By Brian P. Kappel, Partner, Lightfoot, Franklin & White LLC
Six NCAA institutions have had their rules infractions cases referred to the IARP, shorthand for the Independent Accountability Resolution Process created as a result of recommendations made by the College Basketball Commission in August 2019. Memphis University was the first in March 2020, followed by North Carolina State University, Kansas University, Louisiana State University, University of Arizona, and the University of Louisville.
None of those cases has been decided, but on April 27, 2021, the NCAA Board of Governors announced that it expects final decisions within the next year. Much will be learned from these decisions about the IARP and whether its promised benefits (speed, thoroughness, independence and finality) will fully materialize, but, until then, institutions should prepare themselves to take a new approach to this “infractions off-ramp,” one that will benefit from a litigator’s touch.
Old school: The NCAA’s traditional enforcement process
In discussing this approach, it is helpful to first understand how the IARP differs from the NCAA’s traditional rules enforcement process and how an institution’s case ends up in the IARP.
A typical infractions case in the traditional enforcement process begins with a Notice of Inquiry followed by an investigation and, if the evidence supports it, the presentation of a Notice of Allegations (NOA). If an NOA is issued, then all parties have an opportunity to respond in writing, and those parties appear before a panel of the Committee on Infractions (COI).
The NCAA enforcement staff, the same group that investigates the case, presents evidence supporting the allegations, and the COI decides whether violations were committed as well as the appropriate penalty. If an institution or involved individual believes that the COI has erred, there is an appellate option to the Infractions Appeals Committee (IAC), a separate body that has the authority to reverse the COI under limited circumstances.
New school: What’s different with the IARP?
The IARP involves a different set of investigators and a different decision-maker. An institution’s case gets referred to the IARP by three possible parties: the institution, the vice-president of the NCAA enforcement staff, or the COI chair. Once any of those parties refers a case, another body called the Infractions Referral Committee (IRC) decides whether it is appropriate for the IARP. A list of factors inform the IRC’s decision, including whether:
- the case involves major policy issues, including NCAA core values and principles of self-governance,
- there are allegations of significant misconduct by the parties, including breaches of confidentiality, and
- the parties have taken an adversarial position throughout the course of the investigation.
If the IRC determines that these factors warrant referral to the IARP, then a new, independent investigator is named to what is called the Complex Case Unit or CCU. Joining the investigator on the CCU is another addition to the traditional infractions process: an independent advocate. The advocate is typically an experienced attorney who has practiced as a litigator. The investigator might also have litigation experience. The last member of the CCU is a representative of the NCAA enforcement staff.
Together, the three CCU team members — the independent investigator, the independent advocate and the enforcement staff representative — review the investigation as it then stands and put together a plan for further investigation. The CCU then implements that plan using interviews, document requests, and other available tools to determine if NCAA rules were violated.
Ultimately, the CCU makes its decision regarding the evidence and presents an NOA to the involved institution and any individuals it believes committed or were involved in or responsible for rules violations. If an NOA had previously been issued while the case was in the traditional infractions process, then the CCU’s NOA may be the same as its predecessor, but the CCU is also empowered to add, delete, substitute or otherwise amend allegations based on its review of the evidence and any new investigative work it performed.
Trial-like hearing, greater penalties, no appeals
Like the traditional infractions process, the institution and involved individuals are permitted to respond to the Notice of Allegations in writing, and the case is then heard by the Independent Resolution Panel (IRP) — a panel of five individuals (with one alternate), all from outside of college athletics who were chosen for their legal expertise and/or knowledge of collegiate sports. Notably, the IARP permits institutions and involved individuals to make procedural and other pre-hearing motions to the IRP, and the IARP procedures also appear to permit the use of in-person evidentiary or witness statements.
The IRP then decides the case and, if appropriate, assigns penalties. There is an important distinction, however: unlike the traditional infractions process, the IRP’s decision is final, and there is no opportunity for appeal. All cases in the IARP are subject to penalties greater than are available to the COI under the traditional infractions process, including substantial postseason bans and indefinite show cause orders.
Prepare a playbook: How institutions should navigate the IARP process
So how do institutions approach this new process? Based on what is now known about how the IARP operates and how it differs from the traditional infractions process, the best bet is with a litigator’s mindset — and almost certainly with the aid of outside counsel with litigation training and experience. This means that institutions whose cases are referred to the IARP should begin preparing those cases like litigators, undertaking a dispassionate examination of the elements of alleged violations compared to the existing evidence to determine if additional work must be done either to prove those allegations to themselves and their supporters or disprove the allegations before the IRP.
Institutions should consider whether to ask the CCU to re-interview certain individuals (or permit their outside counsel to do so) or to interview others for the first time. During those interviews, as litigators know to do during depositions and at trial, institutions should be looking to ask thoughtfully worded, tight questions to elicit clear, simple and quotable answers for use in their NOA responses or other submissions to the IRP.
Beyond interviews, institutions should take a litigator’s mindset to collecting documentary evidence. Although several of the usual tools in the litigator’s toolbox are unavailable in the IARP (for example, subpoenas), litigators know how to doggedly follow paper trails and how to obtain statements, affidavits, letters and other voluntarily produced documents from helpful parties.
Finally, institutions must take advantage of the myriad new opportunities for advocacy throughout the IARP process. This means keeping an open dialogue with the CCU (like litigators often do with opposing counsel), helping the CCU understand how the institution views the evidence in support of or refuting certain allegations and, hopefully, convincing the CCU that the institution’s assessment is correct. When circumstances warrant, it also means making procedural and other motions to the IRP to protect the investigation from improper overreach or exclusionary tactics and to narrow the number of allegations and issues to be decided by the IRP. Institutions may even want to consider whether to bring live witnesses to that hearing to give in-person statements instead of relying on paper alone.
Overall, the IARP “infractions off-ramp” is a potentially concerning development for some, especially in light of the possibility for increased penalties without the option to appeal. But the IARP does open a number of new doors for institutions that have retained litigation-savvy outside counsel (or who are able to use a litigator’s approach), which best positions them for success throughout this new NCAA process.
Brian Kappel is a partner at Lightfoot, Franklin & White LLC in Birmingham, Alabama. As a member of the firm’s NCAA Compliance and Investigations practice team, he counsels institutions, coaches, administrators and student-athletes involved in or affected by NCAA investigations. Before practicing law, Kappel was an Academic All-American baseball player at Princeton University and a Minor League relief pitcher. Email him at firstname.lastname@example.org.