The NCAA Infractions Enforcement Process - Role of Counsel
For schools and coaches involved in the NCAA infractions enforcement process, the process can be confusing, labor-intensive, and reputation and career threatening. Legal counsel can help schools and coaches navigate the process and mitigate its negative consequences. As in other practice areas, the assistance that legal counsel can provide to schools and coaches regarding the NCAA infractions enforcement process includes giving proactive risk management guidance, investigating potential misconduct, researching and applying legislation and case precedent, preparing clients for interviews and hearings, and advocating clients’ positions to opposing parties and fact finders.
OVERVIEW OF THE NCAA INFRACTIONS ENFORCEMENT PROCESS
The NCAA is a voluntary association of colleges and universities that governs college athletics competition among its members. NCAA schools and their coaches agree to abide by NCAA bylaws which address issues such as amateurism, recruiting, financial aid, academic eligibility, and parameters of practice and competition. NCAA bylaws also establish procedures whereby the association enforces compliance with its bylaws. These compliance procedures are generally referred to as the “infractions enforcement process.”
A school or coach becomes involved in the infractions enforcement process when the school internally discovers a potential bylaw violation or when the NCAA enforcement staff, the association’s staff tasked with investigating potential bylaw violations, becomes aware of a potential violation. Once the infractions enforcement process begins, its course depends upon whether the school or the enforcement staff concludes that a violation occurred and, if so, the perceived severity of the violation.
Currently, violations are categorized as “secondary” or “major.”
If a secondary violation appears to have occurred, then generally, a school submits a self-report regarding the violation and resulting self-imposed sanctions to the enforcement staff, and the enforcement staff concludes the case by accepting the school’s report, sometimes with the imposition of additional sanctions.
If a major violation appears to have occurred, then the enforcement staff issues a Notice of Allegations setting forth the alleged violation, and the process continues on one of two paths: Summary Disposition or a Committee on Infractions hearing.
In Summary Disposition, the enforcement staff, the school, and any coach named in the Notice of Allegations agree on the underlying facts and appropriate sanctions. Then, they jointly submit a report about the violation and resulting self-imposed sanctions to the Committee on Infractions. If, as usually occurs, the Committee accepts the report (sometimes with additional sanctions the school and involved coaches find acceptable), then the case is concluded.
The Committee on Infractions hearing path generally occurs when violations are particularly egregious or when the enforcement staff and the school or an involved coach cannot agree about the existence or scope of a violation. The case is then presented for the Committee's consideration at a hearing. When the Committee publishes a finding, either a school or an involved coach can appeal the finding to the Infractions Appeals Committee; however, the grounds for appeal are very narrow. NCAA bylaws do not provide for further appeals from an Infractions Appeals Committee decision. If sanctions are imposed, a school must document its compliance with those sanctions.
NCAA bylaws regarding the “obligations of membership,” the “cooperative principle,” and “unethical conduct” set conduct expectations for schools and coaches during the infractions enforcement process. Failure to meet these expectations can result in increased sanctions, so the enforcement staff possesses significant investigative leverage during the infractions enforcement process, even in the absence of subpoena power. Generally, these bylaws require schools and coaches to affirmatively assist the enforcement staff with the investigation of possible violations, even when such assistance will establish misconduct. An important task of legal counsel during the infractions enforcement process is to help the client meet the association’s investigative conduct expectations and avoid additional sanctions for perceived uncooperativeness.
TYPES OF ASSISTANCE LEGAL COUNSEL CAN PROVIDE
The assistance legal counsel can provide regarding the NCAA infractions enforcement process depends upon whether the client is a school or a coach as well as the phase of the process. Generally, the process can be considered in four phases: (1) proactive, (2) NCAA investigation, (3) Committee on Infractions hearing, and (4) post-hearing.
The proactive phase actually occurs prior to the initiation of the infractions enforcement process. It consists of the period in which a school or coach does not possess information indicating a major violation.
