane violated NCAA rules by watching uncommitted recruits play pick-up basketball in the UB gym, a charge Cohane denies.

"These allegations were subsequently confirmed ?by independent inquiries conducted by the Mid-American Conference and the National Collegiate Athletic Association," UB spokesman Joseph Brennan said in a prepared statement.

UB officials also claim that Cohane tried to intimidate and bribe his onetime assistant into lying to NCAA investigators.

The back and forth allegations, many of them salacious and unproven, may be an indication of what's at stake, not only for Cohane and the NCAA, but also for UB and the schools of the Mid-Atlantic Athletic Conference.

At the core of their defense is one of the NCAA's most cherished protections – the legal notion that the organization is exempt from some of the Constitution's most basic rights, including the right of individuals to legal protection from the government.

Like Cohane, Tarkanian challenged that notion in a case that went all the way to the U.S. Supreme Court and resulted in a 1988 landmark decision preserving the NCAA's long standing protections.

Cohane's case, by contrast, has unfolded quietly over the past nine years. But don't mistake that lack of attention and notoriety as insignificance. There is the potential for Cohane v. NCAA to rock college athletics for years to come.

The first glimpse into that possibility came in 2007, when a federal appeals court ruled in Cohane's favor and the Supreme Court let the ruling stand. The appeals court overturned a lower court ruling dismissing the case and ordered it returned to a federal judge in Buffalo.

It was, by all accounts, one of the few plaintiff victories in the history of the NCAA. It also was one of the few, if only, times a court has suggested the national organization's broad legal protections might have limits and boundaries.

"There is no dispute that the NCAA is a private association," said Donald Remy, NCAA executive vice president and general counsel, in a prepared statement. "The court didn't disagree, but allowed Mr. Cohane to look for evidence showing otherwise in this particular instance."

> A matter of principle

To the uninitiated, Cohane's lawsuits – he is suing UB and MAC officials in a separate federal court case – might seem like the actions of a quixotic character, a man with lofty but impractical notions of taking on one of the nation's most powerful amateur athletic associations.

But dig a little deeper, and it is clear this is no flight of fancy for Cohane. There's a sense that he genuinely feels wronged by the NCAA, UB and the MAC.

"You have an individual's reputation and career destroyed," O'Leary said. "He turned that program around. His Division I coaching career was on track. That was his life and passion, and it was ripped away from him."

Cohane is seeking $50 million in damages from the NCAA, UB and the MAC, but O'Leary insists cash is not his client's ultimate motivation.

Cohane is after all a self-made millionaire.

> In the beginning

Modie Cox loves to tell stories about his former coach, and at the top of the list is the tale of the uncashed paychecks, a pile of them, found inside Cohane's desk when he resigned.

"It wasn't about a paycheck for him," said Cox, one of UB's all-time greats and the point guard on the 1994-95 team that went 18-10 and is still recognized as one of the best ever at UB. "It wasn't about money."

What it was about for Cohane, Cox insists, is the young men he cared so much about and the game he loved.

Cox still talks about the time he got in trouble with the law in 1996. Cohane was the first person to visit him in jail. His former coach also loaned him $12,000 to help with his legal bills, an act that later came under question by investigators.

Cohane's love of basketball is rooted in a lifetime around athletes and coaches. His father, Tim Sr., was sports editor of Look magazine and good friends with Vince Lombardi and Red Blaik, the legendary Army football coach.

Tim Cohane often traveled to games with his dad and, during one of those trips, found himself in the locker room after Army upset No. 2-ranked Duke. Lombardi was an assistant to Blaik at the time.

"Going into that locker room, seeing Blaik and Lombardi and the rapport of this team that had done something really remarkable, that really stayed with me," Cohane said during a 1995 interview with The Buffalo News.

But it was basketball, not football, that Cohane gravitated toward, and he was good enough to play in college at Holy Cross. Well, at least until a panty raid that went bad resulted in his expulsion and landed him at the Naval Academy in Annapolis.

It was 1967, the Vietnam War was at its height and Cohane, fresh from the Academy, opted to roll the dice and volunteer for combat.

By volunteering, he could limit his time overseas and be back in the United States within a year, ready and able to do the one thing he really loved – coaching basketball.

Unfortunately for Cohane, volunteering also meant almost certain duty as a riverboat commander. In his case, it was a riverboat on the Mekong Delta, in the heart of some of the war's worst fighting.

"It was insane," Cohane told The News in 1995. "We had a lot of firefights, where you had rockets fired at you. It was pretty hairy duty."

But he survived and, after leaving the Navy in 1969, he began his coaching career with a stop at Iona Prep in New Rochelle.

From there, it was on to Manhattanville College in Westchester County – the site of his unfortunate panty raid years earlier – where he built a successful Division III program and earned two trips to the NCAAs.

His big break came in 1979 when Division I Dartmouth College came calling. Cohane now admits his overwhelming desire to win led to more than a few disputes with college administrators over recruiting.

