From Off the Bench: The Potential Role of the U.S. Department of Education in Reforming Due Process in the NCAA

• Author: Joshua J. Despain
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Brigham Young University, 2011
• Pages: 1285-1326

From Off the Bench: The Potential Role of the U.S. Department of Education in Reforming Due Process in the NCAA Joshua J. Despain  ABSTRACT: The National Collegiate Athletic Association (“NCAA”) is based on such ideals as amateurism, fairness, and healthy competition, and ensures compliance with those principles with a formalized system of investigation, infraction hearings, and penalties. Legal minds, as well as the direct participants in the college sports industry, have asserted that the NCAA’s disciplinary proceedings deny constitutional rights, and have tried claiming those rights before various judges across the United States. Since the U.S. Supreme Court decided NCAA v. Tarkanian in 1988, however, the NCAA is no longer a state actor, and not subject to the guarantee of due process in the U.S. Constitution. Though the NCAA has reformed and adapted its procedures, many student-athletes and others demand more. Two recent proposals in the U.S. House of Representatives, H.R. 2903 and H.R. 3545, require among their various provisions that any “athletic association” must enforce its bylaws with “any other due process procedure the Secretary [of Education] determines by regulation to be necessary.” Student-athletes, coaches, and their supporters have never looked to the Department of Education (“DOE”) before to correct the wrongs they perceive in the NCAA. This Note will show why, in the wake of failures in litigation and previous legislation, enhancing the role of the DOE is a viable option for NCAA reformists.  J.D. Candidate, The University of Iowa College of Law, 2015; B.A., Brigham Young University, 2011. Thank you very much to Brian Porto, Professor of Law at the Vermont Law School, who helped me arrive at this idea. I would also like to thank Jerold Israel, Alene and Allan F. Smith Professor of Law Emeritus at the University of Michigan Law School; Rodney Uphoff, Elwood Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and Member of the NCAA Division I Committee on Infractions; Daniel Matheson, Lecturer of Recreation & Sports Business at the University of Iowa and former NCAA Associate Director of Enforcement; and Monica Mims, Associate Director of Compliance at the University of Iowa Athletics Department, for providing their input and guiding me along the way. I also want to thank the editors and my fellow writers of the Iowa Law Review. And thanks most of all to my wife, Erin, and our children, Allisyn, Patrick, and Maggie. 1286 IOWA LAW REVIEW [Vol. 100:1285 I. INTRODUCTION ........................................................................... 1287 II. THE HISTORY OF DUE PROCESS IN THE NCAA ........................... 1290 A. O VERVIEW OF A THLETIC D UE P ROCESS ................................... 1291 B. E ARLY NCAA D UE P ROCESS ................................................... 1295 1. Origins of the NCAA, the Committee on Infractions, and the Enforcement Staff ......................................... 1295 2. Criticisms Against the NCAA’s Due Process Before Tarkanian ..................................................................... 1297 C. “S HARK ” R EPELLANT : NCAA V. TARKANIAN ......................... 1299 1. The Judiciary Shifts the State Actor Standard ........... 1301 2. Game Changer for Tarkanian ..................................... 1302 D. D UE P ROCESS IN THE NCAA I MPROVES —B UT BY I TS O WN R ULES ................................................................................... 1304 III. LITIGATION AND LEGISLATION: INACTION FOR NCAA DUE PROCESS ...................................................................................... 1310 A. S TUDENT -A THLETES C ONTINUE TO T EST THE NCAA .............. 1311 B. L EGISLATURES TO THE R ESCUE ? ............................................. 1313 C. H.R. 2903 AND H.R. 3545: C ONGRESS I NVITES THE DOE TO R EFORM ................................................................................ 1315 IV. THE DOE CAN SOLVE THE NCAA’S DUE PROCESS PROBLEMS .. 1318 A. T HE DOE C AN P ROTECT D UE P ROCESS , N OT J UST E QUAL P ROTECTION ......................................................................... 1319 B. W ITH H.R. 2903 OR H.R. 3545, THE DOE C AN C HANGE NCAA D UE P ROCESS ........................................................................ 1321 C. T HE DOE C AN B E AN E FFECTIVE V OICE .................................. 1324 V. CONCLUSION .............................................................................. 1325 2015] FROM OFF THE BENCH 1287 I. INTRODUCTION In October 2013, the National Collegiate Athletic Association (“NCAA”) finally meted out its punishment to the University of Miami (“Miami”) after a two-and-a-half-year investigation of “recruiting inducements and extra benefits” in the school’s athletic program. 