Assistance for Schools
The period in which a school does not possess information indicating a major violation provides an opportunity for legal counsel to help a school proactively reduce its violation risks. Legal counsel can analyze and audit a school’s NCAA compliance procedures, recommend best practices, and educate school administrators and coaches about recent Committee on Infractions decisions and other NCAA compliance developments. Such an approach reduces the likelihood of inadvertent violations; deters intentional violations; increases the likelihood of timely detecting violations; and demonstrates institutional commitment to NCAA compliance, which may mitigate sanctions resulting from violations that occur and reduce the risk that the Committee on Infractions finds “failure to monitor” or “lack of institutional control” by the school.
If a school discovers information suggesting a violation, legal counsel can help the school organize and conduct a preliminary inquiry regarding the existence and severity of the potential violation in a manner that is consistent with enforcement staff procedures and does not prejudice any future investigation the enforcement staff may conduct. If the preliminary inquiry indicates that no violation occurred, the involvement of legal counsel protects the school’s leaders against subsequent charges of poor oversight if later developments demonstrate that a violation actually occurred. If the preliminary inquiry indicates a likely secondary violation, the assistance of outside counsel with conducting the inquiry, drafting a well-written report, and suggesting appropriate self-imposed sanctions increases the chance that the enforcement staff will conclude the case by accepting the school’s report. If the preliminary inquiry indicates a major violation which must be reported to the enforcement staff, the school’s engagement of legal counsel to conduct the inquiry demonstrates a commitment to NCAA compliance, with the benefits noted above. Additionally, by participating in the preliminary inquiry, legal counsel can most effectively advise a school about possible corrective and remedial measures.
Assistance for Coaches
As with schools, the period in which a coach does not possess information indicating a major violation provides the opportunity for legal counsel to help the coach proactively reduce his violation risks. Legal counsel can update the coach and his or her assistants about NCAA compliance developments, monitor the coach’s implementation of enforcement staff suggestions for demonstrating “coach control,” and serve as an additional resource from which the coach can seek NCAA compliance advice. This approach reduces the likelihood of a coaching staff inadvertently violating NCAA bylaws, and it helps a coach demonstrate an effort to “promote an atmosphere of NCAA rules compliance.” Consequently, if a violation still occurs in the coach’s program, the Committee on Infractions will be less likely to find a “lack of coach control” and more likely to mitigate the severity of the sanctions imposed upon the coach and program.
If a coach becomes aware of a potential violation, legal counsel can help the coach properly report information in a manner that meets the coach's obligations under NCAA bylaws and the coach's employment agreement. If the information clearly indicates a secondary violation, legal counsel can help the coach evaluate potential self-imposed penalties and propose those penalties to appropriate school leaders. If the information indicates a potential major violation, legal counsel can advise the coach about how to interact with relevant individuals so as to prevent new violations but not prejudice likely institutional or enforcement staff investigations and not appear to be covering-up existing violations. At this phase of the process, legal counsel can also educate the coach about the investigative process that is likely to occur and discuss best-case and worst-case outcomes.
NCAA Investigation Phase
During the NCAA investigation phase, the enforcement staff investigates and analyzes whether a violation occurred and, if so, the severity of the violation. This phase starts when a school notifies the enforcement staff about a potential major violation, when the enforcement staff decides to independently review a school’s report of a secondary violation, or when the enforcement staff notifies a school about information indicating a potential major violation. Although NCAA bylaws authorize the enforcement staff to investigate a potential violation up to the date of a Committee on Infractions hearing, this phase generally ends when the enforcement staff publishes its Notice of Allegations.
