Case Study: An illustration of factors and issues that can affect the timeline for processing an NCAA infractions case. Read more
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By Michelle Brutlag Hosick
The public often accuses the NCAA of being a slow-moving bureaucracy, but in the high-profile world of enforcement, that image is not altogether accurate.
Lengthy cases are a rarity. In fact, the average length of time a case is under the control of the enforcement staff is shorter than 12 months, a goal set by late NCAA President Myles Brand and reinforced with additional staff, revised procedures and new business practices.
An enforcement staff member carries several cases at a time, often in various stages of completion. Many cases never reach the stage of official allegations filed with the Committee on Infractions and others are resolved quickly, especially if all parties agree with the facts. The staff is committed to being fair and thorough, but expediency is also a goal.
Occasionally, though, a case can extend to one year and beyond, complicated by factors that accompany any investigative process. Here are some of those factors.
NCAA investigators cannot subpoena witnesses or wield the power of discovery. They also have no authority to charge witnesses with perjury if they suspect dishonesty. Although the enforcement staff can charge student-athletes and individuals employed by an institution with unethical conduct for lying, that option is not available for individuals who fall outside the NCAA’s umbrella.
People with intimate knowledge of a violation often refuse to talk with investigators, avoid telephone calls or skip planned meetings. The NCAA can’t make everyone talk.
“That happens mostly with people who are not associated with the school directly and is often true with former student-athletes who have left the university,” said David Price, vice president of enforcement. “Many of the times they’ll be in professional athletics and just don’t want to get involved anymore. They are not obligated to. We try to get the institution to encourage them to talk to us. Sometimes we are successful and many times we are not.”
The threat of possible civil or criminal legal proceedings can also muzzle potential witnesses. If talking to an NCAA investigator could subject a witness to the court system, that person is less likely to be forthcoming.
Sometimes, even finding a witness can be a challenge. Angie Cretors, associate director of agents, gambling and amateurism activities, said a recent case required 18 months to secure an interview with a key witness.
Some NCAA investigators are fond of the “cold call,” a tactic in which an investigator knocks on the door of a potential witness without calling ahead. The cold call helps people put a face with a name and humanizes the image of the “big, bad NCAA.” Investigators say this method often yields the best, most honest information. They are careful not to approach people in situations that could cause embarrassment, like at a work event or with family.
But the cold call can be time-consuming.
Cretors once waited outside someone’s home for an entire day, waiting for an answer to phone calls and knocks on the door. The answer never came.
Witnesses often lie, and investigators have to weigh each person’s story based on documentation and other corroborating witnesses. But that can take time. Julie Roe, director of enforcement, said many factors play into whether a witness is believable, including the level of detail the witness provides, the existence of a possible motive or vendetta, and whether other witnesses back up a story. Sometimes witnesses are re-interviewed, or more witnesses are sought to refute or support a specific point. The leverage of a perjury charge isn’t available.
The clock keeps ticking.
Enforcement staff members aren’t opposed to more legal eyes on the process. The stakes are so high, legal counsel is almost necessary. But as more attorneys become involved, cases take longer.
Outside counsels – hired by institutions, coaches or other people involved in the case – often run their own practices. Interviews and other communications for NCAA enforcement matters must be worked in around the rest of the attorney’s practice. Price recalled a recent case in which his staff gave an attorney a deadline for responding to an inquiry, but the lawyer was tied up in a lengthy trial and needed an extension.
“He went to the Committee on Infractions, which granted the extension very properly, but it did extend the case,” Price said.
Enforcement staffers can be on a plane somewhere within 24 to 48 hours if necessary, but people working outside the NCAA umbrella don’t always have the ability to change their schedules so quickly.
Sometimes having more attorneys involved in the interview process can make an interview take much longer than expected. Roe remembered an interview she conducted with a witness that was attended by 10 people – mostly attorneys.
