With much attention being paid to the National Collegiate Athletic Association (“NCAA”) as the former UCLA basketball star, Ed O’Bannon-led class action lawsuit continues to grab headlines, the NCAA’s recent changes to its enforcement structure has garnered minimal notoriety. After years of complaints about significant delays in the investigation process, unclear regulations and difficult to navigate procedures, the NCAA enlisted the help of its member institutions to revamp its enforcement structure.

Following numerous meetings with these member institutions, a new four-level enforcement structure has been implemented which creates multiple case tracks designed for greater efficiency. The new structure offers an accelerated hearing procedure (Bylaw 19.7.7.2), a written record case track (Bylaw 19.7.2) and a summary disposition track (Bylaw 19.6), (see figures 1 and 2) all of which promise to decrease the infractions processing time.Another major change to the enforcement process is the increased number of hearing officers. The old regime consisted of a total of only ten officers with a minimum of five of those officers required to be present for a hearing. This made scheduling hearings a grueling task and resulted in the relatively infrequent convening of hearing panels. The new structure increases the hearing officer pool to twenty-four which will enable the NCAA to schedule hearings at least once per month and issue decisions more quickly.

Figure 1

Figure 2

Despite these seemingly improved efficiency mechanisms, critics note that the new procedures do little, if anything, to eliminate the ambiguity of the NCAA enforcement regulations. In fact, during a recent panel discussion hosted by the Sports Law Committee at NYU, attorneys with years of experience defending individuals and institutions in NCAA enforcement hearings griped that the new multi-level infraction structure will further complicate the process. They noted, for example, that the difference between a “Severe Breach of Conduct” and a “Significant Breach of Conduct” is merely semantic. The language of each of the four levels of infractions is reproduced below.

Bylaw 19.1.1 – Severe Breach of Conduct (Level I) – (In person hearings) — Violation that seriously undermines or threatens the integrity of NCAA Collegiate Model, including a violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage or a substantial or extensive impermissible benefit.

Bylaw 19.1.2Significant Breach of Conduct (Level II) – (telephone or teleconference unless in-person hearing requested.) Violation that may threaten the integrity of NCAA Collegiate Model, including a violation that provides or is intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage; includes more than a minimal but less than a substantial or extensive impermissible benefit; or involves conduct that may compromise the integrity of the NCAA collegiate model as set forth in the Constitution and bylaws.

Bylaw 19.1.3 – Breach of Conduct (Level III) Violations that are isolated or limited in nature, and provide no more than a minimal advantage, and provide no more than a minimal benefit. Multiple Level IV violations may collectively be considered a breach of conduct

Bylaw 19.1.4 – Incidental Infractions (Level IV) Incidental infractions that are inadvertent and isolated, technical in nature and result in a negligible, if any, competitive advantage. Level IV infractions generally will not affect eligibility for intercollegiate athletics.

The idea of a multi-tiered infraction system, in theory, sounds quite appealing but in practice there appears to be significant ambiguity along the margins. One attorney at the NYU panel even noted that the new regulations will result in a significant amount of “lawyering” over what “substantial” or “extensive” means, questions that will ultimately be determined in the discretion of the Infractions Appeal Committee. However, the NCAA insists that each case is unique and past decisions will serve as non-binding precedent. According to the NCAA representative speaking at NYU, the Committee on Infractions will only use past decisions as guidance to inform and reach fair penalties. Thus, some institutions and lawyers who may represent them before the NCAA worry that consistency across hearing panels will be difficult to achieve. Additionally, despite the number of hearing officers more than doubling under the new system, the Infractions Appeals Committee has not expanded its membership. Thus, the appeals process is not likely to move any more quickly than before and with the potential of the ambiguity in the new regulations resulting in more appeals, the appeals process may take even longer than under the old structure.

The new enforcement procedures also appear to offer a perverse incentive with respect to self-reporting. Although the NCAA has and will continue to consider mitigating factors such as self-reporting when determining penalties for infractions, it has now increased the onus placed on the Head Coach. The new infractions system essentially holds the Head Coach strictly liable for any infractions that occur under his/her watch with no consideration paid to whether the coach was actually aware of the actions. As former Tennessee Men’s Basketball Coach Bruce Pearl said at the NYU panel, there is now little incentive for a Head Coach to self-report, in fact there is incentive to withhold information about infractions.

Ultimately, no matter what side you are on it is clear that the NCAA has the student-athlete’s best interests at heart and the entire enforcement process is designed to protect current and future NCAA athletes. However, as recent history has shown, coaches and institutions will continue to violate NCAA regulations and student-athletes will continue to be affected by the penalties imposed on them and their institutions. While there is no doubt that the new structure will improve enforcement efficiency (at least initially), only time will tell if the new process can resolve the substantive issues that many involved parties foresee. In the meantime, what is clear is that NCAA member institutions, athletes and certainly coaches are uncertain of what the new system will bring. A prudent coach would err on the side of caution to avoid infractions, but coaches are inherently a breed of risk takers; they send in the offense on 4th and 1 instead of sending in the punting unit. The ball is in the NCAA’s court, we will see what it does with it.

For more information about the new infractions process see the Enforcment Section of the NCAA website: http://www.ncaa.org/wps/wcm/connect/public/NCAA/Enforcement/

The panel discussed in this blog entry was organized by the Sports Law Committee within the Intellectual Property and Entertainment Law Society at NYU School of Law. For more information on this panel and future events hosted by the organization please visit their website: http://www.law.nyu.edu/studentorganizations/ipels/events

Adam Dale is a J.D. candidate, ’15, at NYU School of Law.

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