By Gary R. Roberts
Earlier this month, a Congressional hearing was conducted in Washington, D.C., that reviewed the NCAA’s investigative procedures, specifically due process in the Association’s enforcement proceedings. I was scheduled to testify until Hurricane Ivan interfered. Had I done so, below is the jist of what I would have said.
Focusing just on the NCAA’s enforcement process, I would not recommend that Congress consider legislation imposing due-process requirements, either generally or specifically, on the NCAA. Turning over the regulation of the NCAA enforcement process to courts that are unfamiliar with the peculiar culture of Division I athletics, courts that invariably are located in the very communities in which passions in any particular case will run the highest, would serve only to undermine the NCAA’s ability to enforce its rules and maintain some semblance of conformity with the values and mission of college sports. It almost certainly would greatly increase the number of rules violators who are able to escape detection and penalty while not decreasing the number of innocent institutions and individuals who are wrongfully accused and punished (which is very small in the first place).
While there are those who criticize the NCAA’s enforcement process for being unfair or for violating some traditional sense of due process or other fundamental rights of the “accused,” I do not share that general criticism. There are indeed many specific procedures employed (or not) today during the course of an NCAA infractions case that for many make the process at least appear, if not actually be, less than “fair,” but in the end there is no evidence to suggest that the NCAA’s enforcement system is fundamentally flawed or makes major mistakes.
Wrongful “convictions” are extremely rare and the penalties ultimately assessed are remarkably predictable and consistent. In Division I-A football and Division I men’s basketball, the commercial incentives and opportunities to cheat are enormous, the likelihood of detection is slight, and proving violations can be quite difficult. To impose judicially enforceable due process or other strict procedural requirements on the enforcement staff or the Committee on Infractions as it is constituted today would be likely only to diminish the committee’s ability to detect, “convict” and penalize violations that if allowed to become widespread and unpunished could undermine the entire structure of intercollegiate athletics.
Furthermore, creating such a legal obligation would give all those found guilty of rules violations a guaranteed avenue of further appeal to the courts, which would impose both time and financial costs on the NCAA, undermine the effectiveness of its enforcement system, and further burden public courts that already are strained. If reducing the number of frivolous lawsuits is desirable, this would not achieve it.
Meaningful positive reform of the enforcement process would require much more than simply imposing “due process” or other simple-sounding requirements on the NCAA. But the NCAA could and should be pressured to make a substantially increased investment of resources in its enforcement process.
First, the NCAA should seek a larger experienced investigative staff more effectively to detect, to pursue and to prove rules violations. Were there to be a substantially larger, better paid, and more stable professional staff of experienced investigators, the likelihood of detecting violations would increase, the confidence of everyone in the thoroughness and reliability of investigations would be greater, and the need to rely on informers would be greatly diminished.
Second, the NCAA should establish in Division I a paid professional administrative “court” to replace the all-volunteer Committee on Infractions and Infractions Appeals Committee so that properly trained and experienced jurists could devote the necessary time, skill, energy and attention to judging every case thoroughly and fairly.
These two crucial committees are really adjudicatory “courts,” not “committees” in any normal sense of that word, and staffing them with volunteers who come solely from within the NCAA system is not appropriate. Because the members of the Infractions Committee have limited amounts of time they can devote to this “volunteer” activity, hearings must be streamlined and cut shorter than they need to be or should be. And because committee members are not trained or experienced adjudicators, implementing more complex procedural processes would be difficult for them to manage.
There is no good reason why witnesses, especially crucial witnesses, who are willing to attend and testify at a hearing should be prevented from doing so, as they are now, other than that the proceedings would become longer and more complicated, taxing both the time and judicial skills of the volunteer judges. Other procedures employed during hearings seem designed solely to create efficiency, not a better result or more confidence in the fairness of the process, and could be improved if the “judges” were paid, experienced, properly trained and available for however long and whatever was required. While I am unaware of any current or former member of either committee who has ever acted with any but the highest degree of integrity and good faith, this is not their primary job or even an important part of their professional careers. As the old saying goes, you get what you pay for.
One final recommendation I would make is rather radical, but compelling. I believe Congress should fully explore and structure a mechanism for the NCAA enforcement staff to obtain search warrants and subpoenas from federal courts, which would enable it to obtain evidence and compel testimony from reluctant or unwilling individuals under penalty of perjury. Also, if witnesses could be compelled to appear and testify under oath before the Committee on Infractions, many of the impediments to providing institutions and involved individuals with greater procedural rights and protections would be greatly diminished since witnesses would not have to be coddled and cajoled with promises of being insulated from exposure or cross-examination.
If, as the fact that a Congressional hearing was held suggests, NCAA enforcement action can have substantial consequences that economically and psychologically affect a large segment of the general public, then public policy would be furthered by providing these basic law-enforcement tools to those who are entrusted with enforcing NCAA rules.
Armed with such tools, policed by a large and well-paid investigative staff, and heard by a “court” of properly trained professional “judges,” there is every reason to believe that the NCAA enforcement process would be even more effective than it currently is at detecting and penalizing violations of its rules while maintaining an eminently fair and just (albeit inevitably imperfect) process.
Gary R. Roberts, deputy-dean of the Tulane Law School, is Tulane University’s faculty athletics representative and the director of Tulane’s Sports Law Program.