The decision of the NCAA Student-Athlete Reinstatement Staff to reinstate Cam Newton’s eligibility with no penalty produced a response that was loud and clear. Not one, not two, but four commissioners of major conferences have spoken out. All disagreed with the decision itself and/or expressed worry about the potential impact of the decision going forward. That has prompted a response from NCAA President Mark Emmert stating that the NCAA membership will review the recruiting rules.
I don’t share some of the doom and gloom regarding the impact of the decision going forward. Case precedent, NCAA or otherwise, extends only as far as its facts. And here, the facts are that no money changed hands, the student-athlete did not know about the activity, and the student-athlete did not enroll at the institution where the solicitation occurred. Case precedent can always be extended to logically similar cases, but that takes additional decisions, each of which is a chance to stop a trip down the slippery slope.
There appears to be an unstoppable momentum behind some change though. That change could take one of three forms.
New Reinstatement Guidelines
It’s important to note that a violation was committed and it did impact Newton’s eligibility. It just did not impact his eligibility as much as some wanted. The Committee on Student-Athlete Reinstatement (which oversees the NCAA staff that made the decision) could establish stricter penalties, which would likely include a requirement that the student-athlete be withheld from at least some competition.
Slight Legislative Change
Legislation could be proposed that would address the exact situation in the case. Specifically, Bylaw 12.3.3, the bylaw cited by the SAR staff, could be editted to read something like this:
12.3.3 – Athletics Scholarship Agent.
Any individual, agency or organization that represents a prospective student-athlete or his or her parent(s), guardian(s), or immediate family for compensation in placing the prospective student-athlete in a collegiate institution as a recipient of institutional financial aid shall be considered an agent or organization marketing the individual’s athletics ability or reputation. (additions in bold)
Major Legislative Change
An alternate new version of Bylaw 12.3.3 may read very similarly, but would have a much greater impact:
12.3.3 – Athletics Scholarship Agent.
Any individual, agency or organization that represents a prospective student-athlete or an individual associated with a prospective student-athlete for compensation in placing the prospective student-athlete in a collegiate institution as a recipient of institutional financial aid shall be considered an agent or organization marketing the individual’s athletics ability or reputation.(additions in bold)
The phrase “individual associated with a prospective student-athlete” has a defined meaning, in men’s basketball at least, from the interpretations issued by the Division I Board of Directors in November 2009. It includes parents, guardians, family members, coaches and anyone who is associated with the prospect as a result of their athletics ability or reputation, or participation in men’s basketball.
Along with the amendment to the bylaw, that portion of the interpretation could be removed and placed in a separate interpretation (or incorporated into an actual bylaw) applicable to all sports. It would not however expand the new men’s basketball recruiting regulations to all sports, since they still mention men’s basketball in the interpretation and the relevant legislation.
None of these are mutually exclusive, and all three exist on a continuum with many other options in between. I have no idea what the Legislative Council, Board of Directors, or Committee on Student-Athlete Reinstatement will do. What I do know is that it would be foolish to act hastily.
The Board of Directors is empowered to propose and adopt legislation that is of an “emergency” or “noncontroversial” nature. An emergency exists when:
- Significant values or harm are at stake; and
- The use of the regular legislative cycle is likely to cause undue hardship to the Association or the Division I membership because of the delay in its effective date.
While preventing pay-for-play is a significant value in the NCAA rules, it’s hard to see the undue hardship that is suffered between now and January 2012, the next opportunity to pass brand new legislation if it travels through the regular legislative cycle. Especially if we’re talking only about the limited issue of not suspending student-athletes who didn’t know that an institution they didn’t go to did not give their parents any money.
Legislation is noncontroversial if it meets the following criteria:
- Broader consultation and debate are unlikely to improve the proposal in any substantial way.
- Significant disagreement or alternative points of view will not be generated.
- Such proposals do not have a significant impact (unanticipated consequences, undesirable precedent) on existing legislation or proposed legislation.
Considering the options for dealing with this issue, there’s strong evidence that more debate will lead to a better decision and there are more alternatives than even the ones above. And considering the proposal is designed to strength penalties in cases where a prospect or student-athlete might not even know a violation is occurring, it seems unlikely that all consequences will be anticipated in such a short time.
For instance, imagine if a high school coach could harm a student-athlete’s eligibility at every institution just by discussing a pay-for-pay plan with a booster at one school, regardless of whether the prospect knows about it. Third parties gain a valuable tool to dictate where prospects enroll, and gain allies in boosters who have control of a stick, in addition to the existing carrots, to entice prospects to enroll at their favorite institution.
