By Mark Jones of Ice Miller
The NCAA is a voluntary association of colleges and universities that governs college athletics competition among its members. NCAA schools agree to abide by NCAA bylaws which address issues such as amateurism, recruiting, financial aid, academic eligibility, and parameters of practice and competition. NCAA bylaws also establish procedures whereby the association enforces compliance with its bylaws. These compliance procedures are generally referred to as the “infractions enforcement process.” For schools involved in the infractions enforcement process, the process can be confusing, labor-intensive, and reputation threatening. Legal counsel can help schools navigate the process and mitigate its negative consequences.
The assistance legal counsel can provide regarding the NCAA infractions enforcement process depends upon the phase of the process. Generally, the process can be considered in four phases: (1) proactive, (2) NCAA investigation, (3) Committee on Infractions hearing, and (4) post-hearing.
Proactive Phase
The proactive phase actually occurs prior to the initiation of the infractions enforcement process. It consists of the period in which a school does not possess information indicating a major violation.
The proactive phase provides an opportunity for legal counsel to help a school proactively reduce its violation risks. Legal counsel can analyze and audit a school’s NCAA compliance procedures, recommend best practices, and educate school administrators and coaches about recent Committee on Infractions decisions and other NCAA compliance developments. Such an approach reduces the likelihood of inadvertent violations; deters intentional violations; increases the likelihood of timely detecting violations; and demonstrates institutional commitment to NCAA compliance, which may mitigate sanctions resulting from violations that occur and reduce the risk that the Committee on Infractions finds “failure to monitor” or “lack of institutional control” by the school.
If a school discovers information suggesting a violation, legal counsel can help the school organize and conduct a preliminary inquiry regarding the existence and severity of the potential violation in a manner that is consistent with enforcement staff procedures and does not prejudice any future investigation the enforcement staff may conduct. If the preliminary inquiry indicates that no violation occurred, the involvement of legal counsel protects the school’s leaders against subsequent charges of poor oversight if later developments demonstrate that a violation actually occurred. If the preliminary inquiry indicates a likely secondary violation, the assistance of outside counsel with conducting the inquiry, drafting a well-written report, and suggesting appropriate self-imposed sanctions increases the chance that the enforcement staff will conclude the case by accepting the school’s report. If the preliminary inquiry indicates a major violation which must be reported to the enforcement staff, the school’s engagement of legal counsel to conduct the inquiry demonstrates a commitment to NCAA compliance, with the benefits noted above. Additionally, by participating in the preliminary inquiry, legal counsel can most effectively advise a school about possible corrective and remedial measures.
NCAA Investigation Phase
During the NCAA investigation phase, the enforcement staff investigates and analyzes whether a violation occurred and, if so, the severity of the violation. Generally, this phase starts when the enforcement staff provides a school with a Notice of Inquiry and ends when the enforcement staff publishes its Notice of Allegations.
The NCAA investigation phase of a major violation case regularly involves conducting dozens of interviews and reviewing thousands of pages of documents. Even schools with well-resourced athletics departments and in-house legal teams seldom have sufficient on-campus personnel to fully and effectively participate in the investigative process. This is particularly true when the participation of some school administrators must be limited due to their possible involvement in or knowledge of a potential violation or their oversight responsibility for the people or program being investigated. For practical and perception reasons, a school generally benefits from conducting a “joint” or “cooperative” investigation with the enforcement staff. Consequently, legal counsel can greatly assist a school simply by serving as the school’s project-dedicated, primary representative in the investigation.
The NCAA’s expectations regarding a school’s conduct during the infractions enforcement process obligate a school to facilitate enforcement staff interviews with employees, student-athletes, and third parties; to provide academic, financial, phone, and e-mail records as well as other institutional documents; to declare ineligible and withhold from competition student-athletes if information indicates their involvement in a violation; to report additional violations uncovered during the investigation; and to maintain confidentiality about the investigation. Broadly, the role of legal counsel in this phase is to facilitate a thorough investigation that demonstrates the school’s cooperation and to keep senior school leaders appropriately informed within the bounds of the NCAA’s confidentiality requirements.
