By Rachel Moore, of Hackney Publications
Jackson Lewis P.C. attorneys Gregg Clifton, Paul Kelly, and John Long recently addressed the changes in NCAA compliance and legal risk management following the Rice Commission report on the corruption in Division I basketball in the webinar “The NCAA Moving Forward: The Impact of the Rice Commission Report.”
Clifton kicked off the webinar by examining the revisions to NCAA-Bylaw 11.1, what he called a “Head Coach’s Lurking Nightmare.” The bylaw addresses a head coach’s responsibilities for violations in their programs. Clifton described the bylaw as the “specific responsibility of that head coach to promote an atmosphere of compliance and also monitor the activities of the staff and coaches.”
Clifton stated that coaches “don’t appreciate the severity of potential penalties of 11.1 and don’t fully understand how (they) can best minimize their exposure to these penalties.” The “teeth of 11.1” are the penalties from violations, which could lead to a half of a season suspension to a full season suspension, depending on the level of violation and coach involvement, according to Clifton.
However, responsibility falls back onto the head coach to avoid the application of the bylaw by demonstrating personal action was taken. According to Clifton, it’s called “‘head coach control’ and not ‘compliance office control.’” Clifton advocated three ways to rebut sanctions from Bylaw 11.1: communication, monitoring and education, and documentation.
Clifton suggested annual meetings and frequent sessions with staff addressing concerns, expectations, and compliance updates. Additionally, a head coach is encouraged to monitor staff activities regularly and schedule presentations by the compliance office to assistant coaches, staff members, and student-athletes.
“If there is one word you can take away from this webinar, it is the importance of contemporaneous documentation,” advised Clifton.
Documentation of a head coach’s efforts to comply is essential to overcoming Bylaw 11.1’s presumption that the head coach is responsible for the misconduct committed by his or her staff. NCAA enforcement staff explained if it is not documented, then it does not exist. Documentation should cover meetings with athletic directors, compliance officers, assistant coaches, staff members, or student-athletes. Records should also be kept over monitoring, follow-ups, and communication with the compliance office, suggested Clifton.
“Documentation does not take that long and it’s a habit that we are enforcing this year with the coaches that we work with,” said Clifton.
Long followed by expressing his recommendations in a head coach’s contract regarding “no cause” and “for cause” provisions. Coaches more regularly find themselves with issues in respect to “for cause” provisions, as universities must prove reasons for termination. With no definitive definition, “for cause” provisions frequently become problematic.
“‘For cause’ is something that is case sensitive, it will come down to the language in your institution’s contract itself,” according to Long. “You need to make sure that your ‘for cause’ or ‘just cause’ sections have a clear definition of the conduct that constitutes a valid basis to terminate a coach.”
FBI’s Involvement Led NCAA to Act
Kelly noted that the NCAA was moved to act after four assistant basketball coaches were charged with federal fraud and corruption charges late last fall.
This led the Division I Board of Directors to establish the “Independent Commission on College Basketball” (The Rice Commission) for a six-month term. Consisting of 14 members appointed by NCAA President Mark Emmert, the Commission’s report and executive summary was published on April 25.
“The Commission was created to assess the state of collegiate basketball and to recommend transformative changes to address the multiple issues and challenges facing the sport,” according to Kelly.
In short, the commission advised modifications to the structure of the sport and had deep concerns for the state of men’s basketball, with the levels of deception and corruption threatening “the very survival of the college game as we know it,” expressed by the Commission.
The Commission recommended an end to “the one-and-done rule,” allowing athletes to re-enter universities with their eligibility untouched. However, Kelly points out that this would force universities to hold open scholarships into the summer, which is problematic for schools and presents recruiting challenges.
“This rule, of course, isn’t in the complete control of the NCAA, but requires the cooperation of both the NBA and the NBA Players Association, and according to the reports, the earliest this could occur are the drafts of 2020,” said Kelly.
In addition, a recommendation was made to grant more contact between high school and collegiate athletes with certified agents. This would allow athletes and their families to better understand their options, suggested Kelly.
“I suspect this is a good thing, but it is going to depend on the oversight and process that is put in place, as well as the ethics of the agents involved,” said Kelly.
The Rice Commission also recommended an independent enforcement group that would deal with complex cases of violation, although not much different than the one already in place. Additionally, however, they proposed to remove volunteers and appoint individuals to the Committee of Infractions. The report also suggested to create penalties so severe that college programs wouldn’t commit violations, including a minimum five-year postseason ban or complete stripping of NCAA revenue shares.
“They were very critical of the current recruiting landscape, particularly focused upon AAU Basketball and the involvement of major shoe and apparel companies in AAU basketball,” said Kelly.
The Commission called for financial transparency and rigorous criteria to certify events in non-scholastic hoops, not an easy task and somewhat unrealistic according to Kelly. Major sports companies funnel millions of dollars into events and sponsorships intending to create deep-rooted relationships with young elite players as they advance their careers, Kelly said.
The last point was a governing issue with respect to the Board of Governors. The Commission recommended including outside members of the public to provide “objectivity, relevant experience, perspective and wisdom,” according to the report, in hopes of bringing valuable insight in their efforts to restore college basketball.
“The major criticism of the commission’s report is that it fails to deal with the substantial issue that is facing collegiate basketball, and that is the influx of big money into the sport,” acknowledged Kelly.
In terms of action taken by the NCAA in result to the Rice Commission report, Kelly had this to say: “I only know that Don Remy, the general counsel of the NCAA, was quoted in the last couple of days saying that the NCAA, in this instance, is not going to follow legislative calendar, which can stretch out over years, but they are going to accelerate this and are actively working on taking many of the recommendations in the report and putting them into actual legislative proposals before the body this summer for approval and passage.”
