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The NCAA Accountability Act of 2021 and the Race to Overhaul the NCAA Infractions Process
Executive Summary
The bipartisan federal bill was introduced by Rep. David Kustoff (R-Tenn.), Rep. Burgess Owens (R-Utah), and Rep. Josh Harder (D-Cal.)
Bill seeks to install additional due process protections for member institutions of athletic associations like the NCAA.
Although there are more than one athletic association governing college sports in the U.S., the bill is clearing targeting the NCAA and its infractions process as the bill applies to associations with at least “900 member institutions” like the NCAA.
Bill intends to add specific deadlines to expedite the infractions process and a statute of limitations on how far back an alleged infraction can be brought in to a case.
Mandating binding arbitration for involved parties to resolve infractions cases is also presented in the bill.
Bill empowers the U.S. Attorney General and Department of Justice to investigate individuals involved with NCAA infractions process such as Committee on Infractions members for not following the proposed Act.
Bill would curb NCAA Enforcement Staff from entering confidential resources into evidence or using confidential sources as a basis for any case decision.
Bill does leave some questions on scope of application and may miss opportunity for more due process measures.
NCAA governance structure led by Infraction Process Committee is currently examining the infractions process to, in part, improve efficiency without sacrificing fairness.
The interest in overhauling the NCAA’s beleaguered infractions process carries beyond the NCAA membership. Congressional members have taken note of challenging experiences with member institutions in their respective districts and, last week, Rep. David Kustoff (R-Tenn.), an alumnus of the University of Memphis, Rep. Burgess Owens (R-Utah), a former University of Miami football player, and Rep. Josh Harder (D-Cal.), a Stanford University alum, introduced a bipartisan federal bill to install additional due process protections for member institutions of athletic associations. Interestingly, Owens also serves as a member of the House Education and Labor Committee and House Judiciary Committee — thematically relevant Committees as it pertains to college athletics, NCAA infractions due process, NIL, and intersection of student-athletes and “employee” status.
Bill Highlights
The bill targets the due process measures toward “covered athletic associations” which, at the end of the day, is first and foremost the NCAA. Here is a snapshot of several key provisions from the NCAA Accountability Act of 2021:
If the covered athletic association initiates an investigation into a member institution, the covered athletic association shall provide written notice to the member institution detailing the nature of the inquiry by not later than 60 days after the covered athletic association receives information indicating that a bylaw violation may have occurred and that the covered athletic association has determined that an investigation is warranted.
The written notice would need to include which sport programs are under investigation, which individuals are being investigated, what’s being alleged, and outline the rights of the accused.
Prior to commencing any enforcement proceeding, the covered athletic association shall provide the member institution with a notice of allegations not later than 8 months after the notice of inquiry is received.
Not earlier than 60 days after the notice of allegations is received, there shall be a hearing before the covered athletic association’s infractions committee or body with authorization to hear cases and prescribe punishments to member institutions which shall conform to the following requirements: The infractions case hearing shall commence not later than 1 year after the notice of inquiry is provided to the member institution. This provides a more concrete timeline for these cases to be processed from initial inquiry, to investigation, to verdict.
In terms of transparency around sources, NCAA Enforcement has used confidential sources at least, in part, to develop the basis for allegations. The bill would hold that “…no information from confidential sources may be offered into evidence or form the basis for any decision.” This provision, on one hand, would promote transparency to the process but, on the other hand, could quell involved individuals from coming forward or participating in a process if anonymity is essential to their cooperation.
The bill also conveys the ability of the Administrative Law Judges (ALJ) to compel production of witnesses or evidence pertaining to a particular case through issuance of a subpoena and a U.S. District Court may issue order requiring compliance of the subpoena.
“In the event that there is any dispute regarding the covered athletic association’s punishment of a member institution, the member institution may compel entry into arbitration conducted in accordance with the standard commercial arbitration rules of an established major national provider of arbitration and mediation services based in the United States, which will provide an independent review and binding decision. The arbitration shall be conducted by a three-person panel. The covered athletic association and member institution shall each appoint one arbitrator of their respective choosing. The third arbitrator shall be appointed in agreement by the two arbitrators appointed by each party.”
The premise that each party is able to select one of the three arbitration panelists who then, collectively, would select the third is a traditional benchmark of arbitration proceedings and, in the end, gives the involved parties a sense of fairness with the process since they had a say in who adjudicated their case.
