Two professors, who recently wrote a book entitled Speaking Truth to Power: Confidential Informants and Police Investigations, have highlighted some of the same issues that NCAA investigators face relying on such witnesses during the investigatory process.
The book, written by criminologists Dean Dabney of Georgia State University and Richard Tewksbury of the University of Louisville, reveals that “the practice, while aiding in investigations and arrests, can also extract huge personal, professional and organizational costs.”
The book goes on to elaborate on the “professional costs center on the reliability—or lack thereof—of an informant’s information, their lack of dependability, and their inability or incompetence at following through on actions and information-gathering. There is also a high probability of deception by informants who provide information.”
Regardless, some legal experts see NCAA member institutions continuing to expand their use of such sources. Why?
“There are several reasons was NCAA schools will move toward using confidential informants when investigating a potential rule violation,” Brian C. Mahoney, a partner at Harris Beach, told the Journal. “First and most important, the NCAA and its members lack the legal authority of a court system. Unlike government investigators, NCAA investigators cannot subpoena witnesses or wield the power of discovery. They also have no authority to charge witnesses with perjury if they suspect dishonesty. Although the enforcement staff can charge student-athletes and individuals employed by an institution with unethical conduct for lying, that option is not available for individuals who fall outside the NCAA’s umbrella. According to reports from NCAA staff, people with intimate knowledge of a violation frequently refuse to talk with investigators, avoid telephone calls or skip planned meetings. The NCAA and its members lack the authority to make witnesses go on record and talk. Offering anonymity to an informant may encourage a reluctant witness to come forward and speak.
Mahoney, however, suggested that using student-athletes as informants creates a bit of an ethical quandary.
“Although this tactic can be very effective in the criminal legal system and may prove productive in the challenging world of NCAA rule compliance, using it in college athletics, in which the informant is likely a young person seems to run counter against the NCAA’s mission of educating young men and women,” he said. “It could fracture unity within an athletics department. NCAA rules simply require a good faith effort to investigate potential wrong doings, the rules do not specify tactics for doing so.”
The Challenge Lies in What the Informant Receives
Linda Van Drie-Andrzjewski, the athletic director at Wilmington University, suggested to the Journal that the biggest issue may be to “what level would you provide benefits to the informants for their assistance and what protections would be in place to ensure that the confidential informants remain confidential.”
She also cautioned that colleges and universities “need to be selective in who they use. Using confidential informants would be helpful to compliance staffs that simply cannot be in multiple places at once. However, again, if a university decides to use these informants, they should go in with a plan ahead of time.”
