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NCAA Playing Dangerous Game of Whack-a-Mole With Criticism

As an organization that often has to compromise and find the middle ground between two ideals, the NCAA often finds itself under attack from both sides. Listen to enough people and you will learn that the NCAA is both too commercial and not commercial enough. Or that the NCAA enforces improper academic standards as well as academic standards that are not meaningful. Or that the NCAA is both too aggressive in its enforcement efforts and allows cheaters to continue without repercussion.

But one of the biggest and most challenging are the twin claims that the NCAA is both an inflexible bureaucracy and a shadowy cabal making it up as they go along. For the record, an organization can be both, with strict rules and procedures that it always requires its constituents to follow until they become inconvenient for the organization. But in a few recent cases across a variety of its functions, the NCAA is clearly trying to shed its reputation as the former. A few examples:

  • The “motions” on behalf former Miami coaches facing accusations heard by the Committee on Infractions
  • St. John’s getting three extra appeals for Orlando Sanchez
  • The Rules Working Group requesting feedback on three controversial new rules

With regard to the coaches’ motions and the feedback on proposals, the most curious aspect of the NCAA’s action is how it is jumping the gun. In both cases, there is a process that should play out over the coming weeks or months that may accomplish whatever the NCAA is trying to accomplish. The coaches will face a hearing where they can present their arguments and exculpatory evidence. And the proposals are currently in the override period where universities can ask that they be reconsidered along with offering specific objections.

In Orlando Sanchez’ case, it is hard to see the rationale for giving St. John’s five bites at the apple. Over the past few years, the NCAA has generally eliminated third appeals. Recent rule changes that might have helped Sanchez, that extend the delayed enrollment period another year without penalty for national team duty, would still not appear to help him. And the new evidence St. John’s is presenting, regarding the difficulty of transferring credit, does not seem to meet the NCAA’s standard for reconsideration which requires that it was “not available to either the student-athlete or the applicant [institution]” when a case is originally filed.

Looming over these specific incidents are the Presidential Retreat and the Penn State sanctions. Both suggest a new way of doing business for the NCAA. This in spite of the fact that the NCAA has insisted both were extraordinary, temporary measures. But each time the NCAA goes outside of its adjudicative or rulemaking processes, it feeds the perception that not only is the NCAA making up the rules as they go along, but that the NCAA is also making up the rules on how rules are made up as they goes along.

Flexibility and responsiveness are good qualities for a regulatory body to have, but they are easily exploited as well. The common factor in the three recent incidents is public pressure and bully pulpits. The NCAA has been battered in the press for the Miami investigation and the Sanchez decision. And while plenty of schools and conferences has complained about deregulation before, in this case it was the Big Ten and a host of major conference football coaches and athletic directors.

The danger is that the NCAA ends up allowing its processes to be taken over by the college sports equivalent of armies of lawyers and special interest groups. If we assume that the new evidence St. John’s has is relevant, there is no process that can both ensure that Sanchez not pay the price for the school’s mistake that also is immune from even larger schools pounding it with lawyers, compliance officers, documents, and arguments. By allowing something called a “motion” to be heard, especially without explaining that is not a thing in a major infractions case, the NCAA is implicitly allowing itself to be the victim of motion practice. Large schools already enjoy more votes and greater representation in NCAA governance, giving them the power to also rehash their own decisions outside the rulemaking process seems a little much.

All the actions the NCAA is taking are positive, even popular. In a major infractions case with evidentiary problems, letting the coaches challenge that evidence is a good thing. Orlando Sanchez should be able to present his case as to why a rule should not apply to him. And no rule should be passed in a membership organization without some input from the members.

But in each of these cases, those mechanisms already have or already are playing out. If the NCAA’s goal is to appear more caring and flexible, they are in danger of looking weak and inconsistent. Trying to repair the NCAA’s image in these instances is a fool’s errand. No outcome in any of these three cases will be universally applauded. The best the NCAA can hope for is backhanded compliments and demands to know why the same thing did not happen earlier or in this case or that case.

And if the national office and NCAA leadership is embarking on a strategy to calm the concerns of the membership, that is an even trickier balancing act. The appearance of too much power and inflexibility at the national office might ultimately drive members away. But too little control and too much of a willingness to bend rather than break will end up with the NCAA as the same organization those want-away members would like, but also with the brand name and credentials of the NCAA.

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