1 The penalties consisted of a three-year probation, a decrease of 12 scholarships for the football and basketball teams, and consequences for other sports, in addition to the punishments Miami already self-imposed. 2 Despite this severity, the NCAA would likely have imposed even more, if not for getting in its own way. 3 In 2011, Nevin Shapiro, who a federal court later sentenced to 20 years in prison for his $930 million Ponzi scheme, 4 wrote to the NCAA from his jail cell to report his previous involvement as a Miami booster in offering improper benefits to Miami student-athletes, coaches, and prospective student-athletes. 5 After uncooperative witnesses held up its investigation, the NCAA Enforcement Staff resorted to paying Shapiro’s attorney to leverage his federal bankruptcy depositions and obtain information for the NCAA’s own purposes. 6 Regardless of the potential abuses, investigators purposefully evaded legal advice when they involved Shapiro’s attorney in the name of a resourceful solution to their beleaguered investigation. 7 This and other 1. NCAA DIV. I COMM. ON INFRACTIONS, UNIVERSITY OF MIAMI PUBLIC INFRACTIONS REPORT 1, 63–74 (2013), available at http://hurricanesports.com/fls/28700/files/MiamiReport NCAA.pdf. 2 . KENNETH L. WAINSTEIN ET AL., REPORT ON THE NCAA’S ENGAGEMENT OF A SOURCE’S COUNSEL AND USE OF THE BANKRUPTCY PROCESS IN ITS UNIVERSITY OF MIAMI INVESTIGATION 63, 67 (2013), available at http://www.kmbc.com/blob/view/-/18593534/data/1/-/8qjf7s/-/ NCAA-report-pdf.pdf; see also Sanctions Levied Against Miami (Fla.) , NCAA (Oct. 23, 2013, 4:11 PM), http://www.ncaa.com/news/ncaa/article/2013-10-23/sanctions-levied-against-miami-fla. 3. Steve Eder, After Long N.C.A.A. Inquiry, Miami Loses 12 Scholarships , N.Y. TIMES (Oct. 22, 2013), http://www.nytimes.com/2013/10/23/sports/miami-avoids-further-bowl-ban-in-ncaapenalties.html (quoting an Ohio University professor who suggested that because of the NCAA’s mistakes, Miami had a “trump card” against more severe penalties). 4. United States v. Shapiro, 505 F. App’x 131, 131–32 (3d Cir. 2012). 5. WAINSTEIN ET AL., supra note 2, at 10. Shapiro recounted to Yahoo! Sports that he spent millions of dollars on Miami athletes to provide cash; travel expenses; entertainment at restaurants, mansions, yachts, nightclubs, and strip clubs; bounties for injuries to opposing players; and even prostitutes and an abortion. Charles Robinson, Renegade Miami Football Booster Spells Out Illicit Benefits to Players , YAHOO! SPORTS (Aug. 16, 2011, 5:37 PM), http://sports.yahoo. com/news/renegade-miami-football-booster-spells-213700753--spt.html. 6. WAINSTEIN ET AL., supra note 2, at 7, 34. 7. Id. at 15, 32–37, 50. 1288 IOWA LAW REVIEW [Vol. 100:1285 NCAA missteps 8 led Miami to remark “we have suffered enough.” 9 Even with this suffering and the NCAA’s self-suppression of evidence originating from the bankruptcy depositions, 10 the NCAA censured Miami. 11 By far, the most notable NCAA investigation concerned the Pennsylvania State University (“Penn State”) scandal that broke in 2011. The tragic crimes that former assistant football coach Jerry Sandusky committed, 12 and the football culture that allegedly hid such crimes from view, 13 were unlike anything the NCAA had faced before and provoked the NCAA’s uncommon reaction. 14 The NCAA reacted by circumventing ad hoc its own internal mechanisms for investigation and enforcement 15 and made an about-face from its original decision to let the criminal justice system run its course. 16 According to many observers, anything beyond a proportionate response to the actual violation of NCAA bylaws was clearly outside the NCAA’s realm and 8. See, e.g. , Motion to Immediately Conclude Case Number M362 as it Relates to the University of Miami at 44, No. M362 (NCAA Committee on Infractions Mar. 29, 2013) (protesting the NCAA’s vouching for Shapiro before a judge in his criminal case); WAINSTEIN ET AL., supra note 2, at 21 n.35 (citing the NCAA Enforcement Staff’s $4500 transfer to Shapiro’s prison commissary account to pay his phone bills); Miami Athletics, University Statement on Notice of Allegations , U. MIAMI (Feb. 19, 2013), http://www.hurricanesports.com/ViewArticle.dbml? ATCLID=206465483 (identifying flaws in the NCAA’s investigation, including giving too much credence to Shapiro and neglecting to interview a former athletic director). 9. Miami Athletics, supra note 8 . It should be noted that Miami attorneys were aware of this arrangement with Shapiro’s attorney from the beginning, although they had misgivings from the onset and were never thoroughly apprised of what the Enforcement Staff was learning. See WAINSTEIN ET AL., supra note 2, at 13–14, 23, 37. 10. NCAA DIV. I COMM. ON INFRACTIONS, supra note 1, at 1–2. Of the incriminating evidence that Yahoo! Sports revealed in its August 2011 article, the NCAA’s infractions report notes cash gifts, student-athlete visits to Shapiro’s home, his yacht, and Miami restaurants, nightclubs, and strip clubs, among many other findings, but omits any mention of reports of paying for prostitutes, bounties, or an abortion. Compare NCAA...