In 1985 the Division I membership held a special convention to address rampant rule breaking, an idea gaining traction today. That convention lead to increased penalties and a crackdown highlighted by Southern Methodist University receiving the new “death penalty.”
But pendulums swing and after a rash of lawsuits focused on the enforcement process, particularly the major infractions process, the NCAA created a Special Review Committee chaired by former Solicitor General and BYU President Rex Lee. The Lee Committee, as it came to be known, suggested sweeping change in the enforcement process including:
- In-person delivery of Notice of Inquiry;
- Tape recording of all interviews with tapes provided to all parties;
- Creation of a summary disposition procedure;
- Initial hearing of factual disputes by an independent hearing officer with penalties imposed by the Committee on Infractions;
- Public access to at least some portion of the hearings;
- Appeal of penalties to a special committee;
- Public transcripts of hearings;
- Public explanation of actions taken regarding the infractions.
Many were adopted, including the creation of the Notice of Inquiry (although not hand-delivered), establishment of the summary disposition procedure, establishment of the Infractions Appeals Committee, and more detailed reporting of COI actions. But the two biggest recommendations, independent hearing officers and opening of hearings have not been adopted.
That list comes from the record of the House Judiciary Committee hearing on “Due Process and the NCAA.” Shortly after that hearing, the national office underwent a series of reviews that culminated in over 50 recommendations from James C. Duff, the Director of the Administrative Office of the US Courts. Duff’s recommendations centered around two major areas, increased enforcement and increased efficiency, and included:
- Hiring more staff, including a “reporter of decisions” to review infractions-related information before it was released to the public;
- Requiring individuals to appear before the COI to have a right to an appeal hearing;
- Allowing institutions to submit new information for reconsideration before appeal;
- Allowing schools to stipulate facts and procedural issues; and
- Public responses to statements made by involved institutions and individuals.
These recommendations were all adopted. In fact, submitting information to have a case reconsidered became so prevalent that it was later limited. Institutions were pushing through incomplete cases or holding back information in case it was necessary. Now additional information can only be submitted if it was not and could not have been discovered before the case was submitted.
More recently, Gene Marsh, former member and chair of the COI, published a law review article in 2009 calling for two major changes to the Committee on Infractions. One was a variation on an old theme: increasing the number of public members from two to four. The other was brand new: having committee members write dissenting opinions in cases where the decision was not unanimous.
Finally, the Board of Directors made procedural changes designed to clarify the roles of the involved parties. The changes are primarily designed to ensure a through understanding of the current process. That is backed up by the Enforcement Experience, so that media members would gain a better understanding of the process.
If you believe the enforcement process to be broken, it’s a discouraging story. What starts as a call for sweeping change has become a series of procedural refinements. If you believe the process works, then it’s an encouraging list. A basically working system is being refined to make it more efficient.
Of all the reform plans, Marsh’s strikes an attractive compromise. It increases the independent voice and public oversight on the committee while not taking decisions completely out of the membership’s hands. I doubt many dissenting opinions would be issued, but the possibility would require the committee to refine their reasoning and possibly even challenge their factual judgments.
The biggest lesson though is that ideas to reform the enforcement process are nothing new. Since modern enforcement of NCAA rules began at that special convention in 1985, the process has undergone numerous calls for change. And while not all of those calls have been heeded, the process has been updated almost as often.
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.