Congressmen Introduce NCAA Accountability Act, Sports Lawyers Weigh In

Nov 5, 2021

Earlier this week, U.S. Reps. Burgess Owens (UT-04), David Kustoff (TN-08), and Josh Harder (CA-10) introduced the bipartisan NCAA Accountability Act “to establish due process protections for universities and individuals under investigation by the NCAA for rule infractions.”

“The NCAA has long wielded unchecked and unfair disciplinary power over America’s student-athletes, coaches, and universities,” said Rep. Owens. “The NCAA Accountability Act is a commonsense charge to level the playing field by eliminating favoritism and bias in college athletics through increased transparency in rule enforcement and due process protections.”

What follows are some of the core points in the Act.

Due Process:

  • Requires the NCAA to provide its member universities with fair notice regarding enforcement proceedings. 
  • Requires the NCAA to complete any investigation no later than one year after it begins. 
  • Establishes a two-year statute of limitations. 
  • Prohibits information from confidential sources from being offered into the NCAA’s enforcement decisions. 
  • Prohibits the NCAA from publicly disclosing information relating to an ongoing investigation until formal charges are filed. 

Fairness, Consistency, Accountability:

  • Provides member universities the right to resolve disputes (over sanctions for bylaw infractions) with the NCAA through arbitration. The 3-person arbitration panel will provide an independent, unbiased review and legally binding decision. 
  • Requires the NCAA to conduct its enforcement proceedings and investigations in a fair and consistent manner. The penalties issued against member institutions for bylaw infractions shall be equitable with respect to the severity of the infraction and the institution’s history of infractions. 
  • Directs the NCAA to submit an annual report to the DOJ summarizing its enforcement proceedings. The NCAA must also submit separate reports to each state’s Attorney General summarizing its interactions with member universities headquartered in their respective states. 

Enforcement:

  • Directs the DOJ to establish supervisory and investigatory procedures to determine the NCAA’s compliance with this bill. 
  • Authorizes the DOJ, through an administrative law judge, to fine the NCAA or individuals on staff up to $15,000,000 for violating the provisions of this bill. 
  • Authorizes the DOJ to order the permanent removal of any member on the NCAA’s Board of Governors.

Richard Karcher, a sports law professor at Eastern Michigan University and an expert on NCAA compliance issues, offered his take on the Act:

“Some of the provisions in this bill seem excessive and/or overly burdensome. An expressly stated goal of this bill is to provide protection for college athletes, but these proposed changes to the enforcement process would not have a huge impact on college athletes.

     “College athletes need due process, transparency and fairness protections, especially the independent arbitration provision, in the reinstatement process because that’s the process used to determine their eligibility.”

Gregg Clifton, who heads the sports law practice at Jackson Lewis, also shared the following insights:

“Among the changes proposed in the proposed legislation is a new requirement that the NCAA complete an investigation within one year of its introduction, as well as the introduction of a new statute of limitations that would prevent the NCAA from penalizing anyone for a violation that occurred more than two years before.

     “The bill would also drastically revise the existing appeals process and authorize the accused to have the right to resolve disputes through the use of an independent 3 person arbitration panel, require the NCAA to submit annual reports on the status of infractions cases to the Department of Justice (DOJ) as well as submitting separate reports to the Attorney General of each state summarizing its interactions with NCAA member schools locate within that state.

     “The legislation would also authorize the DOJ to remove any member of the NCAA’s Board of Governors and fine the NCAA up to $15 million for failure to follow the regulations as required by the legislation. It would also prevent “confidential sources” from being used by the NCAA as a basis for any of its findings in the enforcement process and limit the ability of the NCAA from publicly disclosing regarding an ongoing investigation until formal charges are filed.”

The Impetus for the Act

Clifton also noted what he believed was the impetus for the Act.

“A little more than two years ago James Wiseman was the University of Memphis’ prize recruit who was supposed to lead that school back to the Final Four,” said Clifton. “Now, following his very limited college career that was plagued by allegations of NCAA rules violations and an NCAA declaration of ineligibility for 12 games, his name may soon be forever tied to an historic piece of federal legislation, The NCAA Accountability Act of 2021, rather than his exploits on the basketball court.

     “The initial challenge to Wiseman’s eligibility arose after the NCAA declared current basketball Coach Penny Hardaway a lifetime University of Memphis athletics booster because he had previously donated to the University. As a result, Hardaway’s providing $11,500 to Wiseman’s mother to cover the family’s moving expenses to Memphis, at a time when Hardaway was not employed by the University of Memphis or any other NCAA institution, was deemed to be a violation of NCAA bylaws.

     “Despite securing a state court injunction allowing him to play, Wiseman later dropped his legal action and the NCAA handed him a 12-game suspension. Ultimately, Wiseman decided to withdraw from the university and wait for the NBA draft the following spring. Although no longer enrolled, the NCAA subsequently asserted rules violations against the university for honoring the state court injunction and allowing Wiseman to play in three games. That NCAA case is still pending. The case is believed to be the motivation for three members of Congress to introduce The NCAA Accountability Act.”

Thoughts from other Congressmen Sponsoring the Act

Rep. Kustoff: “The NCAA’s infractions process is systemically flawed. The NCAA writes the rules, enforces the rules, and punishes universities at will. Essentially, the NCAA acts as the prosecutor, judge, jury, and executioner over college athletics. This unchecked authority and exploitative behavior has ruined careers, harmed the U.S. education system, and caused great economic damage to local communities. The NCAA offers its members little due process protections. Its rules are irregularly enforced, and its investigations lack established procedures. Further, the NCAA punishes universities inconsistently and unpredictably. My bill, the NCAA Accountability Act, provides protection for universities and student-athletes in the form of due process, transparency, and fairness during enforcement proceedings. I look forward to the quick passage of this important bill.”

Rep. Harder: “Our Central Valley student-athletes compete at the highest level of college sports and make our whole community proud. This bill will do right by them, their coaches, and their universities. It’s time we deliver them the protections they deserve.” 

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