*By B. David Ridpath, Ed.D.
Mississippi State University
In the last issue of Sports Litigation Alert, Gary Roberts, Professor of Law at Tulane University, shared his written opinion on the NCAA infractions and enforcement process. That same document was presented in Washington DC to the House Sub-committee on the Constitution on September 14.
I was fortunate to be selected to speak during that same hearing and what follows is a summary of what I said.
My remarks differ from Roberts’ statements in many ways, yet there is some common ground. I am uniquely qualified to be a critic of this process because I have spent several years in intercollegiate and amateur athletics as an athlete, coach, and administrator. My personal expertise on the NCAA enforcement and infractions process revolves around being involved in two major infractions cases at two different universities, along with working for over eight years in NCAA compliance at two NCAA Division I institutions.
My first disagreement with Mr. Roberts is his claim that this process is just slightly broken. In reality, the system IS broken. While many on the NCAA enforcement staff and Committee on Infractions strive to do the right thing, they are fighting a losing battle against the financial and winning realities of college athletics. The insatiable desire to win, generate revenue, and build the best facilities directly competes with trying to enforce a litany of rules and self-policing. Roberts stated in his written statement to the sub-committee, “commercial market realities dictate the priorities and behavioral incentives for those operating within this system.”
This dichotomy forces the Committee on Infractions (COI) and the NCAA enforcement staff to master the art of feigning discipline and sanctioning while eliminating the chance to appeal findings by individuals who are blamed erroneously for violations. The often-used method is one of an institution finding a fall guy. Yet, since it is the institution pointing blame, the COI can wash their hands of it, thus a potentially innocent individual has no standing to appeal this finding. The Committee on Infractions is as complicit in this sleight of hand lest they damage their own opportunities at a piece of the money pie, since most of the COI members are from member institutions. Many of these committee members have been involved in several major infractions cases themselves, yet these self-proclaimed masters of intercollegiate athletic moral authority sit in judgment of others charged with infractions. It is like the old fox guarding the henhouse.
Due to this strange arrangement of trying to protect integrity while generating revenue and winning, institutions will always try to minimize the violations and protect vital interests. These interests include money and highly paid, extremely popular personnel. The blame game starts and it usually ends at the lowest common denominator. Typically, the first person protected and saved in an infractions investigation will be a head coach or highly paid administrator. This is simply a way to efficiently finish the case on the cheap and give the image that the bad guys have been handled properly while the moneymakers are still going strong. Typically, no fall guy will fight back because they are warned that their career will be over if they do. They are told to hang in there and someone will hire them again. The scapegoat, while disappointed and hurt at the betrayal, will be a good soldier so they can one day get back to the seductive game.
I dispute Roberts’s contention that individuals on the COI and NCAA investigators are people acting with integrity and good faith. My experience “in the trenches” of college athletics for 20 years has been the exact opposite. What is advertised as a cooperative and collegial process-could not be more adversarial. The enforcement staff is made up of mostly inexperienced, low paid investigators. Several are thrust in hostile situations with the mantra to vigorously and viciously quash any defense to charges made by the NCAA. Many times institutions just acquiesce to this pressure and put up little or no defense, lest they get blackballed by the investigators for being uncooperative.
Mistakes by the enforcement staff and COI are more numerous than Roberts’ states. This behavior is based on previous relationships, power of those getting investigated, potential vendettas, and quid pro quo. Examples like this add to the dysfunctional nature of the process. The process is not remarkably accurate as Roberts attests. It is barely accurate; because the NCAA has tremendous incentive to pursue false or trumped up charges to protect the aforementioned interests. Since the COI is primarily made up of institutional staff members, the conflict of interest and potential for tampering is too high to ignore and it is ludicrous to think that it has never happened.
Despite disagreements with many of Roberts’ contentions, my recommendations for improvement are similar to his. Government legislation is not necessary to force a change in the NCAA enforcement and infractions process, but it will take pressure from the government to force change. An initial recommendation for change is for Congress to pressure the NCAA to protect people with integrity. In this area, the NCAA has been literally begging for a congressional inquiry for over a decade. Innocent and affected individuals are not going to stand for the process as is.
The enforcement and infractions process is grounded in administrative law, not constitutional law. However, when dealing with institutions, reputations, and careers, constitutional due process must apply or the government must ensure it happens. It is an issue of fundamental fairness guaranteed to all citizens of America. The specter of NCAA investigations can have negative effects on individuals and institutions involved. Therefore, past allegations and proven facts concerning the process, including potential conflicts of interest, use of secret witnesses, manufacturing evidence, and threatening employees of member schools during NCAA investigations and hearings must be abated.
Other recommendations for improvement include creating an independent Committee on Infractions. No one at a member institution should serve on this committee. Conflicts of interest must be monitored closely and eliminated. As Roberts states, volunteers that come solely from the NCAA system are inappropriate. In addition, an independent oversight/ethics board should be created to review processes and assess grievances.
Specifically, this board would govern oversight and training of larger NCAA investigative staff, and respond to complaints of inappropriate behavior, vendettas, and questionable investigative tactics.
From a due process and constitutional law perspective, the use of secret witnesses must stop. Everyone must have a right to face their accuser and cross-examine all witnesses. I agree with Roberts about investigating ways to give the NCAA investigators subpoena power to finally hold people accountable for what they say. Currently, there is no real penalty for lying, especially when an institution wants to protect someone. Also, adopt constitutional rules of evidence and procedures in the true spirit of cooperation. Currently, it is cooperate and acquiesce—or else. If you put up a vigorous defense, an individual or institution is in danger of being sanctioned for not cooperating. All hearings should be public, open to the media, to include disclosure of hearing transcripts. A little “sunshine” will add credibility to what is now nothing more than a cloak and dagger secretive process.
Changes are coming. Any change must include those in power possessing the intestinal fortitude to sanction those who deserve to be sanctioned. Eliminate the commonly accepted practice of “institutional scapegoating” of politically expendable individuals. Subpoena power can release the enforcement staff from relying so much on the institution for information, which may be sanitized and manipulated. If an individual is cited as a corrective action by the institution involved, reform must be enacted allowing that individual(s) appeal rights IF the NCAA accepts the sanction as its own. It must no longer be used as a convenient place for the COI or institution to place a scapegoat to prevent an appeal.
The NCAA cannot perform enforcement procedures on the cheap. The system and the culture need overhaul and funding is available. Overall, I do not share Roberts’ optimism concerning the process. There are many more false positives and wrongful convictions than the NCAA wants to admit. It is time to administer justice in a fair and equitable manner that ensures due process, or the government will get involved.
*Dr. B. David Ridpath, Ed.D. is an Assistant Professor of Sport Management at Mississippi State University and Associate Director of The Drake Group (www.thedrakegroup.org), a consortium of faculty and staff “committed to academic integrity in college sports.” He has served in athletic positions at six institutions over 20 years. He is frequent commentator on intercollegiate athletic reform and has been quoted by many national media outlets and is a published author in several sport management journals.