Assistance for Schools
The NCAA investigation phase of a major violation case regularly involves conducting dozens of interviews and reviewing thousands of pages of documents. Even schools with well-resourced athletics departments and in-house legal teams seldom have sufficient on-campus personnel to fully and effectively participate in the investigative process. This is particularly true when the participation of some school administrators must be limited due to their possible involvement in or knowledge of a potential violation or their oversight responsibility for the people or program being investigated. For practical and perception reasons, a school generally benefits from conducting a “joint” or “cooperative” investigation with the enforcement staff. Consequently, legal counsel can greatly assist a school simply by serving as the school’s project-dedicated, primary representative in the investigation.
The NCAA’s expectations regarding a school’s conduct during the infractions enforcement process obligate a school to facilitate enforcement staff interviews with employees, student-athletes, and third parties; to provide academic, financial, phone, and e-mail records as well as other institutional documents; to declare ineligible and withhold from competition student-athletes if information indicates their involvement in a violation; to report additional violations uncovered during the investigation; and to maintain confidentiality about the investigation. Broadly, the role of legal counsel in this phase is to facilitate a thorough investigation that demonstrates the school’s cooperation and to keep senior school leaders appropriately informed within the bounds of the NCAA’s confidentiality requirements.
Beyond merely facilitating enforcement staff interviews, legal counsel can educate school employees and student-athletes who are going to be interviewed about interview procedures, particularly the right to personal legal counsel. During enforcement staff interviews, legal counsel can ask follow-up questions. Legal counsel can suggest additional interviews to the enforcement staff, particularly if those interviews could elicit mitigating information. If the enforcement staff declines to conduct such additional interviews, then legal counsel can independently pursue them. In regard to document production, legal counsel can help a school gather or produce information requested by the enforcement staff and present the material in an organized manner.
If the enforcement staff’s investigation reveals serious flaws in a school’s compliance procedures or serious misconduct by a school’s employees, student-athletes, or boosters, legal counsel can provide objective analysis regarding the prompt implementation of corrective and remedial measures, which may include employment actions, withholding student-athletes from contests, disassociating boosters from the school, and enhancing the school’s compliance procedures. In particular, legal counsel can help a school appropriately balance (i) the need to act decisively to prevent additional violations and to reinforce the importance of NCAA compliance and institutional control versus (ii) the need to comply with the requirements of Due Process, the provisions of applicable employment agreements, and other relevant policies and standards.
Legal counsel should regularly discuss investigative developments and share analysis about those developments with the enforcement staff in order to shape the publication of a Notice of Allegations that accurately reflects the nature and scope of conduct revealed during the investigation. For example, legal counsel can advocate that a violation is secondary rather than major or that a school's compliance oversights demonstrate failure to appropriately monitor an issue but not a lack of institutional control. This role is increasingly important because a permissive charging standard permits the enforcement staff to allege violations which are not strongly supported. In turn, Notice of Allegations contents regarding public school (and even private schools) are increasingly reported by the media and are considered as conclusions or findings by the public because NCAA bylaws prohibit a school from publicly commenting about the merits of the allegations.
Assistance for Coaches
A threshold issues that legal counsel can help a coach analyze during the investigation phase of a major infractions case is the extent to which the coach wants to participate in the process. A coach employed at a NCAA school is required to fully cooperate. Although a coach who is no longer employed at a NCAA school is also expected to cooperate and can face sanctions for non-cooperation, the coach may decide that the burden of participating in the process outweighs likely non-cooperation sanctions.
Even for a coach who fully cooperates in the infractions enforcement process, the coach's involvement in the investigation phase of a major violation case is limited to participating in his own enforcement staff interviews and providing documents requested by the enforcement staff. Therefore, legal counsel's main role is to assist the coach with enforcement staff interviews and document production. Because the enforcement staff does not disclose interview topics prior to an interview, this assistance begins with identifying potential interview topics and exploring the coach's knowledge of those topics. This preparation may involve legal counsel independently gathering information in a manner that does not expose the coach to allegations of interfering with the investigation. During an enforcement staff interview, legal counsel can seek clarification of confusing questions, prompt the coach to provide additional explanatory information, and protect the coach from unnecessarily repetitive or harassing questions. In terms of document requests by the enforcement staff, legal counsel can analyze the reasonableness of the requests and help the coach respond accordingly. For example, if the enforcement staff requests a coach's phone or financial records, it may be appropriate to redact certain information or to allow only in camera inspection.
