How a Legal Tool Rooted in Medieval Latin and the Wisdom of Albert Einstein Could Steer the Future NCAA to a Better Path
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The NCAA Makeover: How a Legal Tool Rooted in Medieval Latin and the Wisdom of Albert Einstein Could Steer the Future NCAA to a Better Path
Executive Summary
AV concludes its multi-part series identifying key issues and recommended solutions for the newly formed NCAA Constitution Committee’s efforts to reimagine college sports governance, compliance, and the infractions process.
The NCAA’s current governance crossroads may include revisiting whether the enforcement mechanism in college sports should be outsourced.
The college athletics enforcement-arm – whether under the current NCAA structure or through a new agency – would benefit from having subpoena power.
Coaches Associations, Sport Governing Bodies, and State and Federal Agencies should play an increased role alongside NCAA schools in the ownership, monitoring, and compliance with the heightened regulatory landscape cascading over college sports
The NCAA membership’s pattern of adopting unenforceable rules is an often-overlooked hindrance that has created an unhealthy, unrealistic, and bloated NCAA governance landscape.
Even with 10 or more athletics compliance officers at a major Division I athletics program, the current rulebook and monitoring expectations are untenable
The time is now for simplified rules, brighter lines, and common-sense governance.
In the final installment of AV’s NCAA Makeover series, we examine one pragmatic legal tool that could change the landscape of NCAA infractions cases in terms of incentivizing the cooperation of all witnesses, improving the efficiency of the evidence-producing process, improving the length within which infractions cases are processed and creating a longer reach for the enforcement arm. These final thoughts are imbued with the wisdom of Albert Einstein.
Ask Congress to Provide Subpoena Power to NCAA Enforcement or the Future Agency Overseeing College Athletics’ Investigations
In 2014, former NCAA Vice President for Enforcement Julie Roe-Lach noted to CBS Sports that “[o]ver time the pendulum has swung on how much enforcement has developed leads in cases. You can’t just rely on self-reports from schools. You can’t rely just on investigative reporters in media. Should [enforcement] be outsourced? We’re exploring outsourcing surveillance and generating leads.”
As has been chronicled in many different ways over the years, the NCAA Enforcement Department does not have subpoena power. Therefore, when the NCAA Enforcement staff conducts investigations, its ability to compel production of some relevant documents and compel individuals not employed at NCAA member schools to participate and be interviewed is at best an uphill climb and, at worse, akin to scaling the Grand Tetons without a climbing harness.
NCAA Enforcement staff can leverage testimony and documentation through a limited immunity process, but that does not provide the teeth that subpoena power does. Other than self-reporting, schools reporting potential violations by another, or media reports of potential violations, NCAA Enforcement’s ability to surveil and compel production of relevant testimony and documentation is limited.
Congress could infuse more powers into the investigative side of college athletics by empowering NCAA Enforcement staff (or whichever entity in the future is responsible for investigating potential violations) with the ability to subpoena documents and compel cooperation from individuals not presently employed at an NCAA school or conference.
Going further, the question of whether protecting “the collegiate model” is vital enough for investigations to be outsourced altogether is a notion worth exploring. Perhaps there is a merger of the NCAA Enforcement Department with an outside firm or federal agency to provide broader capacity to investigate, compel cooperation and production, and, in the end, be equipped to process infractions cases in a more efficient manner.
The involvement of the FBI in the men’s basketball cases before the Southern District of New York provides a glimpse into the power and reach the federal government can foster that the current NCAA Enforcement Department cannot. With subpoena power (let alone wire tapping), the ability to acquire relevant testimony and documentation would theoretically be swifter for investigators than the current landscape affords – with such power, the accumulation of a more accurate picture of a case could increase and the length of time to resolve cases could be shortened.
Follow Albert’s Lead, Let’s Stop Trying to Enforce the Unenforceable
Albert Einstein famously said: “Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.”
Perhaps one of the most important areas of focus for the NCAA membership and the Constitution Committee is major deregulation that is in tune with consequential rules that can be monitored and enforced. This concept is a not a recommendation to throw out the NCAA Manual. Instead, AV recommends that NCAA membership honestly and directly weigh both what matters AND what can be fairly monitored and enforced. History has shown us that NCAA rule-making can be the easy part – it’s the application and enforcement that somehow isn’t given sufficient due.
A rule shouldn't matter just because a few loud voices or a multi-million-dollar head coach says something should be regulated. There needs to be cost-benefit analysis between the element being “protected” through the adoption of a rule versus the ability, or lack thereof, for schools and NCAA enforcement to monitor and enforce the rule.
There needs to be a reset on rules that matter. Many NCAA rules address singular incidents or outdated notions of fairness that are not macro threats to a reasonable semblance of fairness in 2021. Over time, this legislative snow-ball has turned into a gigantic glacier, personified by the NCAA Manual teeming with regulatory red-tape that, for certain rules, can genuinely exist and be enforced in an ideal world, not the real one.