Beyond merely facilitating enforcement staff interviews, legal counsel can educate school employees and student-athletes who are going to be interviewed about interview procedures, particularly the right to personal legal counsel. During enforcement staff interviews, legal counsel can ask follow-up questions. Legal counsel can suggest additional interviews to the enforcement staff, particularly if those interviews could elicit mitigating information. If the enforcement staff declines to conduct such additional interviews, then legal counsel can independently pursue them. In regard to document production, legal counsel can help a school gather or produce information requested by the enforcement staff and present the material in an organized manner.
If the enforcement staff’s investigation reveals serious flaws in a school’s compliance procedures or serious misconduct by a school’s employees, student-athletes, or boosters, legal counsel can provide objective analysis regarding the prompt implementation of corrective and remedial measures, which may include employment actions, withholding student-athletes from contests, disassociating boosters from the school, and enhancing the school’s compliance procedures. In particular, legal counsel can help a school appropriately balance (i) the need to act decisively to prevent additional violations and to reinforce the importance of NCAA compliance and institutional control versus (ii) the need to comply with the requirements of Due Process, the provisions of applicable employment agreements, and other relevant policies and standards.
Legal counsel should regularly discuss investigative developments and share analysis about those developments with the enforcement staff in order to shape the publication of a Notice of Allegations that accurately reflects the nature and scope of conduct revealed during the investigation. For example, legal counsel can advocate that a violation is secondary rather than major or that a school’s compliance oversights demonstrate failure to appropriately monitor an issue but not a lack of institutional control. This role is increasingly important because a permissive charging standard permits the enforcement staff to allege violations which are not strongly supported. In turn, Notice of Allegations contents regarding public school (and even private schools) are increasingly reported by the media and are considered as conclusions or findings by the public because NCAA bylaws prohibit a school from publicly commenting about the merits of the allegations.
Committee on Infractions Hearing Phase
The Committee on Infractions hearing phase of a major infractions case begins when enforcement staff publishes its Notice of Allegations and ends with the Committee’s acceptance of a Summary Disposition report or the conclusion of the Committee hearing. Whether the case is resolved via Summary Disposition or a Committee on Infractions hearing, this period generally lasts approximately five months. In cases in which Summary Disposition is possible, the enforcement staff, the school, and any coach named in the Notice of Allegations produce an agreed-upon report for the Committee. This process typically involves the exchange of several drafts of the report, which is generally twenty to one-hundred pages long depending upon the circumstances of the case. If Summary Disposition is not viable, the school has ninety days to respond in writing to the Notice of Allegations. Then, the enforcement staff has four to six weeks to draft a Case Summary, which is essentially the enforcement staff’s response to the school. Upon receipt of the Case Summary, the school has approximately a week to submit additional information to the Committee, all of which must be submitted at least ten days prior to the Committee hearing. Most Committee hearings are completed in a single day, although occasionally a hearing extends into a second day.
The threshold issue that legal counsel can help a school analyze during the Committee hearing phase of a major infractions case is whether Summary Disposition is viable. This initially involves determining whether the case is so serious that the Committee will require a hearing. If that bridge is crossed, then legal counsel can help the school determine whether it is willing to stipulate to a description of violations to which both the enforcement staff and any named coach will also agree. In order to help a school assess these issues, legal counsel can assist the school with the time consuming process of analyzing the full record of the case in light of NCAA bylaws, legislative interpretations, and prior Committee decisions. If Summary Disposition is possible, then legal counsel can lead the school’s drafting and editing work regarding the Summary Disposition report.
When Summary Disposition is not possible, a school’s obligation to submit a written response to each allegation in the Notice of Allegations necessitates the time-consuming process of analyzing the full record of the case, researching applicable NCAA bylaws and precedents, drafting an explanatory narrative regarding every alleged violation; and gathering and collating supporting exhibits. A school’s engagement of legal counsel can substantially alleviate a school’s logistical and resource burdens related to responding to the Notice of Allegations. Even before the actual drafting process begins, legal counsel can help the school develop a response strategy which includes deciding which, if any, allegations to dispute as well as what corrective and disciplinary measures to self-impose prior to the hearing, including employment action.