Other Bill Takeaways
The bill also calls for the covered athletic association to not disclose information relating to an ongoing investigation into a member institution until formal charges are filed in the notice of allegations. This provision speaks to an NCAA member institution’s interest in not enduring negative press tied to news confirmations or leaks that an inquiry has been launched or an investigation might be on the horizon.
On the flip side, the bill allows an NCAA member institution to have discretionary authority to disclose any information relating to an ongoing investigation which would rebut, at some level, the variety of confidentiality expectations placed on member institutions in NCAA Bylaw 19 which covers the NCAA infractions process. In other words, NCAA schools would conceivably have more latitude to speak publicly on their view of potential infractions case, the status of an on-going case, and the like.
Access to information surrounding a case was also addressed in the bill. Media and other third parties submitting to NCAA member schools public records requests for documents related to an ongoing NCAA investigation would also face headwinds. Specifically, the bill states “…no information relating to an ongoing investigation shall be subject to any disclosure requirement under State law.”
The NCAA would also be required to submit an annual report to the Attorney General of the United States summarizing its enforcement proceedings, investigations, and issuance of punishments to member organizations under the bill over the preceding year. A covered athletic association would also be required to submit an annual report to each State Attorney General (and the Attorney General for the District of Columbia) summarizing its enforcement proceedings, investigations, and issuance of punishments to member institutions headquartered in the State.
The Attorney General of the United States would also be empowered to establish procedures for bringing complaints against the NCAA and individuals representing the NCAA infractions process for potential violations of the proposed Act. ALJs within the Department of Justice would be given authority to access and examine evidence of any person or covered association being investigated. ALJs could determine, based on preponderance of the evidence standard, that a person or covered athletic association named in complaint has violated the statute and then issue findings of fact. Further, an ALJ could order individual or association to cease and desist from such violations and pay a civil penalty in an amount ranging from $10,000 to $15,000,000.
Decisions of an ALJ would become the final agency decision, unless the Attorney General modifies or vacates the decision within 30 days after ALJ issues the order.
The bill also conveys the ALJs’ ability to compel production of witnesses or evidence pertaining to a particular case through issuance of a subpoena and a U.S. District Court may issue an order requiring compliance with the subpoena.
What’s the Bill missing?
No single federal bill would be able to solve all the present-day challenges facing the NCAA infractions process. This bill still has its shortcomings. One provision in the bill that leads to more questions is granting the ALJ the right to order the “…permanent removal of any member of the covered athletic association’s governing body in the case of a violation.”
Does this “permanent removal” of an individual apply to that individual’s involvement with a particular infractions case? Does this permanent removal power enable an ALJ to remove an individual from an applicable committee (e.g., Committee on Infractions; Independent Accountability Review Panel) or department (e.g., NCAA Enforcement) in the NCAA governance structure indefinitely? Is it something else?
The bill also missed on including other procedural due process ingredients in this bill. The bill makes no reference to enhancing the process by which individuals that would (or should) serve on the committees within the NCAA’s infractions process.
The premise of the bill is to bolster due process within the infractions process. It may be a missed opportunity that there was no express requirement for the NCAA to increase the scope and diversity of representation (translate: increase pool of administrators and coaches to serve in process) and increase the rotation of individuals involved in the adjudicative process (translate: consider heightened term limit restrictions.)
Final Thoughts on the NCAA Accountability Act of 2021
This bill reflects the growing impatience that outside stakeholders— like Congressional representatives— have with the NCAA’s infractions process and, concurrently, the NCAA’s ability to overhaul it in a timely fashion.
The NCAA membership, through its governance structure, is trying to advance strategic and significant overhaul at all levels of NCAA governance including its infractions process. In addition to the formation of a Constitution Committee and conducting the upcoming Special Convention, Division I Board of Directors formed the Infractions Process Committee and set priority areas for the Committee to review including “…enhancing expediency without sacrificing fairness, communicating process and outcomes more effectively, and determining whether violation levels are categorized appropriately.”
It will be interesting to see if the NCAA infractions process will see significant overhaul through change hastened by the NCAA membership or by Congress. The race is on.
Athletics Veritas is presented for information purposes only and should not be considered advice or counsel on NCAA compliance matters. For guidance on NCAA rules and processes, always consult your university’s athletics compliance office, conference office, and/or the NCAA.
