CHANGES ARE NOT ENOUGH: PROBLEMS PERSIST WITH NCAA'S ADJUDICATIVE POLICY.

Author:Lombard, Elizabeth
 
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INTRODUCTION

The National Collegiate Athletic Association (NCAA) identifies as "a member-led organization dedicated to the well-being and lifelong success of college athletes." (1) In seeking to "[p]rioritiz[e] academics, well-being and fairness so college athletes can succeed on the field, in the classroom and for life," the reach of the NCAA is strong--overseeing over 1117 colleges and universities, 100 athletic conferences, half a million college athletes, 19,750 teams, and 90 championships in twenty-four sports across three divisions. (2) In addition to the human-capital impact, the financial impact of the organization is just as startling, with the NCAA bringing in over $1 billion in annual revenue in 2017. (3) The footprint of the NCAA is massive, and understandably, with this come ebbs and flows of excessive praise and criticism from its constituents.

Recently, the critical eye of the public has focused on the NCAA's adjudicative and enforcement policy. The U.S. Department of Justice sparked the spotlight in September 2017, when it revealed it was pursuing criminal charges against collegiate basketball coaches for allegations that include those collegiate coaches accepting bribes in return for steering their successful players toward multinational shoe companies and similar businesses. (4) Journalist Alex Kirshner voiced restrained frustration with the idea that the "NCAA gets to have a robust investigation of something it hates more than anything else.... And it doesn't even have to do the workf.]" (5) Criticism surrounding the enforcement procedures of the NCAA continued to soar, as the NCAA announced the results of two high-profile academic-dishonesty cases that followed shortly after this bribery scandal. The combination of the decision that allowed the University of North Carolina (UNC) to escape NCAA infractions after accusations of academic fraud (6) and the decision, shortly thereafter, to vacate all 2012 and 2013 football victories from the University of Notre Dame "due to academic misconduct by several student-athletes," (7) led to a storm of criticism and confusion.

Social media sites serve as a testament to the rampant shock and confusion that the general population has harbored with regard to the enforcement and adjudication process on the heels of these high-profile cases. (8) Witnessing verified sports reporters and outlets refer to the NCAA as powerless or questioning its purpose or existence altogether is evidence of the NCAA's trying times in the court of public opinion. (9) On the one hand, and rightfully so, one might think that this disappointment stems simply from crazed fandom--crazy Notre Dame fans just wanted their way and their wins, or die-hard Duke fans just wanted to see UNC punished.

However, the disappointment is justified, especially when comparing the NCAA's adjudicative process to that of traditional administrative law. The Commission on College Basketball recognized the gravity of the adjudicative process's shortcomings when it issued its "Report and Recommendations to Address the Issues Facing Collegiate Basketball" (the "Commission Report") as a response to the bribery criminal cases, federal indictments, and FBI investigation. (10) The NCAA responded with "swift action" after the report was published. (11) By early August 2018, the NCAA broadcasted its "commit[ment] to change." (12) It promised to "tak[e] action" to bring in "outside voices," through the use of "independent investigators and decision-makers to enforce rules." (13) These new structures and processes promised in the NCAA's August 2018 commitment to change went into effect a year later. (14) The NCAA has made steps in the correct direction with the changes recently put into action. However, this Note argues that both the Commission Report and the NCAA's resulting commitment to change (and now-implemented changes) do not go far enough to improve the state of the NCAA's enforcement and adjudicative process.

Part I of this Note addresses where the status of the NCAA adjudicative process "was"--best evidenced through the infractions hearings of the recent headline cases at the University of North Carolina and University of Notre Dame. Part II addresses how the NCAA's historical adjudicative process compares with traditional administrative law processes. The third and fourth Parts of this Note address the Commission Report and NCAA's subsequent response to the report, along with criticisms of both. Part V raises issues with the adjudicative process that still linger even after these calls for change and responses are implemented. It also addresses potential challenges to these critiques. This Note concludes by considering more generally why this criticism matters.