When the school receives the enforcement staff’s Case Summary, legal counsel can help the school review the document for factual accuracy. In regard to allegations which the school’s response disputed or provided mitigating information, legal counsel can help the school analyze the strengths and weaknesses of the enforcement staff’s arguments set forth in the Case Summary. If the Case Summary contains factual inaccuracies or weakly supported arguments, legal counsel can help the school decide whether to address those concerns by submitting a supplemental response to the Committee. If a supplemental response is appropriate, legal counsel can help the school promptly draft the document within the brief period allowed for submitting additional information.
Prior to the Committee on Infractions hearing, legal counsel can prepare the school’s representatives for the hearing experience. This preparation can include explaining the hearing process and reviewing the investigative record regarding each allegation for the people who will attend the hearing, helping the school’s president draft opening and closing statements, and even staging a mock hearing for practice purposes.
At the hearing itself, legal counsel can serve as the primary presenter of the school’s position regarding each allegation and the primary responder on behalf of the school to questions from the Committee. If specific issues can be best addressed by particular school representatives like the compliance director or the athletics director, legal counsel can coordinate the school’s presentation to be sure that the Committee hears from the representative best suited to address each issue.
Post-Hearing Phase
After the Committee on Infractions hearing, the Committee usually takes ten to 12 weeks to publish its finding. Upon the publication of the Committee’s finding, a school has only fifteen days in which to file notice of intent to appeal any part of the finding. The appealing party can agree to an appeal based upon written submissions only or can request an appeal hearing. In either case, once the Infractions Appeals Committee acknowledges receipt of the notice of intent to appeal, the appealing party has only one month to submit its appeal. Then, similar to the Committee on Infractions hearing process, the Committee has approximately one month to submit a document supporting its finding, and the appealing party has a brief final opportunity to submit additional information before the Infractions Appeals Committee hearing.
When a school learns the results of the Committee’s deliberations, the school has only a few hours to analyze the finding and determine whether and, if so, how to publicly respond when the finding is published. At this point, legal counsel can assist the school by analyzing the tone of the Committee’s language and the severity of the sanctions imposed by the Committee and placing the Committee’s conclusions in context compared to other Committee findings.
Given the short window for filing a notice of intent to appeal and then drafting the actual appeal document, legal counsel can help promptly research and analyze the school’s chances for successfully appealing any portion of the Committee’s finding. If the school seems inclined to pursue an appeal, legal counsel can begin reviewing the record of the Committee hearing and drafting the school’s appellate argument even before the school files its notice of intent to appeal. As in the Committee on Infractions hearing phase, when the school receives the Committee’s defense of its finding, legal counsel can help the school review the document for factual accuracy and analyze the strengths and weaknesses of the Committee’s arguments. Then, legal counsel can help the school promptly submit its final appellate document to the Infractions Appeals Committee. If the appeal proceeds to a hearing, then legal counsel can prepare the school’s representatives for the hearing and represent the school at the hearing.
If a school decides not to appeal a Committee on Infractions finding, or if relief from sanctions is not granted on appeal, NCAA bylaws obligate the school to comply with the Committee’s sanctions and to periodically report the school’s compliance to the Committee. Legal counsel can assist the school with both of these requirements by periodically auditing the school’s compliance with the sanctions and drafting follow-up reports for submission to the Committee.
The conclusion of any appeal activity in the post-hearing phase of the infractions enforcement process essentially brings the process full-circle and once again provides an opportunity for legal counsel to help a school proactively reduce its future violation risks.
As with other legal matters, a school’s retention of legal counsel neither prevents the occurrence of a NCAA violation nor guarantees that an investigation into a potential violation will not result in significant negative consequences. However, there are many ways in which legal counsel can assist a school regarding the infractions enforcement process, and the retention of quality legal counsel generally facilitates more efficient and less damaging outcomes for schools. Prudent school leaders recognize the value of such assistance, which is why fewer and fewer schools attempt to represent themselves in the infractions enforcement process.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