Similar to legal counsel for a school, a coach's legal counsel should maintain regular contact with the enforcement staff to shape the publication of a Notice of Allegations that accurately reflects the coach's conduct. For example, legal counsel can advocate that a violation is secondary rather than major, that a coach should not be personally named in an allegation even if a violation occurred regarding the coach's program, and that the occurrence of a violation does not warrant a "lack of coach control" allegation. If a coach is still employed at the school being investigated, legal counsel should also maintain regular conduct with top school leaders and the school's legal counsel. Topics which legal counsel can discuss with school representatives include the coach's efforts to cooperate with the investigation, the school and coach's impressions of the investigative information related to the coach and his program, the impact of the investigation upon the coach's continuing employment, and the nature and scope of possible self-imposed sanctions upon the coach and his or her program.
Committee on Infractions Hearing Phase
The Committee on Infractions hearing phase of a major infractions case begins when enforcement staff publishes its Notice of Allegations and ends with the Committee's acceptance of a Summary Disposition report or the conclusion of the Committee hearing. Whether the case is resolved via Summary Disposition or a Committee on Infractions hearing, this period generally lasts approximately five months. In cases in which Summary Disposition is possible, the enforcement staff, the school, and any coach named in the Notice of Allegations produce an agreed-upon report for the Committee. This process typically involves the exchange of several drafts of the report, which is generally twenty to one-hundred pages long depending upon the circumstances of the case. If Summary Disposition is not viable, the school and any named coach have ninety days to respond in writing to the Notice of Allegations. Then, the enforcement staff has four to six weeks to draft a Case Summary, which is essentially the enforcement staff's response to the school and coach's responses. Upon receipt of the Case Summary, the school and coach have approximately a week to submit additional information to the Committee, all of which must be submitted at least ten days prior to the Committee hearing. Most Committee hearing are completed in a single day, although occasionally a hearing extends into a second day.
Assistance for Schools
The threshold issue that legal counsel can help a school analyze during the Committee hearing phase of a major infractions case is whether Summary Disposition is viable. This initially involves determining whether the case is so serious that the Committee will require a hearing. If that bridge is crossed, then legal counsel can help the school determine whether it is willing to stipulate to a description of violations to which both the enforcement staff and any named coach will also agree. In order to help a school assess these issues, legal counsel can assist the school with the time consuming process of analyzing the full record of the case in light of NCAA bylaws, legislative interpretations, and prior Committee decisions. If Summary Disposition is possible, then legal counsel can lead the school's drafting and editing work regarding the Summary Disposition report.
When Summary Disposition is not possible, a school's obligation to submit a written response to each allegation in the Notice of Allegations necessitates the time-consuming process of analyzing the full record of the case, researching applicable NCAA bylaws and precedents, drafting an explanatory narrative regarding every alleged violation; and gathering and collating supporting exhibits. A school's engagement of legal counsel can substantially alleviate a school's logistical and resource burdens related to responding to the Notice of Allegations. Even before the actual drafting process begins, legal counsel can help the school develop a response strategy which includes deciding which, if any, allegations to dispute as well as what corrective and disciplinary measures to self-impose prior to the hearing, including employment action.
When the school receives the enforcement staff's Case Summary, legal counsel can help the school review the document for factual accuracy. In regard to allegations which the school's response disputed or provided mitigating information, legal counsel can help the school analyze the strengths and weaknesses of the enforcement staff's arguments set forth in the Case Summary. If the Case Summary contains factual inaccuracies or weakly supported arguments, legal counsel can help the school decide whether to address those concerns by submitting a supplemental response to the Committee. If a supplemental response is appropriate, legal counsel can help the school promptly draft the document within the brief period allowed for submitting additional information.