“We’ve had multiple cases where the involved individual might have more than one attorney,” Roe said. “It’s the same with schools. They usually have their in-house counsel and their external counsel involved.”
The function of attorneys – to defend their clients – also affects the process. Some investigators believe cases would be closed quicker if more of the people involved made the truth the highest priority.
More attorneys involved also translate to more sets of eyes that review documents before they are turned over to investigators. That lengthens the time investigators need to build a case – or close one.
A case often will begin with a shred of information about a single subject. Through the investigation it turns into something completely different, something more complicated and more difficult to resolve. Roe had a case that she believed was close to concluding when she asked a simple question at the end of an interview: Is there anything else you think we should know about?
“The case exploded,” she said. “We had to talk to 30 more people. It was almost like a separate case. We often invest our resources in one issue and another issue arises. We don’t count that as a separate case. If it bubbles up in the 11th month of an investigation, we will extend it and note why it took so long.”
Investigations are often structured strategically to gain the purest information possible. LuAnn Humphrey, director of enforcement for the Basketball Focus Group, said when enforcement staffers get a tip, they don’t go straight to the accused and ask them if they did it or not. They build a case first. She calls it the “circle the wagons” approach.
“You figure out what you need to prove or refute, and then you go about doing it,” she said. “We often don’t talk to the people directly involved with an allegation until the end.”
Structuring all those interviews and working around people’s schedules every step of the way can lengthen investigation time.
Most people on campus appointed to work with the enforcement staff to resolve an investigation are busy people already. When the NCAA calls, they have to make time to accommodate requests for interview arrangements, documents and analysis. Tom Hosty, director of enforcement, said the NCAA staff understands the burden they place on people.
“We come on campus, and we’re basically asking people with regular jobs and responsibilities to make time in their schedule to accommodate all of our requests,” Hosty said. “We ask a lot. It’s a significant undertaking and can take a long time.”
Some investigations are supported by dozens of boxes of documentation.
“It can be difficult to obtain documentation that an institution possesses simply because you’re asking for months of phone records or recruiting logs or records on 20 different prospective student-athletes,” Roe said. “We cast a fairly wide net, and it can take a while for institutions to compile it all.”
And if an institution does not possess a document – perhaps a third party like a phone company holds it – the wait can be even longer. Hosty said he’s worked cases in which an institution had trouble getting a phone company to turn its own phone records over to the institution that owned them.
The further you go back, the more difficult it can be.
“Sometimes, institutions keep records on campus for a year, and after that they are archived elsewhere or even deleted,” Hosty said. “Trying to recapture that can be time-consuming, especially if you’re working with an outside vendor.”
Throughout an investigation, enforcement staff members are transcribing, downloading and analyzing the information as it is compiled. Price said the time for downloading averages at least three to four hours for every hour spent in an interview. Once the information-gathering phase is complete, analysis begins. An investigator works with a director to determine what, if any, allegations will be made. Occasionally in complex or never-before-seen cases, Price will be involved in the process. Perhaps a team of enforcement staffers will review the information and make recommendations.
Once a decision is made, the investigator composes a notice of allegations to send to the school. That memo triggers a process that includes deadlines for response from both the institution and the enforcement staff (with the ability for extensions), culminating in either a summary disposition (the institution agrees with the allegations) or a hearing before the Committee on Infractions. That committee generally takes six to eight weeks after a hearing to issue its decision. An institution has the opportunity in some circumstances to appeal that decision to the Infractions Appeals Committee.
Price said that sometimes the process can be frustrating, but that’s just a natural reaction.
“You think you’re on to something, but you can’t get to it,” he said. “You know something has happened, but you can’t prove it. There are times when you have to just let go.”
Despite the obstacles, the enforcement staff is dedicated to its purpose. In 2009, the staff processed 24 major infractions cases. In 15 of those cases, the institutions and all involved parties agreed with the enforcement staff as to the facts of the case, and they were settled by summary disposition. Both figures are annual records.Last Updated: Jan 21, 2013