The New NCAA Enforcement Model

By:

Casey C. Kannenberg, Bingham Greenebaum Doll LLP

Introduction

The NCAA Division I Board of Directors (the “Board”) recently voted to overhaul the NCAA enforcement and investigation process, and for attorneys representing coaches, players, institutions, or other involved individuals in NCAA matters, the game is about to change in very significant ways. In October of 2012, the Board—a 13-member group of presidents, athletic directors, commissioners, and other participants—approved a series of significant changes to the NCAA Division I enforcement structure.[1] The changes resulted from a perceived need to: (1) have stiffer and more predictable penalties; (2) have a more open and expedited process; and (3) strive for more shared responsibility in upholding “the values of the NCAA and the integrity of intercollegiate athletics.”[2] The new enforcement structure is expected to be fully implemented by August of 2013.[3]

            The new enforcement structure targets improving the enforcement process in three significant ways. First, a four-tiered penalty structure designed to focus primarily on conduct that seriously undermines and/or threatens the integrity of the NCAA will replace the current two-tier “major/secondary” distinction. Second, the enforcement process will become more open and expedited. Last, the new process will place a greater emphasis on head coach accountability, as well as a shared sense of responsibility to uphold the core values of the NCAA.[4] This article will discuss each of these changes below.

Penalty Structure

            Perhaps the most significant change to the NCAA Division I enforcement process is the implementation of a four-tiered penalty structure that replaces the rigid two-tiered “major/secondary” classification.[5] The new penalty structure allows the NCAA to “more finely differentiate bad behavior” and prevent violators from minimizing conduct that would, under the current model, fall into the “secondary” infraction category.[6] The new tiers include: (1) Level I: Severe Breach of Conduct; (2) Level II: Significant Breach of Conduct; (3) Level III: Breach of Conduct; and (4) Level IV: Incidental Issues.

Level I violations are those that:

seriously undermine or threaten the integrity of the NCAA collegiate model as set forth in the Constitution and bylaws, including any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit.[7]

In contrast, Level II violations:

Provide or are intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage; includes more than a minimal but less than a substantial or extensive impermissible benefit; or involves conduct that may compromise the integrity of the NCAA collegiate model as set forth in the Constitution and bylaws.[8]

“Significant” violations can escalate to “severe” violations “if the violations are much broader and deeper in terms of who is implicated and the kind of behavior those people engaged in to get the result they did.”[9] As an illustration of the distinction between a Level I and Level II infraction, Oregon State President and Chair of the Enforcement Working Group Ed Ray identified a booster providing gifts to a student-athlete as enticement to enroll at a particular school as a severe violation.[10] A significant violation, on the other hand, would be something more like a “systematic breakdown in a school’s eligibility certification allowing multiple student-athletes to compete while ineligible.”[11]

            Level III violations are those that are “isolated or limited in nature, providing no more than a minimal recruiting, competitive or other advantage; and do not include more than a minimal impermissible benefit.”[12] Multiple Level IV violations can collectively constitute a Level III violation.[13] Last, Level IV violations are those that are minor and “are inadvertent and isolated, technical in nature and result in a negligible, if any, competitive advantage.”[14] Level IV infractions will not generally affect eligibility.[15] According to Mr. Ray, under the new regime, institutions, coaches, and other involved individuals can be charged with violations of different tiers within the same infractions case.[16]

            In addition to the foregoing, attorneys representing institutions, coaches, student-athletes, and other involved individuals should be aware of several other changes with respect to the punishment scheme. First, pursuant to newly-adopted Bylaw 19.9.1, if the enforcement staff concludes that there is sufficient information for the Committee on Infractions (“COI”) to determine that a violation has occurred, it will issue a Notice of Allegations to the Institution and any involved individuals that sets forth the “possible level of each violation.”[17]

            Second, in addition to determining the level of violation, the COI hearing panel will also determine whether there are any aggravating or mitigating circumstances that may affect the ultimate penalty issued to the offender.[18] The panel will weigh the factors and determine whether standard penalties should apply, or whether the case should be subject to higher or lower ranges of penalties based on the existence of aggravating or mitigating circumstances.[19] There are 14 aggravating factors set forth in Proposed Bylaw 19.11.3, including multiple Level I violations, a history of violations, lack of institutional control, obstruction, and others (including a catch-all “other facts warranting a higher penalty range” factor).[20]

