(Editor’s Note: Gene A. Marsh is the James M Kidd Professor of Law at the University of Alabama School of Law. After retiring from the NCAA Committee on Infractions, Marsh penned the following essay – A Call for Dissent and Further Independence in the NCAA Infractions Process. Exclusively reprinted below is the conclusion to his essay, which recommends, among other things, that the Committee embrace more members, who are not affiliated with the NCAA or its member institutions.)
In my nine-year span of service, the Committee on Infractions has processed over 100 major cases, either through a hearing or through the summary disposition process. Through service on the Committee and other roles in college athletics, I have experienced the NCAA infractions process from nearly every side. I come away from this experience impressed by most of the people I have dealt with at the NCAA and at institutions across the country. The positives far outweigh the negatives. The dedication and character of most people involved in college athletics, especially the student-athletes, provide a perfect tonic for some of the negatives that surround college athletics today.
The Committee on Infractions is comprised of ten members, eight of whom deliberate and vote on cases. In my time on the Committee, only two of the eight deliberative members have been individuals who were not affiliated with collegiate institutions or conferences. My recommendation is to increase the seats filled by these public members from two to four. Public members are typically retired judges. Their judicial experience and independence from the NCAA make them particularly valuable, both in their substantive work in infractions hearings and deliberations, but also in how the public and membership perceive the infractions process. The substantive work of the Committee and public confidence in the system would be improved through additional involvement from public members.
My second recommendation is for Committee on Infractions’ decisions to incorporate dissenting opinions when Committee members differ. The current practice of consensus decisions that paper over differences does not reflect the reality of how Committee members analyze and decide some cases.
Dissenting opinions in NCAA infractions cases would be infrequent. Many infractions cases do not involve factual disputes and in many matters, the only issue up for discussion is the penalties. But the current system, where differences of opinion are not reported and are lost in the process, belies the reality that eight individuals are not of one mind in some important cases. Dissenting opinions can help to temper and shape majority positions. Dissenting opinions also offer hopes to the NCAA membership and the public that their skepticism regarding some NCAA bylaws and the infractions process is being weighed , considered, and in some cases, accepted. Implementing a systems where serious differences of opinion are made transparent would make the NCAA infractions process better and result in more confidence in the system.