Prior to the Committee on Infractions hearing, legal counsel can prepare the school's representatives for the hearing experience. This preparation can include explaining the hearing process and reviewing the investigative record regarding each allegation for the people who will attend the hearing, helping the school's president draft opening and closing statements, and even staging a mock hearing for practice purposes.
At the hearing itself, legal counsel can serve as the primary presenter of the school's position regarding each allegation and the primary responder on behalf of the school to questions from the Committee. If specific issues can be best addressed by particular school representatives like the compliance director or the athletics director, legal counsel can coordinate the school's presentation to be sure that the Committee hears from the representative best suited to address each issue.
Assistance for Coaches
As with a school, the threshold issue that legal counsel can help a coach analyze during the Committee hearing phase is whether Summary Disposition is desirable. If the coach and the school under investigation still have a viable employment relationship, it is often in the coach's best interest to adopt the school's position regarding Summary Disposition, even if the coach does not fully agree with the description of violations that the school is willing to accept. If Summary Disposition is pursued, legal counsel can draft the coach's portion of the Summary Disposition report to the extent anything beyond what the school submits is required.
When Summary Disposition is not possible, a coach is expected to submit a written response to each allegation in the Notice of Allegations that names the coach. Again, the nature of the coach's response may depend upon whether the coach is still employed by the school under investigation. If so, legal counsel can assist the coach by working with the school to craft responses that align as closely as possible. However, even in this circumstance, the process of analyzing the case file, conducting NCAA research, discussing information with the school's representatives, and drafting an explanatory narrative regarding each relevant allegation is extremely time-consuming and beyond the practical ability of most coaches to effectively accomplish without the assistance of legal counsel. If the coach is no longer employed by the school under investigation, it becomes even more important for a coach to engage legal counsel to help respond to the Notice of Allegations, because the coach's former school is likely to place as much blame as possible for any violation on the coach.
As with a school, when the enforcement staff's Case Summary is published, legal counsel can help a coach review the document for factual accuracy, analyze the strengths and weaknesses of the enforcement staff's assertions about the coach's conduct, decide whether the coach should submit a supplemental response to the Committee, and write the coach's supplemental response if needed.
Prior to the Committee on Infractions hearing, legal counsel can prepare a coach for the hearing by explaining the hearing process, reviewing the investigative record with the coach, helping the coach draft opening and closing statements, and vigorously questioning the coach during mock hearing practice sessions. At the hearing itself, legal counsel can advocate for the coach by presenting the coach's position regarding relevant allegations. Legal counsel can also help the coach provide on-point responses to Committee questions, and as necessary, help the coach keep his emotions in check.
After the Committee on Infractions hearing, the Committee usually takes ten to twelve weeks to publish its finding. Under current NCAA procedures, schools and coaches receive only twenty-four hour notice that the finding will be released and do not actually learn the result of the Committee's deliberations until the day on which the finding is released. The Committee's finding includes a description of the violations that the Committee determined occurred, a classification of the violations as secondary or major, and a list of sanctions imposed upon the school and any coach found responsible for a violation. Upon the publication of the Committee's finding, a school or coach has only fifteen days in which to file notice of intent to appeal any part of the finding. The appealing party can agree to an appeal based upon written submissions only or can request an appeal hearing. In either case, once the Infractions Appeals Committee acknowledges receipt of the notice of intent to appeal, the appealing party has only one month to submit its appeal. Then, similar to the Committee on Infractions hearing process, the Committee has approximately one month to submit a document supporting its finding, and the appealing party has a brief final opportunity to submit additional information before the Infractions Appeals Committee hearing.