            Third, the potential penalties that institutions, coaches, and other involved individuals may face have increased in scope and severity under the new model. The Board determined that the current structure did not “offer enough of a deterrent for individuals who believe that the anticipated benefits and advantages resulting from premeditated rules violations outweigh the severity of punishment.”[21] With respect to scope, the Proposed Bylaws set forth seven distinct categories of “core penalties” for Level I and II violations, which include: (1) competition penalties; (2) financial penalties; (3) scholarship reductions; (4) show-cause orders; (5) head coach restrictions; (6) recruiting restrictions; and (7) probation.[22] The hearing panel is permitted to depart from the core penalties, provided that the panel explains the basis of its decision.[23]

            With respect to the severity of the penalties, the penalty ranges permit far greater penalties than were imposed in major infractions cases under the current regime. For instance, a competition penalty where aggravating circumstances are found could result in a 2–4 year post-season ban. [24] Or, for example, a recruiting penalty with aggravating circumstances could include a 25–50% reduction in visits, off-campus activity, and communication.[25] Thus, it is vital that attorneys representing clients in NCAA matters become familiar with the new enforcement model and be able to explain the new, and greater, stakes at hand.

Increased Efficiencies

            A second result of the new enforcement model is a more open, efficient, and streamlined process. Member institutions had expressed very legitimate concerns about the amount of time it took for the investigatory and COI processes to run their course. The new model proposes an increase in COI members to up to 24, and creates multiple panels from the pool of 24 that can adjudicate cases more frequently.[26] In addition, whereas the COI meets only five times annually under the current model, the new regime anticipates that hearings for Level I cases will be scheduled approximately 10 times per year, with Level II cases scheduled monthly if necessary.[27] Accordingly, attorneys representing clients in NCAA cases can expect the process to take much less time from start to finish under the new model. Indeed, Mr. Ray has indicated that the time to process “less-complicated cases could be cut in half.”[28]

            Another feature of the new model—one that may drastically reduce client costs associated with NCAA representation—is that in Level I cases where the issues are small in number and are uncomplicated, the parties may request to appear before the hearing panel by videoconference or other mode of distance communication.[29] Level II cases will presumptively be conducted by telephone or videoconference unless the panel requests an in-person hearing or the parties agree to submit the case on the pleadings.[30] Last, unlike under the present enforcement model, the enforcement staff must now issue its Notice of Inquiry to the Institution prior to conducting an inquiry on the Institution’s campus.[31] Under the present model, Notices of Inquiry were rarely issued prior to the conclusion of at least one round of on-campus interviews.[32]

Accountability and Shared Responsibility

            Last, the new enforcement structure enhances the head coach’s responsibility and accountability, and potential consequences, for head coaches who fail to direct their coaching staffs and student-athletes to abide by the NCAA Bylaws. This new emphasis rests on the presumption that “the coach is responsible for the program and should counsel assistants about what is appropriate and have processes in place to monitor whether the assistant coaches are doing what they are assigned to do in an appropriate way.”[33] Newly-revised Bylaw 11.1.2.1 now provides that “[a]n institution’s head coach is presumed to be responsible for the actions of all assistant coaches and other administrators who report, directly or indirectly to the head coach.”[34] The Bylaw makes it more difficult for a head coach to avoid accountability even if the head coach was not personally involved in, or aware of, the violation.[35] As a consequence, if any member of a coach’s staff commits an infraction, he or she will be subject to significant suspensions.[36]

The new model also emphasizes a shared culture among all participants, from coaches and institutional leadership to the compliance community, to “assume a shared responsibility for upholding the values of intercollegiate athletics.”[37] The concept assumes that everyone involved in the process has to be a part of the solution—not just the institution and coaches, but also those in enforcement. Mechanisms to be implemented that further the Enforcement Working Group’s vision of shared responsibility included having compliance personnel report outside of athletics, having more regular audits of athletics operations, and educational programs to assist the NCAA membership in implanting the new structure.

