As the working group reviewed the current enforcement structure and contemplated desired outcomes from a revised approach, what common themes emerged about what needed to change?
First, it was clear we needed to have stiffer and more predictable penalties, so that people who were doing the “risk-reward” calculation would think twice about whether it was in their interests to engage in bad behavior. Having penalty guidelines – and having the penalties that are in those guidelines be more severe than what we have now – was a good way of sending clear signals to people.
Second, how do we provide a more open and expedited process? We constantly heard from people who were frustrated about cases taking a year or longer to resolve, though at the same time most people don’t think about the NCAA not having subpoena power or the ability to compel testimony, both of which can slow everything down. We felt one of the things we had to address was the “time to closure.” By expanding the Committee on Infractions to as many as 24 members and creating multiple panels of 5-7 members from that “pool” that can adjudicate cases more frequently, we expect to be able to cut the “time to closure” in half, at least for the less-complicated cases. Openness is fostered by having clear penalty guidelines for infractions so that everyone knows what the consequences for violations will be for them. We also call for self-studies every few years to be provided to the Board by COI and the NCAA enforcement staff to ensure effective and consistent enforcement.
The third area or theme that emerged – and this was evident at the August 2011 Presidential Retreat was that everyone has to be part of the solution. There is a shared responsibility for upholding the values of the NCAA and the integrity of intercollegiate athletics. The Enforcement Working Group provided guidance and suggestive language regarding the requirements of shared responsibility for individuals, institutions, conferences and the NCAA staff, and some mechanisms that can be put in place, such as having compliance report outside of athletics, or having more regular audits of athletics operations.
In your mind, what are the most important aspects of the new structure?
Having four levels of violations is helpful because it allows us to distinguish between severe and significant in the new structure as opposed to simply major and secondary violations in the previous model. In reviewing past cases, we found that people who committed pretty serious violations sometimes ended up characterized as guilty of a secondary violation, which they tried to minimize to others as not important. So being able to more finely differentiate bad behavior was important. Obviously, the penalty guidelines are important in the new structure – not only the guidelines, but the penalties themselves, which when applied to past cases are demonstrably more severe.
I also think the idea of shared responsibility is important. If you think about society at large, most people never come into contact with the judicial system. What makes our social system work well is not a great enforcement system – it’s that most people obey the law and try to do the right things. So this issue of shared responsibility – that’s the piece that needs to be focused on next. That’s much bigger than enforcement alone – it’s about the cultural norms that we need to advance and embrace ourselves in order to comport ourselves in an appropriate way.
What is the difference between severe (Level I) and significant (Level II)?
Significant could be something like a systemic breakdown in a school’s eligibility certification allowing multiple student-athletes to compete while ineligible. Severe would be a booster being involved in providing gifts to entice a student-athlete to enroll at a particular school.
Violations can be “significant” when they have more than a passing consequence to the benefit of those who cheat. That can escalate to “severe” if the violations are much broader and deeper in terms of who is implicated and the kind of behavior those people engaged in to get the result they did.
The new structure holds coaches more accountable for their actions and those of their staff. Why?
Yes, the new structure holds head coaches more accountable for what happens in their program. What we settled on was not the presumption that the coach knows everything, but that the coach is responsible for the program and should counsel assistants about what is appropriate and have processes in place to monitor whether the assistant coaches are doing what they are assigned to do in an appropriate way. And unless the head coach can provide that kind of mitigating evidence if something happens, then he or she is just as culpable as the assistant coach who does something.
As the Enforcement Working Group sought membership feedback, what were the concerns?
One concern was case consistency due to the creation of multiple panels. But we made provisions for the chair of each panel and at least some of the members to be experienced members of the Committee on Infractions, so they’re not rookies. There may be new people on each panel but they’ll have experienced colleagues to work with.
Also, the entire Committee on Infractions is required to conference at least twice a year (at least once in person) to review cases across panels and check for consistency in terms of the way the guidelines are applied. We also call for an audit of the committee and outcomes of cases periodically to make sure people are following consistent and appropriate practices.
Coach accountability was the other area of concern. We expect head coaches to demonstrate that they’ve put practices and training and written materials in place that instruct their assistant coaches how to act. If they’ve done that it can become mitigating evidence that they shouldn’t be held accountable for what an assistant coach did. But head coaches have to have these things in place or the presumption will be that they didn’t care enough to set standards and take responsibility for their programs. If there is no guidance and an assistant goes rogue, then it’s partly the head coach’s fault and he/she should be held accountable.
The new structure focuses more on the Level I and II violations that most threaten the integrity of the collegiate model, correct?
That is precisely what the membership instructed us to do. They said stop focusing on the technical, petty stuff and focus instead on things that really go to the heart of undercutting the credibility, effectiveness and integrity of the NCAA and the affiliated institutions.
The core penalties (scholarship reductions, postseason bans, recruiting restrictions, etc.) haven’t changed from the previous structure. How does the new structure strengthen those penalties?
The guidelines for the penalties, whether they are financial, scholarship reductions or postseason bans, allow for much stronger punishment than the actual outcomes of past cases would suggest. We also asked the membership what penalties get people’s attention, and the list of what we call the “core penalties” reflects the membership view of most effective actions.
The new structure should expedite the process more often than not. However, the NCAA’s ability to prove/prosecute guilt hasn’t changed. What will make this new process more efficient?
We believe one component of the new structure that will help move things along is that a “failure to cooperate” can now in and of itself constitute an aggravated finding that leads to stiffer penalties than would have been handed down had there been full cooperation. While the NCAA still can’t subpoena or compel testimony, this component should serve as an added incentive for people to cooperate fully in the investigation process.