NCAA’s New Enforcement Model A Mix of Old and Older

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

NCAA’s New Enforcement Model A Mix of Old and Older

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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:

  • Major
  • Secondary

To 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:

  1. That a more diverse group of people are willing to serve on the Committee.
  2. That in this group of interested people there are enough with the knowledge and skills to be effective members.
  3. 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.

What do you think about the NCAA’s new enforcement model? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!

 

Posted on by John Infante
This entry was posted in Bylaw Blog, Bylaws, NCAA Penalties. Bookmark the permalink.
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2 Responses to NCAA’s New Enforcement Model A Mix of Old and Older

  1. Voice_of_Reason says:

    Interesting post. It’s unfortunate in my view that the NCAA continues to move along this path of really no accountability. As you noted in respect to the recent ruling on the UCF case, there is no explanation for what happened to USC. And I know many on here are not USC fans, but they should keep in mind that the COI’s abuse of discretion in handling the USC case is very troubling. Think about it, an AD of a rival school could use the COI in an abusive manner to unjustly punish some, while “looking the other way” for others.

    I think you make a great point about the self-selection of members on the COI. This goes to the heart of the problem. I think there has been a tendency for those who wanted to serve were looking for additional power and control over the sport. Look at Paul Dee. He was the AD of Miami during ’90s Pell Grant scandal. Following Miami being hit with some stiff penalties, Paul Dee began to take on increasing roles with the NCAA and ultimately on the COI. I find it difficult to believe that his interest in serving on the COI was motivated by a desire to “clean up” college sports. Rather, I think he saw the light. If he controlled the COI, he could ensure no additional investigations of Miami, while at the same time, using the COI’s power against rivals (or disfavored schools). His plan worked almost perfectly. The scandals at Miami beginning in early 2000′s went unchecked for almost a decade – all the while Dee is serving on the COI and as Miami’s AD. If not for the media breaking the story on Nevin Shapiro, Dee would have been sure that this was swept under the rug.

    So there’s the rub. The “new” COI is going to be headed up on a voluntary basis by individuals associated with a participating school – i.e., people with conflicts of interest, like Paul Dee. Thus, those who “choose” to serve are more likely to be those individuals who see the power of service. Do you think it is a coincidence that Pat Haden, USC’s athletic director, is increasingly involved with the NCAA and part of the group supporting the “new” penalty matrix? Not at all, SC has seen the light too. Service is power and will help to ensure that nothing similar to the sanctions it received will ever happen again. Put this in perspective. Does Haden really think the NCAA is “fair” and that the penalties handed to USC, as well as to subsequent violators, consistent and just? Absolutely not. Haden, a lawyer by training, has publicly stated in emails to alums that the NCAA has no due process. Haden, a lawyer and AD, makes the rather scathing allegation regarding the NCAA’s enforcement process that the NCAA has no due process, yet now he has taken on increasing involvement with the NCAA? Does that mean he now supports the NCAA? Nah, I think he’s seen the light. Perhaps Haden’s motivations aren’t as nefarious as Paul Dee’s clearly were, but I am sure he also recognizes that, without the power, USC is exposed to the arbitrary whims of the NCAA and whoever it is that then-serves on the COI.

    So there you have it. The plan, as I think most now see, isn’t necessarily to really “clean up” college sports, but instead and more importantly, ensure your school is “connected,” so that you can exert influence over which purported infractions are investigated and which ones are not. Which matters to keep open for years on end in effort to dig for evidence (USC case) and which ones are disposed of in months without interviewing all witnesses (Ohio State). What a shame when the member schools understand that influence trumps compliance.

    Thanks again, for what I believe to be, a fairly impartial and candid assessment of a troubled organization.

  2. Matt says:

    It is hilarious that the previous poster mentioned Ohio State. The tattoo scandal was a farce from start to finish. It is hypocritical to punish student athletes for trading their own memorabilia for tattoos. Ohio State received a bowl ban, the invalidation of the Sugar Bowl’s results, a three man scholarship reduction, and the loss of a beloved coach because five kids traded their own property and Tressel didn’t inform the NCAA quick enough. Yet, Cam Newton’s father receives $250,000 to play at Auburn and no real investigation or punishment is administered. It seems like Emmert redesigned NCAA enforcement to benefit favored teams in the SEC. Alabama has had countless occurrences of athletes with brand new cars under suspicious circumstances, bought from a dealership partially owned by Nick Saban; no investigation, even after an assistant coach pays $500 to a starting safety and a former player admits paying off other players for an NFL agent. Florida, Georgia, Tennessee, Texas A&M, Ole Miss, MSU, Auburn, and others all have similar skeletons in their closets. SB Nation even ran an article that discussed playoffs with anonymous SEC bagmen; no investigations. The system has become a joke. It is designed to benefit the corrupt and it is only enforced against schools that compete with the favored schools. I hope the O’Bannon case destroys the corruption of college sports. If the playoffs are above board, competition will be more fair.

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