Most Division I Universities have anywhere from one or two athletics compliance staff at smaller Division I athletic programs all the way up to 13 or more athletics compliance staff at some of the largest Division I athletic programs in the country.
Even if a university had 25 full-time athletics compliance staff, the educating, monitoring, documenting, and campus-level enforcement responsibilities embedded in the 300+ page NCAA Manual, that applies to upwards of 700 to 800 student-athletes and hundreds of coaches and staff, is an untenable formula. The numbers do not add up. The current NCAA regulatory landscape creates an unending sequence of rabbit-hole diving to reconcile a nuanced playing season rule here or seek a last-minute waiver to an opaque amateurism rule there.
The bloated regulatory landscape places an excessively disproportionate level of responsibility for NCAA rules on those hired to monitor and track the rules – not the individuals required to follow the rules like coaches, staff, and student-athletes. In addition to the monitoring and documentation burden, some “evils” of yester-year simply are not evils anymore.
This is an opportunity for the role of sports governing bodies to be elevated within college sports to manage more programmatic matters that have also swelled the NCAA Manual. For example, head coaches and the sport’s national governing body could be responsible for receiving, verifying, and approving their respective team’s playing season weeks, number of contests, and dates of competition, starting date for the preseason, and number of preseason practices. A sport’s governing body could serve as central hub to review, process, and approve all elements of a playing season for the sport in which they oversee. At this time, this is just an additional processing burden on athletics compliance administrators.
Finding new owners of more "programmatic" rules in the NCAA Manual would help ensure consistent application of those rules across the country. This approach would place more “local” ownership at the sport’s governing body level for less controversial rules for which a sport governing body should know the heartbeat of their sport better than anyone. It would also enable institutional leaders, including athletics compliance and risk managers, to focus on more pressing policies that should remain in the NCAA Manual.
The NCAA legislative process holds that legislative proposals must include a statement on the anticipated financial cost to a university that could occur should the proposal be adopted and the projected demand on a student-athlete’s time should the proposal be adopted. Using that approach, the NCAA legislative process should also require that each legislative proposal include a statement from the proposal sponsor (an NCAA committee or conference) on the enforceability of the proposed rule.
If a particular behavior cannot be reasonably monitored and enforced, it should have to overcome a higher bar before being adopted at all or have muted consequences for failure to monitor 24/7. And perhaps unenforceable rules that are still central to NCAA priorities and values are better reflected in the front of the NCAA Constitution under the principles section.
The Time is Now for an NCAA Makeover
In closing, there is no silver bullet to solve the NCAA’s governance, compliance, and infractions woes in one fell swoop.
The Constitution Committee has a tall order in front of them with a laundry list of membership frustrations to address. The costs to the NCAA and its member schools in prosecuting and defending infractions cases that run for years are becoming so protracted that it’s outweighing the intended benefits of protecting integrity and fairness around college sports. Subpoena power could be one tool to help pierce that on-going protraction.
The over-reliance on a one-size fits-all issues Division I governance structure begs for sectionalized governance that compel stakeholders like coaches associations, sport governing bodies, state and federal agencies, and others to step forward in the name of ownership and oversight. It may even require select sports (football, men's and women's basketball) to have their own stand-alone governance structure and office.
All is not lost. AV’s NCAA Makeover series intended to offer a collection of concepts, strategies and proposed pivots to simplify and reset the membership’s focus with 2021 realities. Several of these concepts and strategies have been championed by leaders in the NCAA membership over the years. Others are new.
NCAA governance needs to exist in a common-sense orbit, not one that legislates every circumstance and situation down to the bone. The distrust within the NCAA membership and with NCAA national office leadership at this time might be at a fever pitch, but that distrust shouldn’t fuel further frenzied policy-making as a solution.
The NCAA membership should substantially reduce its singular-situation rule-making behavior and become more comfortable with bright-line rule making at the national level with far fewer lines drawn.
The NCAA membership should pursue a simplification of rules in areas like financial aid and scholarships, recruiting communications, and publicity. The NCAA membership should also embrace increased campus-level and conference-level autonomy around reasonable benefits for prospects and student-athletes that don't undermine a realistic view of fairness nor tip any scale associated with recruiting inducements or excessive (not extra) benefits. As Einstein intimated, if we continue to legislate legions of unenforceable rules to govern college athletics, we might ultimately destroy it.
Rules can and should exist. Future NCAA rule-making, though, should be driven by aligning two ingredients – areas that present the greatest and clearest threat to NCAA membership values and, concurrently, areas that can be reasonably monitored and enforced before becoming a bylaw. The NCAA membership can be principled without continuing to be a legislative mill churning red-tape.
Decisions need to be significant in order to move the college athletics freighter toward brighter and calmer waters. Let's champion our core values, but with a commitment to simplicity, nimbleness, and focus. The time is now for seismic change.
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.
