Daily Compliance Item- 2.10.17- Current Event

NCAA finding immunity useful in effort to crack difficult investigations

USATODAY.com

Despite the typical chorus of criticism for the NCAA’s enforcement arm — most recently over North Carolina’s long-running academic fraud case — it would be difficult to fault its level of activity. The NCAA enforcement staff has submitted 30 cases to the Committee on Infractions since Jan. 1, 2016 with seven currently in the processing phase and 59 more currently being investigated.

During that time, the NCAA has levied penalties against Notre Dame football, Missouri basketball, Southern Miss basketball and former basketball coach Donnie Tyndall while also issuing allegations against Louisville basketball and Mississippi football, which have not yet been adjudicated.

Among the most interesting trends in those recent cases has been the use of “immunity” as a means for the NCAA to collect information during investigations. While it’s long been written into the NCAA’s bylaws as a tool for enforcement, it has gotten significantly more attention recently due to its usefulness in cracking some high-profile cases.

The NCAA used the testimony of a former assistant, who was granted immunity and still works in college basketball, to issue Tyndall a 10-year ban from coaching. Investigators also spoke with former Louisville recruits at other schools to help corroborate allegations that a former staff member had arranged for strippers and sex acts on visits, and according to a Yahoo! Sports report, offered immunity to SEC players at other schools who had been recruited by Ole Miss in exchange for information on potential violations.

Similar to the U.S. legal system offering freedom from prosecution in exchange for helpful information, NCAA vice president of enforcement Jon Duncan said it’s a valuable tool but stopped short of citing it as the primary reason for a recent uptick in activity.

“We track a lot of things, but we don’t track historical use of immunity,” he told USA TODAY Sports in a wide-ranging interview last month on NCAA enforcement issues. “We use it as appropriate now; I don’t know if it’s more or less. But it is effective.”

Though the NCAA has no subpoena power to compel people outside of its jurisdiction to help investigations, coaches and athletes are bound by rule to speak with the enforcement staff and risk significant penalties for not telling the truth. Duncan said offering immunity is particularly helpful with athletes who might be fearful that they would incriminate themselves in violations.

“Our desire is never to focus on student-athlete culpability,” Duncan said. “In enforcement, our broader desire is to zero in and focus on the adult culpability, the grown-ups who are involved in violations, and one way to substantiate information or to get refuting information is to talk to the student-athletes or prospective student-athletes, particularly in our focus areas of recruiting and academic integrity.

“It is effective to help encourage that young man or young woman to cooperate with us if he or she knows they’ll be eligible to play and won’t be cited for a violation of the infractions process.”

Duncan cautioned, however, that the NCAA enforcement staff doesn’t “have a pad of paper with immunity on it we can pass out to kids” and can’t, by rule, use it as a fishing expedition to look for violations. In fact, any immunity offer must first be approved by the NCAA Committee on Infractions chairman based on a specific request by enforcement.

“We have to make a case to them for why each individual — occasionally it’s grown-ups — should get immunity, how it will affect the investigation and why it’s needed,” Duncan said. “Then we take that and share it with the young man or young woman and their lawyer. Is it effective? We believe we get credible information in exchange for immunity in most cases, but we always have to be discerning consumers of information. Whether it’s in exchange for immunity or not, we always test the information we get.”

While the NCAA’s handling of the North Carolina case has drawn ire from both sides — ACC commissioner John Swofford has suggested a large-scale overhaul of the Committee on Infractions system due to the length and inconsistency of the investigation, while others are unsatisfied with the lack of punishment yet for massive academic fraud — Duncan’s leadership since taking over the department in 2013 has helped clean up the mess left by the botched University of Miami investigation.

NCAA reinstates allegations against UNC football, men’s basketball
The NCAA enforcement division was accused of overstepping its authority in that investigation by going against the advice of internal counsel and paying the attorney of imprisoned booster Nevin Shapiro for depositions from his bankruptcy proceedings. An external investigation of the department’s conduct in that matter resulted in a significant personnel and operational overhaul led by Duncan, who said he has asked to be held to the same standard for his department’s conduct as the NCAA’s new coach control obligation, where a head coach can be penalized for violations committed by their assistants unless they demonstrated that they promoted an atmosphere of compliance and monitoring of their staff.

“I monitor my direct and indirect reports and I’ve tasked my leadership to do the same thing,” Duncan said. “Not to micromanage, but to know where our staff members are and what they’re doing. I think it’s a good way to run a railroad and it helps us understand, as best we can, the obligations a head coach has. It puts us in a better position when it comes time to decide whether to bring that allegation when we know what it feels like to have those obligations.

“We’re committed to make the right decisions for the right reasons without regard to the pressures that may be out there, and any departure from the bylaws or operating procedures is over my objection and contrary to my instruction. They all know that and then we follow up with monitoring.”

This article was selected for educational purposes only.

Jennifer M. Condaras
Deputy Commissioner, NCAA Relations & Administration
Colonial Athletic Association

The opinions expressed in the Daily Compliance Item are the author’s and the author’s alone, and are not endorsed by The COLONIAL ATHLETIC ASSOCIATION or JumpForward. The Daily Compliance Item is not a substitute for a compliance office, case specific research, or the NCAA Bylaws. Do some homework, ask around, and get it right.

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