The idea of a student-athlete being shopped to colleges by parents, coaches, or anyone else is certainly outrageous, to use President Emmert’s words. And the notion of significant punishment for even attempted violations of the recruiting and amateurism legislation has merit. But just like the July recruiting period in men’s basketball, there are too many moving parts in this area to use a blunt object. Another year-long study with legislation to be voted on over a year from now won’t please many commentators. But it’s the best way to close a loophole without opening another.
The opinions expressed on this blog are the author’s and the author’s alone, and are not endorsed by the NCAA or any NCAA member institution or conference. This blog is not a substitute for a compliance office.
About John Infante
The opinions expressed on this blog are the author’s and the author’s alone, and are not endorsed by the NCAA or any NCAA member institution or conference. This blog is not a substitute for a compliance office. If you’re a coach, do not attempt to contact the author looking for a second opinion. If you’re a parent, don’t attempt to contact the author looking for a first opinion. Compliance professionals are by their nature helpful people generally dedicated to getting to the truth. Coaches should have a bit of faith in their own, and parents should talk to one directly.
The NCAA needs to do whatever it takes to restore faith in your organization. The Cam Newton case has undermined everything the NCAA is supposed to stand for in theory. Shame on you for allowing this to happen. I’m 57 years old, have children who competed at college level, my husband wears a championship bowl ring, and we have daughter who is a college level coach. To tell you I am disappointed in your decision is such an understatement. Our family has always been college ball lovers. We are sincerely considering switching allegiance to the NFL. If we spend our dollars there, we won’t have the expectations we had when the NCAA was supposedly governing the schools we supported.
College football is tainted! I will not be watching the National Championship! What a joke it has become!
By the way! I have a son who is a quarterback! I put him on E-Bay to whichever school is the highest bidder! He doesn’t know any thing about this though! So we all know he is good to go because of your so called loophole!
You have the wrong scenario, as nothing have been proven that Auburn offered Cam or Cecil Newton anything. So he did not go to the highest bidder like you are suggesting.
It only revealed that Cecil Newton made the offer to Mississippi State, but nothing is proven that Auburn was involved at all.
I think you are jumping to some conclusions that have not been proved nor have any accusations been thrown against Auburn.
If you want to form your own opinion about this thing without any proof then that is certainly your right, but it still doesn’t make it right.
I have my own suspects like everyone else, but if Cam Newton is not guilty then I think we will all have done a great injustice to Cam Newton and Auburn. Time will tell of his guilt or innocence, but it is not up to us to make that determination until such time as we know the full truth.
Most of the Ant-SEC or Anti Auburn fans are coming against Newton wanting him to fail and most are all but ready to sentence him.
Many of this Anti Cam Newton talk is motivated by their hate or jealousy of the SEC and they hope the SEC will fall. But, I hope you are not one of those guys.
I don’t understand your proposed “Slight Legislative Change.” Let me explain. Rogers, the professional agent, did not represent the student athlete (Cam Newton), but instead represented Cam Newton’s father (“Dad”). Your proposed change seems to verify that is the correct interpretation of 12.3.3 as currently written.
However, the NCAA said in its press release that 12.3.3, and presumably 12.3.1 was violated. After reading the original press release, I assumed that the NCAA must be interpreting the word “student athlete” to include Dad, or must be interpreting the term “individual” to include Dad (such that Dad was an agent along with Rogers). Absent one of those 2 interpretations, I don’t see how Newton violated anything in the first place. In other words, I can’t see how C Newton had an agent (and thus violated the rule) unless Dad was the agent or unless Dad’s agent is attributed to C Newton under an expansive reading of “student athlete.”
On a side note, and absent an agent’s involvement, I don’t see anything that prevents “attempts” to be compensated. 12.1 and 12.3 all prevent the receipt of compensation, but nothing seems to prevent asking for compensation. What am I missing here, and what rule did C Newton violate to be declared ineligible in the first place?
What process is there ? I don’t remember any case the ncaa has against any school governed the same way on the same issues. It picks and chooses who to punish and who not to regardless of bylaws. The Newton thing is a feel good story by the ncaa because of how the school he plays for was treated in 04′ going undefeated and getting left out. SOMEBODY needs to govern the ncaa and do it soon.
