By Christian Dennie
The National Collegiate Athletic Association (“NCAA”) enforcement process and decisions rendered by the NCAA Committee on Infractions (“COI”) have been a consistent lightning rod for scrutiny and litigation. In recent years, the public, lawyers, and pundits have heavily chastised the NCAA for the handling of the University of Miami investigation, the Pennsylvania State University Consent Decree, and accusations made by Todd McNair in the University of Southern California investigation that are presently the basis of a lawsuit pending in California. The NCAA has taken steps to address many of the concerns levied by the membership, but has certainly not made drastic changes. This article recommends using neutrals to decide NCAA enforcement and infractions matters.
Arbitration is the preferred tribunal to resolve disputes in the sports industry. Arbitration provides an expedited and confidential process with appointed arbitrators with knowledge of the sports industry and arbitration. Virtually every other professional sports leagues, and amateur bodies, have adopted a form of arbitration to decide disputes. For example, the MLB, NBA, NFL, NHL, USOC, and PGA Tour have all adopted forms of arbitration to decide a myriad of disputes. The NCAA and its membership would gain from adopting arbitration by providing for fundamental fairness, an expedited process, and a limited form of subpoena power provided in Section 7 of the Federal Arbitration Act (“FAA”).
Many have argued the NCAA enforcement process is in much need of repair. Recently, Big 12 Conference commissioner Bob Bowlsby said “[NCAA] [e]nforcement is broken. The infractions committee hasn’t had [an FBS] hearing in almost a year, and I think it’s not an understatement to say cheating pays presently.” The NCAA enforcement system has consistently been labeled slow and lacking the necessary weapons to obtain information. Some have argued the NCAA will only obtain relief by finding sponsors for legislation on Capitol Hill.
The better solution is to adopt arbitration as a part of the agreement between the NCAA and member institutions, conferences, coaches, and student-athletes. The NCAA’s constitution, bylaws, and regulations operate as a contract between the member institutions and conferences and the NCAA and coaches and student-athletes are third-party beneficiaries to such agreement. As a result, the NCAA can simply legislatively adopt arbitration as the trier of fact for all NCAA infractions matters. This approach would remove COI as the body deciding such cases. Like many other arbitration panels, the NCAA would have a body of arbitrators from which to select and could easily use an established forum like the American Arbitration Association to access top arbitrators with industry knowledge. It would be appropriate to appoint a three member panel to decide NCAA enforcement matters.
The detractors of NCAA enforcement loudly indicate NCAA enforcement is ineffective because investigators do not have authority to issue subpoenas to obtain evidence to substantiate claims. Under Section 7 of the FAA, arbitrators are permitted to issue subpoenas to obtain documents and the presence of a witness. Similarly, state laws allow for arbitrators to issue subpoenas. The ability to issue a subpoena would not only provide NCAA investigators with the information needed to substantiate a claim, but would also move cases forward more expeditiously. However, subpoena power should not be taken lightly. In order for the NCAA or another party to the matter to obtain a subpoena, the requesting party would be required to establish the information sought is relevant and cannot be obtained from another source. If there is a dispute regarding the relevancy of such information or that such information is intrusive, the objecting party can seek to quash the subpoena and/or seek an in-camera review where documents and information can be redacted, if necessary. Similarly, a witness would also be afforded the opportunity to seek protection by arguing he/she cannot provide relevant testimony and such request is only made for the purposes of harassment or is abusive.
Creating a system of arbitration conducted by neutrals with industry knowledge will restore the faith in NCAA enforcement by 1) giving greater access to witnesses and information; 2) the ability to rectify “prosecutorial overreaching;” and 3) more expedient resolution of cases. The opportunity to subpoena witnesses and documents will expedite the investigation process, which will be closely monitored by a panel of arbitrators. The goal of arbitration is to advance matters more expeditiously. Arbitrators are more readily available than the athletics administrators and others currently participating on COI. These issues will be pushed to resolution by the panel. Additionally, arbitrators would be permitted to address “prosecutorial overreaching” like that which was alleged to have occurred in the University of Miami case. By having a panel of arbitrators oversee the process, all those involved in an investigation will be forced to respond to a higher body (i.e., the arbitration panel) and must conform to proper standards as reflected in NCAA legislation. Established neutrals will restore fundamental fairness and create a greater public perception of NCAA enforcement.
Christian Dennie is a partner at Barlow Garsek & Simon, LLP in Fort Worth, Texas. He is an attorney, arbitrator, and mediator and focuses his practice on commercial matters and sports law. Christian is also an adjunct professor of sports law at Texas A&M University School of Law and Southern Methodist University. Christian previously worked in the athletics departments at the University of Oklahoma and the University of Missouri. He has been recognized as a top attorney in the area of sports law by Fort Worth Magazine and Super Lawyers.
