Sports Law Blog
All things legal relating
to the sports world...
Friday, November 02, 2012
 
NCAA Sends Mixed Signals with New Enforcement Program

On Tuesday October 30th, the NCAA Board of Directors announced the adoption of a new enforcement structure that, among other things, creates additional levels of infractions, enhances accountability for head coaches, and seeks to punish violators with sanctions that more appropriately align with the actions that occurred.  The most striking of these new initiatives, to be implemented beginning in August of 2013, is the creation of the new four-tiered structure for violation classification. 

Under the current model, violations are classified as either major or secondary.  The new system sets forth violations as follows: Level I, Severe breach of conduct; Level II, Significant breach of conduct; Level III, Breach of conduct; and Level IV, Incidental issues.  A copy of the NCAA’s press release may be found here.  This new structure is the product of a year-long effort by the thirteen-member Board comprised of presidents, athletic directors, and conference commissioners.   President Mark Emmert described the changes as part of a devotion to “protecting the collegiate model,” in part by “remov[ing] the ‘risk-reward’ analysis that has tempted people.”  

These changes come on the heels of increasing external pressure for a more consistent and transparent process, with a number of major infractions cases serving as the backdrop for this magnified criticism.   Greater accountability and stricter sanctions is undoubtedly a step in the right direction when it comes to enforcement of what would be considered major infractions under the current framework.  The NCAA should be applauded for taking measures to ensure consequences for coaches who plead ignorance while violations blatantly occur on their watches.  But at the same time, the new violation structure is troublesome.   Despite admirable efforts to construct a better system, this new four-tiered structure for violation classification fails to ameliorate many of the common concerns expressed with respect to NCAA Bylaws and enforcement of the same.  Hopefully, this will be cleared-up with the upcoming changes to the substantive “rules” in the Bylaws.   

The NCAA Bylaws are often denounced as too lengthy and too complex, and deservedly so.  Moving from a two-tiered violation structure to a four-tiered system, if not matched-up with more common sense in rule substance, is an obvious step backward, and is counterintuitive if the desired outcome is a more workable framework.  Increased confusion is even more likely when one considers the near endless interpretations that could be attributed to the definitions describing each tier.  For example, consider the difference between a violation that “threatens the integrity of the NCAA,” versus a violation that merely “provides more than a minimal, but less than a substantial…advantage.”  One definition classifies a Level I violation, while the other corresponds with Level II, but is there really a difference?   The definitions may mean something different to a coach versus someone in compliance at a school or enforcement at the NCAA, so how then is the goal of deterrence met for the problem that President Emmert describes as a calculation of risk vs. reward made by coaches who currently do not have sufficient risk to their livelihoods or respective programs.

Under this system, inconsistencies may abound to an even greater degree than under the current model.  This is likely to complicate the NCAA’s investigative measures, which is problematic given the Association’s already limited resources; resources so limited that some have even suggested that the NCAA get out of the enforcement business altogether (for a more in depth discussion of this proposal, see this well-done piece by Attorney Stephen A. Miller, recently published in The Atlantic).  Finally, if the NCAA is really student-athlete first, then this measure does nothing to address the countless Bylaws that punish student-athletes for technical violations that provide no competitive advantage, and do little more than burden an already overwhelmed enforcement staff.  Again, it is worth pondering, is an “incidental issue” even worth sanctioning?  I hope that reforms not just in terms of a scholarship enhancement, but in terms of rules affecting student-athletes’ behavior on a day-to-day basis are addressed in the coming months.

Since the NCAA has chosen to divert its attention first to the method in which these intricate and often superfluous regulations are classified, my worry is that dealing with the substance later will lead to a continuance in seeing violations shoe-horned into a rigid framework that sometimes, but does not always fit.  For those that desire more consistency in results, do you want the NCAA to have something akin to Federal Sentencing Guidelines, or more common sense in results?  I am not yet convinced that the new enforcement structure will get us more common sense in results, which many (myself included) would like to see as opposed to more rigidity.

Over time, perhaps this will prove to be a positive step toward a streamlined, consistent, and fair process.  For now though, a more detailed systemization of the NCAA’s enforcement structure only seems to complicate matters further if there is not significant overhaul to the substance of the rules themselves.  While my experiences may leave me a bit biased, until we see a comprehensive reassessment of the actual Bylaw language (promised in the next few months), I foresee this self-proclaimed “overhaul” as little more than a re-branding exercise.

*Hat tip to Brian Konkel for his work on this piece.





5 Comments:

I really don't see how the new system is going to help the compliance or athletic administration staff on a college campus.

What would help is having enforcement show up UN-announced at any time...

Institutional Control leads to abuse of power and an ignorance is bliss attitude

Blogger Sean McAndrews -- 11/03/2012 5:08 PM  


Well said. I really do not see this as much of an improvement. Moreover I think it over complicates an already complicated and unfair process. This will likely drive more things underground and more people becoming scapegoats for who the institution and NCAA want to protect.

Anonymous B. David Ridpath -- 11/05/2012 9:53 AM  


I completely agree with this post. There is a small amount of credit to be given to the NCAA for trying to come up with preventative measures to protect collegiate sports. However, the credit ends there. The rules handed out by the NCAA have been vague, complex, and even arbitrary. What needs to be done more than implementing a even more complex "tier system" is for the NCAA to wipe out rules that incidentally cause harm to student athletes without or with very little preventative reward.


Blogger Jonathan Gevas -- 11/15/2012 4:48 PM  


Having been an athlete under the guidelines of NCAA and also a tutor for collegiate athletic departments, the rules are complicated as is and these changes only further complications. I am sometimes dumbfounded by some of the rules that are at play. Limits on what food can be given to hungry athletes, limits on what where you can tutor and what help you may give, the limits are endless. If you surpass these limits, you are then punished. The NCAA has not only kept certain ridiculous limits, but has made it a more detailed and complicated system of how you will be punished for passing such limits. Recently one of my former teammates was diagnosed with a rare form of cancer. At a team dinner I suggested we do a fundraising event and one of my friends, who is still a member of the team, immediately thought, “We have to be careful not to break any NCAA rules.” I was angered by what she said because I knew what she said was true. As current athletes, my teammates could possibly be limited to what we could do to raise money for our sick teammate. All I could think at that time is how restrictive and controlling the NCAA is over the lives of athletes. While I understand and appreciate the need for rules in such a system, the line needs to be reasonably drawn, not complicated with a more detailed sanctioning system. As a former NCAA athlete, I no longer have to abide by these rules (thank goodness), but this doesn’t take away from my frustrations and belief that change is necessary in the future. Here’s to hoping it happens sooner than later.
Brittany Fink

Anonymous Anonymous -- 11/16/2012 8:49 AM  


Until the NCAA can show up unannounced or you get someone in the media wanting to make a name for themselves, compliance will be a thankless dead end position..

Blogger Sean McAndrews -- 11/17/2012 7:53 PM  


Post a Comment