Return to Bylaw Blog

Outsourcing NCAA Enforcement Not a Silver Bullet

Stephen Miller’s article about the need for the NCAA to outsource its enforcement efforts has been getting the rounds as the most recent definitive take down of the NCAA. It is good in that it is focused on one aspect of the NCAA, gives a decent example or two, and offers some actionable advice for the NCAA to do better. It is hampered by a couple of serious factual errors, and some of the examples are pretty poor.

But more than anything, the article is let down by a single major fault, which is assuming that simply outsourcing the enforcement of NCAA rules solves any problem at all. That exposes three serious flaws in Miller’s proposal.

1. Outsourced Enforcement is Still at a Disadvantage

Miller suggests that the NCAA should outsource major infractions investigations to a third-party entity and lists law firms, consulting firms, or investigative agencies as three possibilities. But unless it is outsourced to an investigative agency that is an arm of state or federal government, the enforcement arm will still lack subpoena power.

A law firm or investigative firm might have a few more tricks up its sleeve than the NCAA when it comes to finding and convincing sources to talk. But if someone does not value the ability to participate in college athletics (as an athlete, coach, booster, administrators, etc.) as much as they value keeping quiet, there’s not much more a law firm can do.

2. Money Creates as Many Problems as it Solves

In addition to outsourcing investigations and decisions to outside parties, Miller also proposes increased investment by the NCAA in enforcement. He even throws out a number: about $23 million per year.

Combine those two ideas and the problem becomes immediately apparent: the NCAA will be offering $23 million a year to one or more organizations, and keeping that $23 million/year contract will depend on doing the job of enforcement to the NCAA’s satisfaction. As long as the NCAA is paying someone money to run enforcement, they will never be truly independent. A race to be the most vigorous and honest enforcer of NCAA rules is no more likely than a race to be the worst or “most efficient and cost-effective” to use corporate parlance.

Unless the NCAA is prohibited from putting this pressure on its enforcement partner(s), it actually could make enforcement less independent. Right now, the NCAA national office enjoys the benefit of the fact that while the NCAA is a voluntary association, there are high barriers for a large group of schools to leave. To escape an enforcement arm that is getting a bit to aggressive, a school would have to convince enough other schools to leave the NCAA, start their own association, and figure out how to pay for the services the NCAA provides. Outsource enforcement and a weaker enforcement division is as easy as calling up the losing bidder from the last time the contacts were awarded.

3. No Reason Member Schools Would do This

If “the NCAA” was a regulator imposed on the schools, implementing all these ideas would be a cinch. But “the NCAA” is actually the collective will of the member schools. The national office maintains some discretion in enforcement like investigation tactics and hiring practices. To the extent that those decisions weaken enforcement and make it less consistent, the national office should rightfully be criticized.

But major decisions like the overall funding of the enforcement staff ultimately lie with the membership in the form of the Executive Committee and Boards of Directors. Decisions like significantly more money for enforcement or moving the entire operation outside of the NCAA are in the hands of the members.

Anyone lining up criticism of the NCAA where they are arguing a major initiative in which the member schools seems uninterested should ask themselves why the members will do it. If they will be compelled, by whom and under what authority? If they will do it voluntarily, what benefit will the members get by adopting the proposal?

The NCAA Could Do Most of This

Of all the proposals Mil+ler makes, only the actual proposal of moving enforcement to a third-party requires moving enforcement to a third-party. The NCAA could commit more money to enforcement and get a greater diversity of experience in the staff. The NCAA could establish a volunteer Committee of Infractions unconnected to college athletics. The NCAA could publish more information about the enforcement process and individual cases. And the NCAA could encourage more proactive enforcement of rules.

In fact, the NCAA is doing all these things. The progress is slow and halting at times, but the NCAA is trying to hire different types of enforcement staffers, is building a larger and more diverse Committee on Infractions, is getting more open about the enforcement process and cases, and has had major successes getting ahead of cases (like this summer’s AAU sting).

The chief benefit of Miller’s proposal then is that by outsourcing enforcement, these improvements will be sped up. But the bar to fulfill that promise is very high when it requires the NCAA to throw out all the progress it has made in the last few years and assume the members will not interfere with a third party that is catching them more frequently.

Do you think the NCAA should try using a third party for enforcement, or should they keep it within the NCAA? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!

Gain Exposure. Get Recruited.

Find opportunities for athletic scholarships and get connected to college coaches.