LAS VEGAS — One by one, each administrator walked into a nondescript conference room on the sixth floor of the JW Marriott Las Vegas Resort and Spa, located a ways away from the Strip. They dressed professionally but comfortably, as has become the norm after two years of video conferencing followed by, finally, a return to in-person meetings.
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You wouldn’t know just by a quick glance that these are the people both pitied and feared by the rest of the NCAA’s Division I. The Committee on Infractions is the entity that metes out punishment for bad behavior, but it is also a group that is trying hard to define its role in an ever-evolving collegiate sports model. It wants to encourage more cooperation, and it wants to punish the adults, not the athletes. This is a largely thankless job, but someone has to do it. Actually, about two dozen someones.
“For me, it’s about being part of the solution and not just sitting back on campus and complaining about decisions,” said Tricia Brandenburg, Army’s executive associate athletic director and a COI member in her first term.
“The enterprise is at a crossroads,” said outgoing Metro Atlantic Athletic Conference commissioner Rich Ensor, set to retire this summer after more than three decades in college sports. “There’s so much revenue flowing into certain elements of the membership that we have to really think about how we’re going to manage the enterprise if we cannot enforce rules in a fair and equitable manner.
“There are too many riches available at the end of the (rainbow) for some of the folks that go out and break the rules. We have to have a risk-reward system here in place, and right now there’s no risk to them because we haven’t really had strong enforcement, in my mind, for a while.”
The COI, which meets in full twice a year, invited The Athletic and another outlet to attend one of its meetings last week for the first time.
Athletes can now make money from their own names, images and likenesses (NIL). But those deals aren’t supposed to be recruiting inducements — and a whole lot of them appear to coaches and athletic directors nationwide to be just that. Member schools say they want the NCAA’s enforcement staff to find the violators and for the COI to punish them. That hasn’t really happened yet.
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The new NIL presumption gives the group a new advantage: Per a bylaw that took effect on Jan. 1, when information supports that the behavior surrounding an NIL offer or agreement was against NCAA rules, the infractions process can presume a violation occurred. The onus falls on the parties involved to rebut the presumption, proving that a violation did not occur.
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No cases have been processed since the presumption took effect, so it’s not yet clear whether a period of more draconian penalties is coming, or whether that’s even possible considering the fraught legal environment in which the NCAA operates.
COI chair Dave Roberts, who serves as the special assistant to the athletic director at USC in his day job, has seen the pendulum of NCAA punishment swing. He refers back to the early 2010s as a “hang ’em high” period, citing a case involving his current employer as an example of an outcome he and others felt was too harsh.
The other end of the pendulum: the Independent Accountability Resolution Process, which sprung up out of a recommendation from the Rice Commission in 2018. Select infractions cases, including many of the high-profile basketball cases initially investigated by the FBI, were heard by new independent groups, not the COI. The process has already been shuttered due to its ineffectiveness and lack of logic.
“I came on board after USC got clobbered in 2010, and I didn’t particularly like that decision,” Roberts said. “But at the same time, we needed to change some things and this group was very, very aggressive, but it changed (behavior).
“We don’t think (the infractions process) is perfect. Nothing’s perfect, right? We’re very amenable to change, according to what the association and membership wants to do.”
The full COI includes a range of experience, from current and former university presidents and compliance experts to ex-coaches and a former attorney general of the United States.
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These members make up the panels that hear cases that include contested hearings. They read thousands of pages of testimony and question the NCAA’s own investigators, if necessary, at full hearings. They see and hear firsthand the actions of those facing the pressure to win and win big. They also witness a range of tactics from participants, some of whom in recent years have hired outside counsel who can be unfamiliar with the infractions process and more than a bit combative.
“The IARP process was an adversarial process, and the process has gone away,” said COI member Jason Leonard, the executive director of athletics compliance at Oklahoma. “It didn’t work within the membership because this is supposed to be a collaborative process.”
Most cases that come to the COI come in the form of a negotiated resolution, which means that the enforcement staff, the school, and the coach(es) involved agree on the facts of the case and the punishment. Roberts said about 60 percent of cases (53 total) in the past couple of years have ended in negotiated resolutions. The COI has approved 50 of those negotiated resolutions; the COI rejects a negotiated resolution agreement only if it believes the decision is not in the best interest of NCAA membership or if the penalties are “manifestly unreasonable.” Only about 20 cases have been contested, leading to actual hearings.
Roberts said most of the time that is spent on cases comes either during the initial investigation by NCAA enforcement or during the appeals process. The lag between a violation occurring and punishment being handed down is the biggest complaint he hears from NCAA membership, and it’s part of the reason there have been significant reforms to the enforcement and infractions processes in the past year. There may be fewer situations that allow for appeals moving forward. And the D-I Transformation Committee recently suggested that contested hearings be used for only the most severe infractions cases.
That means there will continue to be a lot of negotiated resolutions, like last week’s NIL-adjacent case involving the Miami women’s basketball program. The penalties were relatively minor and did not include disassociation of the booster involved. The players involved were not sanctioned, either. The three-person panel that approved the agreement did attempt to warn future offenders that the COI is prepared to hand down harsher punishment to deter bad behavior.
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“We are not legislators, so we apply the rules that the membership has given to us — and we don’t engage in enforcing only the ones that we like,” said Kay Norton, former president of the University of Northern Colorado. “And isn’t that the fundamental issue of all rules? What is the role of deterrence? What is the role of punishment? And before all that, what was the role of education? Did the individuals know, or should they have known, that this was improper?”
Norton, a former lawyer, often underscores an important point: This is a membership association, and its penalty process operates on the principle of cooperation. But cooperation is not necessarily a natural reaction after someone is accused of rule breaking.
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“You’re talking about people who work in athletics — they’re very competitive people,” Norton said. “Their instinct is to defend, to not talk. … And we don’t have subpoena power or the authority we’d have in a regular court setting. So, things may get dislocated a little bit and we have to figure out what we think the real facts are.”
The COI tries to dangle carrots in front of schools to garner better cooperation from witnesses or more sharing of communications, Roberts said. This and other “mitigating factors” can reduce the severity of a penalty. There are also, of course, “aggravating factors” (such as a school being a repeat rule-breaker), and the fight to determine if and what aggravating and mitigating factors should matter will be central to future cases.
Similarly, the penalties at the committee’s disposal could change if NCAA membership wanted. The COI uses the current penalty matrix to hand down its sanctions, with potential fines (capped at a number that often leaves the fine equivalent to pocket change for some Power 5 athletic departments) and postseason bans still available options.
“The postseason ban is a core penalty now, and indications we’ve heard are that it’s going to remain a core penalty, although maybe it’s only applied in the most egregious cases,” Norton said. “But it is one of the more effective penalties in terms of punishment, I suppose.”
So, too, is booster disassociation, in which boosters can be prohibited from donating to a school’s athletic program or be banned from attending home athletics events.
Perhaps a heavier financial penalty would be effective as well. Both the NCAA’s enforcement staff and the COI seem focused on making sure the adults in the room are the ones hit where it hurts, not the athletes at the center of some of these cases and especially not athletes at the school who had nothing to do with the case. “It’s extremely, extremely difficult to punish innocent student-athletes because we have innocent student-athletes on our campuses also,” Leonard said.
Where does the infractions process go from here? Even those in the room are far from certain. But they’ll be part of the path forward, as college sports sorts out what the rules for the most level playing field possible might look like.
“Everyone’s for strict enforcement and tough rules until they’re applied to them — which is simply human nature,” Norton said. “We have to walk a tightrope over that abyss.”
(Photo: Andy Lyons / Getty Images)
