A Time for Novel Solutions to Overhaul the Embattled NCAA Infractions Process
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The NCAA Makeover: A Time for Novel Solutions to Overhaul the Embattled NCAA Infractions Process
Executive Summary
AV continues its multi-part NCAA Makeover series identifying key issues and recommended solutions for the newly formed NCAA Constitution Committee’s efforts to reimagine college sports governance.
SEC Commissioner Greg Sankey wrote a letter in December 2020 to NCAA articulating concerns about the current NCAA infractions process that, if unaddressed, could lead to a “crisis of confidence.”
Commissioner Sankey noted multiple workings groups, commissions, and other targeted initiatives attempting to address the cumbersome and slow-paced infractions process have not made headway.
Criticisms of the NCAA infractions process date back several years including in 2014 when Big XII Commissioner Bob Bowlsby said “NCAA enforcement is broken” and then-Big 10 Commissioner Jim Delaney said “we need to scrub [the infractions process].”
As part of AV's NCAA Makeover series, AV highlights this month a spectrum of concepts to bolster efficiency, accountability, and enfranchisement in the NCAA infractions process
This week, AV explores the value proposition for infusing Alternative Dispute Resolution (ADR) mechanisms in to the NCAA infractions process.
“Crisis of Confidence”
Last December, Sports Illustrated reported that SEC Commissioner Greg Sankey wrote a letter to the NCAA expressing concerns about the current state of the NCAA’s infractions process, including the challenges engulfing the newly minted Independent Accountability Resolution Process (IARP) and its varying procedural and structural machinations.
“Despite numerous reviews, working groups, task forces and commissions, the enforcement and infractions process continues to present meaningful challenges affecting member relations and public relations while raising concerns that, if left unaddressed, will emerge as a crisis of confidence,” Sankey wrote.
“Across Division I, we are now experiencing numerous high-profile infractions matters that have lingered for more than three years prior to any outcome being publicly announced,” Sankey continued. “To my knowledge, several of these matters are not close to completion. The current timelines must be viewed as unacceptable, and rapid change is needed such that appropriate accountability is applied in a timely manner."
A commission, led by Condoleezza Rice, was also formed with the intent to create wholesale change, timeliness, and accountability from the infractions process with particular emphasis on men’s basketball, but, per Sankey, those aspirations yet have to materialize.
“At the time of the announcement, expectations were high and focused on meaningful accountability around cases identified by the Southern District of New York,” Sankey wrote. “Expectations for the NCAA to enact meaningful change were equally high around the basketball community. Nearly three years later, it doesn’t appear either expectation—for accountability or change—has been met.”
Concerns about the infractions process are not a recent headline, either. In 2014, Big Ten Commissioner Jim Delaney said the NCAA infractions needed a complete overhaul: “we need to scrub it. ... [enforcement is] at a competitive disadvantage when developing information compared to law enforcement."
Gerald Gurney, president of The Drake Group (an NCAA watchdog), also shared concerns about fairness in the process when he noted in 2014: “If we're interested in fairness, it starts with giving schools and individuals real due process. Right now, once you get a notice of inquiry, you're presumed guilty, and we've seen schools fire coaches regularly without due process. People don't have much confidence in this (system)."
As the NCAA Constitution Committee considers a variety of steps to overhaul the governance structure of the NCAA, examining how the infractions process should be revamped will be essential to true reform.
The Infractions Process Should Require All Parties to Participate in Alternative Dispute Resolution
"We cannot solve our problems with the same thinking we used when we created them.”- Albert Einstein
Einstein’s famous quote has been referenced many times over the years in relation to NCAA governance overhaul -- and the thought remains relevant today when it comes to adjudicating NCAA infractions cases.
One primary critique of the infractions process is the time it takes to adjudicate cases. For context, the length of NCAA infractions cases can be dictated by a variety of circumstances, including the time it takes for Enforcement staff to complete its investigation which encompasses the time it takes to acquire and review documents and get individuals involved with the case to be available to participate in an interview with Enforcement. There are also built-in time frames allowing Enforcement, the involved university, other related parties, and the Committee on Infractions to reply to briefs and other official communications within the overall process. All of these steps add up to a lot of time, especially with complex cases.
Under current NCAA infractions procedures, “all investigations shall be conducted as promptly and as efficiently as possible, without sacrificing fairness or accuracy.” That declaration should still stand, but the means by which this stated objective is reached needs change.
In a traditional infractions case according to NCAA infractions procedures, “when the enforcement staff begins an active investigation, it shall project the anticipated duration of the case (i.e., when a notice of allegations or summary disposition report will issue) based on, among other factors, the number of sports and the number of potential allegations identified. The staff shall notify the institution and any involved individual(s) of the projected duration and all parties shall work to satisfy the proposed timeline.”
The NCAA infractions process also includes the summary disposition and negotiated resolution which present two pathways to expedite a case resolution without undermining fairness. The common problem underlying these two alternative pathways to resolve infractions cases, though, is that once one party either does not agree to continue in the process or simply does not adhere to the timeframe set within the process, the attempt to expedite and resolve is thwarted. Further, complex, high profile, and otherwise deeply contested infractions cases are often not recommended for summary disposition or negotiated resolution. As a result, a good number of infractions cases take the traditional, often time-consuming pathway to resolve.
This is where landmark procedural reform is due. The NCAA infractions process should be fortified with alternative dispute resolution (ADR) mechanisms, in which all parties -- the involved member school, coaches and staff, NCAA enforcement, and Committee on Infractions -- go through required mediation sessions to collaboratively resolve a case. If not resolved from mediation, the parties could then be directed to mandatory arbitration in which a hearing panel of trained arbitrators with an understanding of college athletics policy renders a final decision including penalties to the case.
Implementing ADR as a required step in the process could improve efficiency and get all parties to the table to resolve an issue.
The policies for administering mediation and arbitration within a traditional judicial system may need re-engineering for purposes of fitting within the NCAA's judicial framework noting the NCAA is a voluntary-member association. Nonetheless, the upside to using ADR methods and principles within a revamped NCAA infractions process are numerous.
The California court system outlines the benefits of using alternative dispute resolution methods to resolve cases and de-clog the already overburdened court system. Said benefits would directly address some of the primary concerns college athletics stakeholders have been lamenting about for years.
ADR would save time, money, include all parties in the ultimate resolution of the case, and increase satisfaction in the process.
A dispute often can be settled or decided much sooner with ADR; often in a matter of weeks or months compared to the years current and pending NCAA infractions cases may need. When cases are resolved earlier through ADR, the parties may save money they would have spent on attorney fees, staff time, travel and other case management expenses.
In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial (or Infractions hearing). Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute.
ADR can be a less adversarial way to resolve a dispute. For example, an experienced mediator can help all parties effectively communicate their needs and point of view to the other side. This can be an important advantage where the parties have a relationship to preserve.
In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help all involved parties find win-win solutions and achieve their real goals. This, along with all of ADR's other potential advantages, may increase the parties' overall satisfaction with both the dispute resolution process and the outcome. In short, ADR could enlighten the infractions process.
The time is right for ADR to be infused in to the NCAA infractions process.
In next week's AV, we continue the NCAA Makeover series by exploring more concepts that could help improve the NCAA infractions process, including increased accountability and enfranchisement, and considering other policy reforms.
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.