  1. THE OLD WAYS

    The 2018-19 Division I Manual includes the NCAA's constitution, operating bylaws, and administrative bylaws, unreflective of the NCAA's recent adjudicative changes. (15) In order to analyze the NCAA's historical approach to adjudication, which sparked the public outcry, ignited the Commission Report, and led to the NCAA's commitment to change, this 2018-19 NCAA Division I Manual is operative. Article 19 of the 2018-19 NCAA bylaws, analyzed below, specifically discusses the relevant "Infractions Program." (16)

    The purpose of the NCAA's infractions program has aligned closely with the mission of the organization--to "uphold integrity and fair play" so that those members who do abide by the constitution and bylaws are not "disadvantaged by their commitment to compliance." (17) The infractions program has been committed to fair procedures and "timely resolution of infractions cases." (18)

    In order to appropriately punish wrongdoers and prevent disadvantages for those who follow the rules, the NCAA has implemented a tiered violation structure. According to the 2018-19 bylaws, a Level I violation, a "Severe Breach of Conduct," is wrongdoing that "provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial ... impermissible benefit." (19) Examples include lack of institutional control, academic misconduct, "[c]ash payment[s]... provided by a... representative of the institution's athletics interests," or "[f]ailure to cooperate with an NCAA enforcement investigation." (20)

    A step down in severity are Level II violations, "Significant Breach [es] of Conduct," which--plainly vague--are violations that do not rise to the level of Level I violations, but are more serious than Level III violations. (21) Perhaps just as unclear is the description of Level II violations: wrongdoing that provides or is intended to provide "more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage" to the institution. (22)

    A Level III violation is a "Breach of Conduct" that provides "no more than a minimal recruiting, competitive or other advantage," such as an "[i]nadvertent violation[ ]." (23) Ultimately, the strongest interpretative guidance that can be pulled from this three-tiered violation structure is that a Level I violation is more severe than a Level II violation, which is more severe than a Level III violation--with the difference in severity depending on whether "institutional control" existed and the level of "recruiting, competitive or other advantage" the party intended to gain. (24) To note that the 2018-19 bylaws, written as broadly and openly as they are, give the interpreters of violations substantial power in the gradation determination of an offense is not a particularly provocative claim. (25)

    How much weight has this gradation level carried within the NCAA's adjudicative process? The 2018-19 bylaws list the "core penalties" associated with each violation level. (26) Level I and Level II core penalties include postseason play limitations, fines or returns of revenue, scholarship reductions, suspension of coaches, recruiting restrictions, and probation. (27) The 2018-19 bylaws allow for departure from the core penalties in cases of extenuating circumstances, and provide a list of additional penalties those deciding may consider--including vacation of records, individual or team, in which a student-athlete competed while ineligible. (28) For Level III violations, core penalties include termination of recruitment of a prospective athlete, institutional fines of up to $5000 (in most circumstances), reduction in the number of financial aid awards allowed, and public reprimand. (29)

    In determining which of the core penalties will attach to the violators, the decisionmakers historically have been asked to consider both aggravating and mitigating factors in their decision-making process. (30) Mitigating factors, which "warrant a lower range of penalties for a particular party," include prompt self-detection and disclosure, acceptance of responsibility, exemplary cooperation with the investigation and adjudicative process, and implementation of a system of compliance to ensure compliance throughout the institution. (31) On the other hand, aggravating factors such as repeat offenses, historical lack of compliance, lack of institutional control, intentional or blatant behavior, and lack of cooperation through obstruction might warrant a higher range of penalties for a party. (32)

    As was the case for the decision regarding the gradation of violations, the decision regarding type and extent of punishment is one that has historically endowed the decisionmaker with a substantial amount of power, discretion, and flexibility. Within the classes of Level I and Level II violations, the bylaws have generally granted decisionmakers significant autonomy in deter-mining how to punish the noncompliance--from a one-time fine to vacating a national championship, from restricting playoff contention to taking away a scholarship from a 120-athlete roster. The impact of the decisions these men and women have made in terms of gradation and...

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