So in the future we just have parents sign agents to represent them as they represent the sons or daughters and thats ok with the NCAA.
Auburn gets away with something that in the past has destroyed whole programs for years. the NCAA should be disbanded and a new organization constituted in its place. You guys are too off to fix.
This smells of the NCAA expert law partners, like Marsh, who work for the NCAA and then sell their services and connections as insiders to crooked programs like AU. Corruption of the NCAA.
How and why was it orchestrated for Cam Newton to be ruled ineligible after the season for a few hours between practices? If he was ineligible due to an incident that occurred prior to the season, when was it determined that he would not be ruled ineligible until after the season ended? Is the option of momentary ineligibility available to all the other member institutions? If I were in the compliance department of a University, I too would like to schedule a player’s momentary ineligibility after I knew he would be ruled eligible so as to not miss a game or any practice time. I have to assume this “cooperation” is available to our member institutions now. Does this help you now understand why I and the rest of the nation is laughing at the NCAA?
Will Newton and Auburn give up their title and a couple of years like USC and Rggie Bush. Does the NCAA ever learn. NCAA plays favorites and that is why I am boycotting the so called national championship this year. SHOW THE NCAA THE MONEY!!!!!!!!!!!!!!!
I’ve got to be honest, I think this is one of the worst articles I’ve ever read analyzing a legal rule…and this is coming from a lawyer, so I have the experience.
John acts as though the current bylaw was too narrow in that it did not have the proper language to cover the Cam Newton situation because it was missing, at a minimum, the phrase “or his or her parent(s), guardian(s), or immediate family.”
So, John, let’s get this straight, what you’re saying is that the current bylaw construct was too narrow to pickup Cam’s parents, correct? The current bylaw, which prohibits “any INDIVIDUAL,” I suppose doesn’t count because there’s no legal “agency” relationship between Cam and his dad? Is this really your position? This narrow application of the finding of an agency relationship, where a parent is found to be soliciting cash on behalf of his son, is wholly inconsistent with the USC and Reggie Bush findings. Please reconcile.
So to further elaborate for our insightful and deep thinking friend, John, the NCAA findings against USC concluded that an agency relationship existed between Reggie’s parents and the would be sports agents in December 2004 based on some preliminary discussions. No signed contract. No verbal agreement that the would be agents would represent Reggie. In fact, the entity wasn’t even formed yet!! And no proof that Reggie knew of this relationship. And, most importantly, no consideration had yet changed hands.
This finding of an agency in December 2004 is important because it enables the NCAA to declare Reggie Bush inelgible for the BCS championship game in January 2005, so that USC can be stripped of the championship. However, under the “Cam Newton Doctrine” we’ve just learned of, there’s no agency until an actual express agreement is in place (see your narrow interpretation of the Bylaws discussed above). But even more, since the NCAA failed to prove Reggie’s knowledge of any “agency relationship” until well after the conclusion of the 2004 season, then, John, how does this ruling square with the Cam Newton ruling?
Let me be clear. Your antics from another post of struggling with the concept of consistency…”moral consistency,” “fact differences,” “consistency in rules,” etc., etc. is just that. Antics. Believe me. Courts are able to wrestle – with seemingly little difficulty – with this concept of consistency that seems to have you flummoxed. And you can try and cast some smoke and mirrors, but I can assure you that there are many people, more influential than you and with a better pedigree (no sub top 25 law school, if you know what I mean
), that are more than capable of wrestling with these inconsistent rulings. You, see, there are some making the argument that the NCAA is being used in an anticompetitve manner as an artifice to tilt the game in favor of select schools – namely, the SEC and your darling Big 10.
So, while you post dribblings on how hard it is to define “consistency” with less intellectual vigor than a first year law school class, there are real minds, looking to take down the NCAA. And when called to answer, delving into some tirade about what is the meaning of consistency just ain’t going to cut it.
I haven’t even approached the issue of due process, which I think most are aware of a pretty solid case of it being denied in the USC situation, and is an even easier target for a court to rule on. But I’ll tell you what, I’m betting that others – even in the NCAA – will be able to rise above struggling with the “what is consistent” issue that has you all in knots. I’m willing to wager that Todd McNair takes home millions from the NCAA either by virtue of a court ruling or an “undisclosed stettlement.” I’m guessing the latter, which is why I said people within the NCAA will be able to see the light of their inconsistent application of rulings (not to mention, severity of penalties).
So, you care to take the bet, big John?