In short, the newly-proposed enforcement model contains many new mechanisms and procedures that may drastically alter representation of clients in NCAA matters. The new penalty structure, with its harsher and broader penalties, may increase the importance of the role of counsel in NCAA matters. The efficiency mechanisms, such as the increase in the number of COI members, additional hearings, and videoconference options, will help to ensure that cases will be managed and concluded expeditiously and with less cost to the client. In addition, the increased responsibility of head coaches in athletic programs provides a new and substantial hurdle to overcome. Thus, it is incumbent upon attorneys who represent clients in NCAA cases to become familiar with the changes to the Bylaws in order to provide effective representation in this new era of NCAA enforcement.


[1] Carrie McCaw, Mark Jones & Stuart Brown, Note: New NCAA Division I Enforcement Model, Ice Miller LLP, Collegiate Sports Practice (Dec. 2012) [hereinafter Ice Miller Article], available at http://www.icemiller.com/publication_detail/id/1987/index.aspx.

[2] Q&A with Oregon State President Ed Ray, Nat’l Collegiate Athletic Ass’n, https://www.ncaa.org/wps/wcm/connect/public/ncaa/resources/latest+news/2012/october/qa+with+oregon+state+president+ed+ray (last visited Jan. 31, 2013) [hereinafter Ray Q&A].

[3] Ice Miller Article, supra note 1.

[4] Board Adopts Tougher, More Efficient Enforcement Program, Nat’l Collegiate Athletic Ass’n, https://www.ncaa.org/wps/wcm/connect/public/ncaa/resources/latest+news/2012/october/board+adopts+tougher+more+efficient+enforcement+program (last visited Jan. 31, 2013) [hereinafter NCAA Adopts New Enforcement Program]

[5] Nicole Auerbach and Dan Wolken, NCAA Approves Changes in Infractions Enforcement, USAToday.com (Oct. 30, 2012, 3:45 PM) (hereinafter Auerbach & Wolken], http://www.usatoday.com/story/sports/college/2012/10/30/ncaa-enforcement-infractions-new-structure-penalties-mark-emmert/1668621/.

[6] Ray Q&A, supra note 2.

[7] NCAA Adopts New Enforcement Program, supra note 4.

[8] Id.

[9] Ray Q&A, supra note 2.

[10] Id.

[11] Id.

[12] NCAA Adopts New Enforcement Program, supra note 4.

[13] Id.

[14] Id.

[15] Id. It must also be observed that Level IV may be revised or eliminated pending the outcome of the Rules Working Group’s efforts to streamline the NCAA bylaws. Id.

[16] Auerbach & Wolken, supra note 5.

[17] Proposed Bylaw 19.9.1, Nat’l Collegiate Athletic Ass’n, http://www.ncaa.org/wps/wcm/connect/public/ncaa/pdfs/2012/ewg+bylaw+19 (last visited Jan. 31, 2013) [hereinafter NCAA Proposed Bylaws]

[18] Id. Proposed Bylaw 19.11.2.

[19] Id.

[20] Id. Proposed Bylaw 19.11.3;  see also Ice Miller Article, supra note 1.

[21] NCAA Adopts New Enforcement Program, supra note 4.

[22] NCAA Propose Bylaws, Proposed Bylaw 19.11.5, supra note 17. In addition to the “core penalties,” Proposed Bylaw 19.11.7 sets forth additional penalties that the hearing panel may prescribe.

[23] Id. Proposed Bylaw 19.11.6.

[24] Ice Miller Article, supra note 1.

[25] Id.

[26] NCAA Adopts New Enforcement Program, supra note 4.

[27] Id.

[28] Id.

[29] NCAA Proposed Bylaws, Proposed Bylaw 19.9.7, supra note 17.

[30] Id.

[31] Id. Proposed Bylaw 19.7.3.

[32] Ice Miller Article, supra note 1.

[33] Ray Q&A, supra note 2.

[34] Bylaw 11.1.2.1, Nat’l Collegiate Athletic Ass’n, http://www.ncaa.org/wps/wcm/connect/public/ncaa/pdfs/2012/ewg+bylaw+11 (last visited Jan.31, 2013).

[35] Ice Miller Article, supra note 1.

[36] Id.

[37] NCAA Adopts New Enforcement Program, supra note 4.

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