After the defeat of the $2,000 stipend and delays in rewriting the Division I Manual, last year’s NCAA Presidential Retreat needed another win to go along with multi-year scholarships and regain some momentum. After the
Penn State decision, the NCAA and President Mark Emmert are about as popular as they tend to get, which was unexpected. Perhaps that’s why the new enforcement model endorsed by the Board of Directors is getting some favorable reviews.
A lot of the specifics look good, but it’s in the bones of the model that determines success or failure. Despite being touted as dramatic new changes to how the enforcement system operates, most of the recommendations are tweaks, remixes of old ideas, or face big obstacles in reaching the vision of the working group; and that means whether this new model turns out to be an improvement is far from decided.
The New Violation Structure
The second most ballyhooed part of the new enforcement model, the violation structure, has to be addressed first. Simply put, the new model claims to change the classes of violations from this:
- Level I
- Level II
- Level III
- Level IV
The problem is that the former was not how violations were classified. Formally, they were classified like this:
- Major Violations
- Level I Secondary Violations
- Level II Secondary Violations
Level II secondary violations were handled by conferences, often had prescribed penalties that schools could easily self-impose, normally did not affect the eligibility of a student-athlete (beyond perhaps paying restitution) and involved minor or technical rules. Here is part of the definition of the new Level IV violations:
“A minor infraction that is technical in nature and does not constitute a Level III violation. Level IV infractions generally will not impact eligibility for intercollegiate athletics.”
The definition is essentially the same. Level IV violations will be handled by the conferences, with periodic reporting to the NCAA, just like Level II secondary infractions are now.
Major infractions could, as a matter of practice, be separated into two categories: those which could be settled using summary disposition, and those which required a hearing. This created a class of violations which could be handled solely based on written reports, quicker than other larger, more contentious cases. Within the Level II violations, here are some of the new process enhancements:
- Expand summary disposition to include cases where the facts are not agreed upon.
- Explore use of the summary disposition report as the infractions report.
- A “rocket docket” to finish hearings within 60 days of an institution receiving a Notice of Allegations.
- Video conferencing instead of in-person hearings.
The Level I/Level II distinction simply makes explicit the implied difference between violations that were major but not difficult or significant cases and major violations that were, thus required a hearing. The old categories can be matched with the new ones:
• Major infractions requiring a hearing : Level I
• Major infractions with no hearing : Level II
• Level I secondary infractions : Level III
• Level II secondary infractions : Level IV
So is this just marketing/PR spin? Yes, but it is not directed at the public. It is directed at the NCAA members, particularly coaches. One of the hardest places to get buy-ins is from coaches who understand they commit violations and are willing to accept penalties, but who bristle at being lumped in with “cheaters.” Now coaches accused or found guilty of Level II-IV violations can point to Level I violators as the real bad guys. That should make stiffer, more public penalties for minor violations, particularly coaching suspensions, a bit more palatable.
The Penalty Matrix
Quick bit of trivia: When was the last time there was a major change to the enforcement model?
Most people will be shocked to know the answer was last year. Based on recommendations from the Committee on Infractions, the Division I Board of Directors adopted Proposal 2011–7 at their April 2011 meeting.
That proposal radically simplified Bylaw 19.5.2, which covers the penalties for major violations. The Committee on Infractions was given essentially free reign to impose sanctions from a list of penalties that included all the usual suspects like recruiting restrictions, scholarship loses, postseason bans, and show-cause orders, along with the catch-all “other penalties as appropriate.”
Prior to last year, major violations should have been handled much differently. Bylaw 19.5.2 started with a list of presumptive penalties, which included:
- Two years probation;
- Reduction in official visits for one year;
- Off-campus recruiting ban for one year;
- Firing, suspension for one year, or reassignment outside the athletic department of all involved employees;
- Scholarship reductions;
- And a postseason ban in some cases.
Those penalties should have been applied in every major infractions case unless the Committee on Infractions specifically addressed in the report why not. From there, the Committee could add penalties from essentially the same list available now.
Under the new enforcement model approved this year, the penalty structure reverts to the one in place prior to April 2011. The only difference is more lists of prescribed penalties, based on the Level I vs. Level II distinction and the presence or absence of aggravating and mitigating factors. But the prescribed penalties are still not required, and the Committee on Infractions is still permitted to pick from a list that includes any penalty they can dream up.
The New Committee on Infractions
In addition to changing how violations are classified and what the penalties should be, the new model also envisions a radically different Committee on Infractions. The Committee is schedule to more than double in size and include university presidents and former coaches amongst the compliance professionals, conference commissioners, faculty athletics representatives, law professors, and private lawyers. Rather than gathering the entire band together for every case, hearing panels of five to seven members representing at least two of the types of members will hear and decide most violations.
It is a noble effort, but only an effort at the moment based on the words “to the extent reasonably possible” in the proposed new version of Bylaw 19.5.1 (renumbered, penalties are moved to Bylaw 19.11). Keep in mind that service on the Committee on Infractions is some of the most difficult in the NCAA governance structure. The bigger committee may alleviate this somehow, but it will still be a great amount of additional work done on a volunteer basis. How many athletic directors, university presidents, or retired coaches will sign up for that?
In addition to the issue of self-selection, the model recommends a more thorough vetting of nominees. Who will be doing much of the vetting?
The working group believes that the current Committee on Infractions can provide valuable input regarding the expansion of the committee and the selection of new members.
So the new ideal Committee on Infractions makes three big assumptions:
- That a more diverse group of people are willing to serve on the Committee.
- That in this group of interested people there are enough with the knowledge and skills to be effective members.
- And that these people can make it through a vetting process where significant weight is given to the current Committee’s recommendation.
The new committee includes seven different categories of individuals, so in theory it should include three or four of each. The odds of getting that with the vetting requirements seem steep. And the odds of getting all that with representation across Division I (i.e. a good mix of FBS, FCS, and non-football representation) seems almost impossible.
So What Really Was Done?
After all this, the practical outcome of the new enforcement model looks more like tweaks than a complete restructuring. What looks to be a new violation structure is actually more explicit definitions of existing categories. What looks like a new penalty structure is actually a refresh of a concept abandoned just a year ago. And what looks like a new type of Committee on Infractions must overcome some major practical challenges.
It is not that the working group’s efforts lead to nothing. The most important thing that will happen on August 1, 2013 is that a big reset button will be pushed on NCAA enforcement. The message is that starting now, things will get better. As it should be. If the NCAA has to address every past mistake or wrong in order to move forward, nothing will happen.
It also does not matter that much if the public is unsatisfied with the changes, which is likely to be the case. How members of a voluntary organization judge and punish each other needs to work for the members and comply with the law (it does the latter, the former remains to be seen). (Student-athlete reinstatement is different beast and a topic for another even longer post).
The ultimate question of whether these changes work rests, however, in the same place that the previous enforcement process was accused of relying too much on: the judgment of the members of the Committee on Infractions. Even though they will be codified into the NCAA Manual, all of these changes are just recommendations to the Committee. If they choose to follow them closely and rarely, if ever, depart, it will be a big change. But the COI could just as easily decide to keep things business as usual.