If it Ain't Broke, Don't Fix It: an Examination of the Ncaa Division I Infractions Committee's Composition and Decision-making Process

• Publication year: 2021

89 Nebraska L. Rev.437. If It Ain't Broke, Don't Fix It: An Examination of the NCAA Division I Infractions Committee's Composition and Decision-Making Process

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Josephine (Jo) R. Potuto and Jerry R. Parkinson (fn*)

If It Ain't Broke, Don't Fix It: An Examination of the NCAA Division I Infractions Committee's Composition and Decision-Making Process

TABLE OF CONTENTS

I. Introduction.......................................... 438

II. Composition of the Infractions Committee............. 440
A. Role of Infractions Committee and NCAA Structure ......................................... 440
B. Membership Requirements........................ 441
1. Individual Membership Qualifications.......... 442
a. Time Demands............................. 442
b. End-Line Professional Responsibility ....... 444
2. The Infractions Committee in Its Entirety...... 445
a. Athletics Experience.......................446
b. Faculty Presence...........................447
c. Legal Knowledge and Skills ................448
d. Campus Presence..........................449
e. Additional Factors.........................449
C. Term Limits ...................................... 451

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D. Independence, Neutrality, and Infractions Committee Composition...........................453

III. Infractions Committee Decision-Making Process.......461

IV. Conclusion............................................469

I. INTRODUCTION

The National Collegiate Athletic Association (NCAA) Division I Committee on Infractions (Infractions Committee)(fn1) hears and resolves cases involving institutional culpability for major violations of NCAA rules.(fn2) Its work is among the most important done by any NCAA committee, cabinet, or council.(fn3) Its decisions have substantial import for institutions and involved individuals(fn4) alleged to have committed violations. Its decisions also have substantial import for other institutions looking to the committee to uphold competitive equity and to deter cheating and other behaviors injurious to student-athletes and detrimental both to individual institutional integrity and to the public perception of varsity athletics as part of the greater university. The Infractions Committee is one of the most public "faces" of the NCAA, with its work regularly tracked and reported by media outlets. What it does, and how it does it, has been the subject of numerous law review articles.(fn5) It is a focus of litigation against the NCAA-by media

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outlets seeking its records,(fn6) by coaches and other involved individuals challenging its decisions,(fn7) and by boosters and others claiming injury to reputation.(fn8) With such high stakes, it matters a great deal who serves on the Infractions Committee and how they conduct the committee's business.

Since at least the time when Jerry Tarkanian sued the NCAA,(fn9) there have been calls for changes to NCAA enforcement and infractions processes.(fn10) The particular focus of this Article is the composition

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of the Infractions Committee and its consensus decision-making process. We conclude that the current committee structure and processes effectively serve the purposes and interests of NCAA member institutions and are better suited to meet all of the roles and responsibilities of the Infractions Committee than any proposed model we have seen.

The authors of this Article both recently completed nine years of service on the Infractions Committee. One (Potuto) chaired the Infractions Committee and also served on an NCAA Special Internal Review Committee that worked with a consultant whose charge was to evaluate and make recommendations regarding the enforcement and infractions processes.(fn11) The other (Parkinson) was the Infractions Committee's first coordinator of appeals and also chaired a subcommittee whose recommendations regarding committee penalties were presented to the NCAA Division I Board of Directors.

II. COPMPOSITION OF THE INFRACTIONS COMMITTEE

A. Role of Infractions Committee and NCAA Structure

To be effective, the Infractions Committee must command the confidence of member institutions, their staffs and constituencies, as well as NCAA staff. While the committee must work with sensitivity toward and in cooperation with a member institution appearing before it, its work ultimately must be independent of the institution and its conference and also independent of NCAA senior administration, NCAA enforcement staff, and other NCAA committees and the staffs assigned to them.(fn12) Moreover, the Infractions Committee must conduct its business without bias and uninfluenced by criticism from media reports and otherwise.

Fundamentally, the job of the Infractions Committee is to exercise reasoned and informed judgment in hearing and deciding cases and in imposing penalties. Critical components of such reasoned and informed judgment are that the Infractions Committee adheres to its role within NCAA processes as adjudicative, not legislative; that it decides cases and imposes penalties as prescribed by NCAA bylaws that govern its operations; that its members know, understand, and appropriately apply bylaws that set forth substantive standards governing conduct; that its decisions are based exclusively on the record before

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it; that it acts with neither favoritism toward nor animus against particular institutions or individuals; and that it assesses violations and penalties with an understanding of how they influence the world of intercollegiate athletics, competitive equity among institutions, and rules compliance.

Through adoption of bylaws, NCAA member institutions set the boundaries and rules by which the Infractions Committee operates, define what constitutes violations, dictate the type and scope of penalties to be imposed, articulate the processes by which members are appointed to the Infractions Committee, and establish the criteria for membership on it. As with any legislative authority, member institutions may change the infractions process prospectively by amending or repealing current bylaws or adding new ones. What they cannot do is intervene to influence the outcome of any particular infractions case. The prime ways in which member institutions assess the work of the Infractions Committee are by review of its published reports,(fn13) by the caliber of its individual members, and by how suited the Infractions Committee is, taken as a whole, to perform the work assigned to it.

B. Membership Requirements

Membership requirements are both formal-described in the black letter of NCAA bylaws-and informal. Formal requirements may be stated quickly. There are ten members of the Infractions Committee.(fn14) of these, eight members hear and decide cases (the hearing committee) and two members are appointed specifically as coordinators of appeals(fn15) to represent the Infractions Committee in proceedings before the Infractions Appeals Committee.(fn16) At least seven committee members "shall be at present or previously on the staff of an active member institution or member conference" of the NCAA.(fn17) These seven members may not all be from the same NCAA subdivision of Division I.(fn18) At least two committee members, but no more than three, must be "public" members.(fn19) Public members not only are unassociated

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with a member university or athletics conference, but they also may neither represent coaches or athletes nor be affiliated with a professional or similar sports organization.(fn20) At least two positions on the committee must be held by men, and at least two must be held by women.(fn21) Finally, members of the Infractions Committee are term-limited out after serving three three-year terms, either on the hearing committee or as a coordinator of appeals.(fn22)

In addition to these formal membership requirements, the Infractions Committee operates pursuant to informal requirements that are critical to the functioning and public perception of the committee. These requirements cover two bases. One set of requirements focuses on the experience, background, stature, and work habits of each individual member of the Infractions Committee. The other set of requirements focuses on the Infractions Committee in its entirety to assure a balance of perspectives and a range of relevant experiences.

1. Individual Member Qualifications

Clearly, members of the Infractions Committee must know and understand NCAA bylaws and processes.(fn23) They also must understand the role of the Infractions Committee as delineated in those bylaws and adhere to that prescribed role. But service on the Infractions Committee demands far more.

a. Time Demands

Infractions Committee service entails considerably more time than any other NCAA service. Annually there are six hearing weekends, typically with two cases heard during each weekend. Getting "up to snuff" on all the materials in the record likely entails at least twenty hours of preparation time. When a case involves a large number of violations, and especially when a coach or other involved individual is

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at risk of findings of commission of violations, preparation time easily may exceed forty hours.(fn24) Each case also entails additional time associated with post-hearing deliberations and the production of an infractions report. Production of the report also is time-intensive.(fn25)

In addition to cases adjudicated by hearing, the...