Assistance for Schools
When a school learns the results of the Committee's deliberations, the school has only a few hours to analyze the finding and determine whether and, if so, how to publicly respond when the finding is published. At this point, legal counsel can assist the school by analyzing the tone of the Committee's language and the severity of the sanctions imposed by the Committee and placing the Committee's conclusions in context compared to other Committee findings.
Given the short window for filing a notice of intent to appeal and then drafting the actual appeal document, legal counsel can help promptly research and analyze the school's chances for successfully appealing any portion of the Committee's finding. If the school seems inclined to pursue an appeal, legal counsel can begin reviewing the record of the Committee hearing and drafting the school's appellate argument even before the school files its notice of intent to appeal. As in the Committee on Infractions hearing phase, when the school receives the Committee's defense of its finding, legal counsel can help the school review the document for factual accuracy and analyze the strengths and weaknesses of the Committee's arguments. Then, legal counsel can help the school promptly submit its final appellate document to the Infractions Appeals Committee. If the appeal proceeds to a hearing, then legal counsel can prepare the school's representatives for the hearing and represent the school at the hearing.
If a school decides not to appeal a Committee on Infractions finding, or if relief from sanctions is not granted on appeal, NCAA bylaws obligate the school to comply with the Committee's sanctions and to periodically report the school's compliance to the Committee. Legal counsel can assist the school with both of these requirements by periodically auditing the school's compliance with the sanctions and drafting follow-up reports for submission to the Committee.
The conclusion of any appeal activity in the post-hearing phase of the infractions enforcement process essentially brings the process full-circle and once again provides an opportunity for legal counsel to help a school proactively reduce its future violation risks.
Assistance for Coaches
Like a school, a coach has only a few hours between learning the results of the Committee's deliberations and being confronted by the media about the Committee's finding. If the coach is employed at a NCAA school when the finding is published, the school can help the coach make an appropriate public statement. However, if the coach is not currently employed at a school, legal counsel can help the coach analyze the Committee's finding and, if the coach desires, distribute a statement about the finding from the coach to the media.
Legal counsel can also help the coach make a timely decision about whether to appeal any portion of the Committee's finding. Pursuant to NCAA bylaws, a coach's pursuit of an appeal stays the implementation of any sanction appealed by the coach, so an unsuccessful appeal effectively extends the duration of the sanction by the length of time it takes to process the appeal. As such, thorough and objective analysis about the prospect for a successful appeal is particularly valuable to a coach who is out of work when the Committee's finding is published. If a coach decides to appeal the Committee's finding, legal counsel can assist the coach by researching and writing the appeal, preparing the coach for the appellate hearing, and advocating for the coach at the hearing in much the same manner as occurs in the Committee on Infractions hearing phase.
A coach who is sanctioned by the Committee on Infractions may face a number of employment related issues in which the assistance of legal counsel can be helpful. Primarily, a coach may face a situation in which a school attempts to utilize a Committee finding to justify reassigning the coach or terminating the coach's employment for cause. Furthermore, a coach who has been sanctioned by the Committee is almost certain to encounter unfavorable proposed terms regarding termination for cause during future employment negotiations. If a coach is fortunate enough to remain employed at a NCAA school during the period of the Committee's sanctions, legal counsel can help the coach by auditing and documenting the coach's compliance with the sanctions, which once again provides an opportunity for legal counsel to help the coach proactively reduce his future violation risks.
As with other legal matters, a school or coach's retention of legal counsel regarding the NCAA infractions enforcement process neither prevents the occurrence of a violation nor guarantees that an investigation into a potential violation will not result in significant negative consequences for the school or coach. However, there are many ways in which legal counsel can assist a school or coach regarding the infractions enforcement process, and the retention of quality legal counsel generally facilitates more efficient and less damaging outcomes for schools and coaches alike. Prudent school leaders and astute coaches recognize the value of assistance from legal counsel in NCAA compliance related matters, which is why fewer and fewer school or coaches attempt to represent themselves in regard to the infractions enforcement process.