The NCAA’s Enforcement Experience seems to have been a big success. If the intent was to open up the infractions process enough that we can move beyond problems that aren’t actually there to the ones that are, job well done. Already you can see it in the quality and specificity of some of the recommendations made by the attendees. Mike DeCourcy recommends penalties carefully crafted to the sport to improve effectiveness. Stuart Mandel approved of President Emmert’s suggestion of new divisions between the types of violations, and offered the idea of a “czar of discipline”
Everyone has ideas about how enforcement should work, ideas that are hopefully better now after the NCAA offered a glimpse into how it works right now. But I’m not interested in how enforcement works. I’m interested in what happens when it doesn’t.
Consider the criminal justice system. The American criminal justice system is based on a few bedrock principles, one of which is that someone accused of a crime is innocent until proven guilty. That doesn’t mean much when the criminal justice system works. Given good police work, diligent prosecutors, competent defense, and a fair judge and jury, the truth generally comes out.
The presumption of innocence comes into play at the margins, where the system breaks down. When a prosecutor can’t prove conclusively that someone committed a crime, nor can the defense prove conclusively that the defendant is innocent. In those cases, the presumption of innocence says the defendant walks. If a defendant can find a technicality, he or she walks. If a defendant chooses to put up no proof of their innocence and the prosecutor cannot prove guilt, the defendant walks.
A lot of NCAA reform ideas focus on how enforcement (or student-athlete reinstatement, amateurism, academic eligibility, financial aid, etc.) should work when it’s working. And certainly there are areas of the NCAA that were poorly designed. Or to put it another way, even when they are working properly, they don’t work the way we want them too. But more often than not NCAA regulations and processes silently do what they were designed to do.
It’s when NCAA enforcement breaks that you hear about. When an investigation takes too long, when a penalty seems too severe or too lenient, when one school is treated differently than another school. And that’s where the toughest questions are when talking about improving the enforcement process. Whether you think about this as an engineering challenge or a philosophical problem, this is the toughest hurdle a reform idea has to get over.
Take for instance the cases where the circumstantial evidence is strong, but the witness is unreliable and there’s no smoking gun. When there’s a tie like this, the system is going to have to pick a winner.
This is not a binary choice. You could create a lesser charge, almost like an appearance or impropriety. Or you could continue the current practice: entrust a group of people to use their best judgement. By this point it is clear that many people have a problem with that sort of system.
But it’s not that such a system always fails or never works. Just what when it fails, it fails spectacularly. The engine seizes up, smoke billows out, and major repairs are necessary. Instead of shrugging it off as one of those things that happens, it becomes a major catasrophe.
The surest bet I can make about the NCAA’s enforcement procedure, no matter what reforms or improvements are made, is that it will break. The second surest bet I can make is that the closer to perfect we think the process is, the more shocking that failure will be. Unless we’re ready for it and we know what’s going to happen when enforcement breaks down.
That involves making hard choices. It may mean saying “If you can break this, you win” or “If this breaks, tough luck, you lose.” But failure has to be the starting point, not the afterthought. Before you explain how the NCAA enforcement process should work, you first have to explain how to get through the times when it doesn’t.
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.