Four years after he started and after going 30-74, Cohane was fired.

"At the end of four years, I was broke, disillusioned and married with three kids," he told the New York Times in 1989.

A short time later, he paid a visit to the floor of the stock exchange and realized he could find the fast-paced excitement he was looking for outside of basketball. Salomon Brothers hired him as a trainee even though he was older, and it was during his training that Cohane reconnected with Larry Rafferty, a former Fairfield College player. Together, they formed Cohane Rafferty Securities and set out to make millions dealing mortgage securities.

But a love of coaching never leaves, and Cohane soon rediscovered the lure of college basketball. By the time he left Wall Street, he was ready to take his once-promising reputation as a Division III coach and look for work.

He took his mixed record of success and landed at the U.S. Merchant Marine Academy. He spent two years there before becoming assistant head coach at West Point and later Boston College.

It was at BC, under then coach Jim O'Brien, where Cohane started to get noticed, and one of the first to come calling was a program many thought was on the rise – the University at Buffalo.

This was Cohane's second chance to shine and perhaps his last opportunity to prove once and for all that he belonged in the upper echelon of college coaches.

"Some people he rubbed the wrong way," said Cox, who was already at UB when Cohane arrived. "But he always ran a clean program. He was just a stand-up guy."

> The damage done

There are times when Frank Valenti can't talk about what happened 12 years ago. And you can hear the reasons why – the anger, frustration and yes, even sadness – when his thick Brooklyn accent suddenly turns quiet.

"Everyone was unjustly hurt by this," Valenti said, his voice quavering with emotion. "I just hope Tim gets his day in court, because that will be a whole new ball game."

Valenti, an assistant coach under Cohane, is one of the few people who was front and center during the investigations into UB's program.

More than a decade later, he still is waiting for the day when he and everyone else who was damaged by what happened has an opportunity to set the record straight.

To hear Valenti talk, it all started with the two men most eager to see Cohane pushed out the door – then Athletic Director Robert Arkeilpane and fellow assistant coach Eric "Rock" Eisenberg.

"Arkeilpane wanted to get rid of Tim, and Eisenberg was needed to reach that end," Valenti said from his home in Florida.

Arkeilpane has never denied his unhappiness with Cohane as a coach, but he and others are just as quick to suggest that his claims of a conspiracy are baseless.

"They're not true," said Robert Todd Hunt, a lawyer for the MAC. "We certainly don't believe there's a conspiracy. We've denied that."

It's difficult, if not impossible to know for sure who's right and who's wrong, but one thing is clear: Both sides in this 9-year-old civil case have spared nothing in going after each other.

Scattered throughout the court papers are allegations of illicit behavior by Eisenberg, bribes and threats by Cohane, and intimidation and bullying by officials at the NCAA, UB and the MAC.

None of it is pretty, especially given the backdrop of a highly regarded university, but it may provide a glimpse into what is at stake.

"Mr. Cohane has pursued a civil damages lawsuit, trying to force the university to pay him $15 million, claiming a lack of due process and university harm to his reputation," said UB's Brennan. "The university strongly and consistently disputes these claims."

Chief among the allegations is Cohane's contention that many of his players were forced into signing false statements as part of the MAC and NCAA investigations.

A few of those players have since come forward and signed new affidavits claiming they were forced to lie or face the loss of their scholarship or degree.

"No interview, no degree," said O'Leary. "You can't do that to kids."

One of those players, Maliso Libomi, said he signed an affidavit in 1999, accusing Cohane of watching recruits play pickup basketball because a UB official led him to believe everyone on the team was saying the same thing.

He also claims the official threatened him.

"If I didn't sign the affidavit, I might lose my scholarship," Libomi said in a later affidavit submitted on Cohane's behalf. "Because I was scared, I signed an affidavit that contained inaccurate statements."

Libomi said he was again threatened in March 2000 when another UB official told him he might not get his degree unless he interviewed with NCAA investigators.

The NCAA has flatly denied the allegation.

"The NCAA staff didn't rely on false affidavits or intimidating student-athletes," said Remy. "The NCAA denies Mr. Cohane's allegations about defects in the NCAA investigation."

UB and the NCAA have countered with allegations of their own, including the contention that Cohane tried to coerce false testimony. Eisenberg said he met privately with Cohane at a Williamsville restaurant in October 1999 and that his boss tried to buy his support.

"Cohane tried to get me to alter my testimony by offering to absolve a $28,000 financial debt that I owe him," Eisenberg said in an affidavit.

O'Leary says Eisenberg's statement "isn't worth the paper it's written on" and noted that Cohane's former assistant has already retracted other allegations, including the all-important claim that Cohane watched recruits play in the UB gym.

> Personal fouls

The accusations of false testimony and witness intimidation pale, in some respects, when compared with the sordid tale of what allegedly happened in December 1998 while UB was playing at a tournament in Hawaii.

In Valenti's eyes, that's when Cohane's demise as head coach really began.

