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Latest enforcement memo to conference commissioners

Sept. 22, 2017

TO: Collegiate Commissioners Association.

FROM: Jonathan F. Duncan, Vice President of Enforcement.

SUBJECT: Enforcement activity and advocacy.

 

The enforcement staff is always pleased to inform commissioners about the work of our department. This memorandum will report case-related data for 2017 and also address the enforcement staff's unique advocacy responsibilities.

Activity

During the 2017 calendar year, the enforcement staff will likely submit 115 allegations (across 27 cases) to the NCAA Divisions I, II and III Committees on Infractions. Most of those are Division I matters involving academic or recruiting violations. You can find more about the pipeline of cases here. We will also process more than 4,500 Level III/secondary violations.

One historical and recurring concern about the infractions process is the length of investigations. As shared previously, our staff pledged to reduce the duration of cases without sacrificing fairness, accuracy or collaboration. Having implemented a series of reforms, I'm pleased to report that the average length of a case has dropped by six months. We will work to continue that positive trend.

Incidentally, timely investigation and disposition of cases is not possible without hard work by volunteers on the COI. They give their time generously, and the enforcement staff appreciates their expert attention to allegations in all seasons, especially very busy times like these.

Another general concern of members was the absence of meaningful relationships between the enforcement staff and campuses. Again, we pledged to act. We took steps to bridge that gap and engage regularly with schools outside the context of a case. The results have been positive, and we will continue our outreach and development efforts.

Advocacy

Reporting general developments to conferences is important, but it is also important to explore the enforcement staff's role in analyzing facts and presenting cases to the COI. More specifically, it is important to ask whether members of the enforcement staff are advocates. And if we are, for what/whom do we advocate?

During an investigation, most "at-risk" parties retain one or more lawyers. We understand and expect that. We also understand that lawyers in most states have a professional responsibility to be zealous advocates. While mindful of the NCAA's cooperative principle, lawyers sit alongside a specific individual or institution to advance arguments and urge outcomes on behalf of that paying client. No problem. But members of the enforcement staff are not similarly situated to these attorneys. Our role is and should be different.

Although enforcement staff members are objective, factually neutral and unlike retained attorneys, we are not disinterested. We are not detached from the proceedings. We are advocates, but not like others in the investigation or the hearing room.

Our role is to advocate for the Collegiate Model and against behaviors that compromise it. After completing an investigation and exhausting layers of internal quality control, we advocate for the allegations lodged – not to secure particular penalties or notch convictions, but because we believe the allegations and levels are accurate. We advocate for full consideration of all facts relevant to those allegations. And finally, we advocate for fairness, including fair treatment of institutions or individuals involved in potential violations – even and especially when they disagree with us. In all of this, however, we don't advance our own interests. As legislated in NCAA Bylaw 19.01.1, our focus is on "the common interests of the Association's membership and the preservation of its enduring values."

So when the enforcement staff reports raw case-related data, we see more than numbers. We understand the impact of each case and each allegation on individuals, institutions, conferences and the broader Association. We allocate resources and make decisions based on our understanding of the members' priorities and in furtherance of the Association's enduring values. We will advocate for those.

As always, do not hesitate to contact me with any comments, questions or observations.