Quite a few people were angry last December when Ohio State used an obscure, almost never-before-seen procedure to get six football student-athletes reinstated for the Sugar Bowl. This article is not about the wisdom of that decision, the implications of Ohio State’s defense, or the value of the rule itself. My question is what is the implication of Ohio State finding this rule.
Backroom Dealing
Because most Americans are more familiar with the American court system than any other system of adjudication, the American court system is often the yardstick for the fairness of a process. That system is an adversarial system where an impartial judge oversees the efforts to two parties to present evidence that their side of the case is true. Essential to this is a general ban on ex parte communications, when the judge talks to one party without the other party present.
So when it appears that the adjudicator of a case has taken a more active role in discovering or presenting evidence for one side or the other, or that one party has presented evidence outside of the normal process, the charges of unfairness, corruption, or general “backroom deals” come quick. But the NCAA’s process of student-athlete reinstatement is not the same as the American court system.
As a case is developed, be it an enforcement case, waiver case, or student-athlete reinstatement case, the institution is often in constant communication with the NCAA. However much a school talks to NCAA staff members during any complicated, controversial, and/or time-sensitive case, the school would like to talk more frequently. As a result, when the case is finally delivered to the NCAA in its final form, the NCAA knows what’s in it and in some cases the school knows what the outcome is likely to be.
It’s easy to see then why compliance officers were among those angered (subscription req’d) by the Ohio State decision. One of two things happened in the case. On the one hand, maybe someone at the NCAA pointed out or suggested a hard-to-find exception. That leads to charges of favoritism and places on the NCAA a burden to show that any school would receive similar assistance in developing their case.
On the other hand, maybe Ohio State, with one of the nation’s largest compliance staffs, was able to devote more time and resources to the case than other schools would be able to, leading to a better result. It’s this possibility that raises the more important and interesting questions though for the NCAA and its members.
Lawyer Up
Arms races abound in college athletics. There’s a recruiting arms race, building the most lavish facilities, having the nicest charter jets and striking the best apparel deals to attract the most talented prospects. There’s an academic arms race, where the goal is to prevent APR penalties and allow coaches greater freedom in recruiting. There also appears to be a revenue arms race, a frantic sprint to develop more and bigger sources of revenue to support the other arms races.
Compliance is one the verge of becoming the subject of the next college athletics arms race. But it will not be the threat of major violations and painful sanctions that drives it. Like all arms races in college athletics, winning will drive this one as well.
A larger compliance staff prevents more violations, which helps you competitively by allowing coaches to always stay at the maximum allowable limit of whatever activity they’re doing. It means better waivers, stronger enforcement defenses, and faster reinstatement cases. It allows for more in-depth research into interpretations to allow coaches to get to their desired result, or at least as close as you can come.
All of this costs money. Salaries, facilities, software, etc. While even the most expensive compliance office is a small fraction of the most expensive sport programs, there’s still the risk of creating haves and have-nots. At stake here though isn’t just who has a nicer weight room or cooler shoes. At stake are more fundamental things like who is eligible to play.
Limits on Being Good
One of the last things you’ll ever see in the NCAA Manual is a section of Bylaw 11 limiting the number of compliance staff a school can hire. How could the NCAA possibly tell schools to run increasingly effective compliance programs (demanded by certification) while at the same time limiting their ability to spend money on that effort?
The best defense against an unacceptable level of competitive inequity between schools is the backroom dealing railed against by fans and compliance officers alike. Possibly the only way the NCAA could ensure a degree of fairness in this area is for the national office to take a more active role in cases, lest outcomes in cases be determined based on the ability of a school to hire a large staff and the ability to pay them well and provide them with the best tools.
It will be necessary though for the NCAA to get out of the uncanny valley of transparency the Association is currently navigating. More information would be needed, be it more updates on cases and investigations or the rather extreme measure of opening up the secondary infractions database to the public. Otherwise the level of scrutiny and criticism the NCAA is receiving right now will look like a parade in its honor by comparison.
The goal is not to eliminate the “backroom dealing.” That just places a greater emphasis on acquiring the necessary tools to navigate or even game a rigid and unhelpful bureaucracy. Rather, the goal is to do as much of the dealing in the front room, where everyone can see it and hopefully everyone can learn enough to need a little less of it as time goes on.
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.