It was an off day for the team, and Valenti's son, Daniel, a team manager, had met two young women at the hotel pool. The younger Valenti says assistant coach Eisenberg was there as well and at one point invited the women up to his room.

"While in Mr. Eisenberg's room, Mr. Eisenberg requested I take a photograph of him and the two girls," Valenti said in an affidavit. "I complied and took a photograph of him with the two girls sitting on his lap."

A copy of the supposed photo, as well as a letter from one of the women, who claimed to be 18 at the time, is included in the court record.

The affidavit goes on to suggest that Eisenberg began acting in an "inappropriate manner" when all of a sudden there was a knock at the door.

"There were two girls on the bed," said Frank Valenti, who said he had gone looking for his son. "I turned to Eisenberg and said, ‘What the hell are you doing here?' "

Valenti didn't report the incident to Cohane until months later, a decision he now regrets, but he still wonders why UB never looked into it. He said he detailed the incident in a letter to then UB President William Greiner.

"That was just swept under the rug," O'Leary said. "How could something like that not be completely vetted and investigated?"

Valenti thinks the Hawaii incident is significant, not only because it raises questions about the credibility of UB's investigation, but because it may have been the reason Eisenberg wanted Cohane out of the picture.

"Self-preservation," Valenti said. "I think he wanted to keep the Hawaii incident a secret."

A lawyer for Eisenberg and Arkeilpane, both now gone from UB, declined to comment for this story.

> Due process undone?

When it comes to safeguarding individuals in our society, there are few aspects of the Constitution more important than due process.

Even older than the Constitution itself, and maybe even the Magna Carta, due process recognizes a person's need for protection from a ruling authority.

To hear Tim Cohane talk, he never enjoyed that protection, and it cost him his job and reputation.

"He's saying there were allegations that he wasn't able to respond to," said Frank Housh, a local civil rights lawyer not involved in the case. "If he can prove the NCAA willfully participated with UB to push him under the bus, I think his case will go forward."

Housh, who handles a lot of 14th Amendment due process cases, said Cohane's suit is unusual in that it represents one of the few cases against the NCAA in which the plaintiff has had some success.

"I would say the NCAA has a problem," said Steven M. Cohen of Hogan Willig, another civil rights lawyer with no ties to the case. "I think Cohane should have been granted better due process."

At the heart of the NCAA's defense in both Cohane and Tarkanian is a little-known legal concept known as "state actor," a term used to describe a person acting on behalf of a governmental body.

Under federal law, state actors are subject to the Bill of Rights and are prohibited from violating certain individual protections and freedoms.

From Day One, the NCAA has argued it is not a state actor, never has been and is therefore not required to provide Cohane with the same type of due process required by the Constitution.

In the Tarkanian case, the Supreme Court agreed by a narrow 5-4 vote.

"I actually think it was the correct decision," said Matthew Mitten, director of the National Sports Law Institute at Marquette University. "It would be practically impossible for the NCAA to provide the level of due process required by the 14th Amendment."

Mitten, who has followed the NCAA lawsuits, thinks the organization's legal position is sound in that it remains, despite its size and clout, a private entity whose rules are the result of a private partnership with its members.

He also thinks the NCAA does a good job of providing due process within its own internal framework.

"It provides a fair opportunity to be heard," Mitten said of the NCAA. "I think there's adequate safeguards to ensure fair hearings."

Cohen doesn't buy it. He thinks the organization may have once been justified in arguing it is not a state actor, but that its emergence as a national, monolithic power has made it ubiquitous.

He also worries about the human consequences of allowing an organization as large and as powerful as the NCAA to be exempt from such an important aspect of the Constitution.

"The effect of treating the NCAA as a private entity creates an environment where unfairness and discrimination can prevail," Cohen said.

In the eyes of those who have taken on the NCAA, Cohen's fears are their reality.

"They always thought they were it," said Samuel Lionel, the Las Vegas lawyer who represented Tarkanian before the Supreme Court. "Anyone who stood up to them, they went after."

Cohane, currently an associate head coach at Roger Williams University in Rhode Island, seems determined to do what others have failed to do – beat the NCAA.

His case is back in Buffalo federal court, where the two sides are preparing for a possible trial.

email: pfairbanks@buffnews.com

> GRAPHIC: The Cohane Era / From basketball court, to court docket

April 1993: UB announces the hiring of Boston College associate head coach Tim Cohane to be head basketball coach

April 1995: Cohane gets contract extension after going 18-10 that season

October 1999: Mid-American Conference begins investigation into the UB program

December 1999: UB announces Cohane's resignation and the hiring of Reggie Witherspoon

March 2001: The NCAA places UB's men's basketball on two years' probation for numerous violations

January 2003: Cohane sues officials from UB and the MAC in federal court

March 2004: Cohane files a separate suit against the NCAA in federal court

March 2006: A federal judge rejects UB's motion to dismiss the suit

January 2007: An appeals court overturns a lower court ruling dismissing the NCAA suit

November 2007: U.S. Supreme Court allows Cohane's suit to move forward