Daily Compliance Item- 2.10.17- Current Event

NCAA finding immunity useful in effort to crack difficult investigations


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.

Daily Compliance item- 1.20.17- Current Event

Head of NCAA enforcement sensitive to concerns that cases take too long


NASHVILLE — Jon Duncan, who heads the NCAA’s enforcement division, defended the work his staff has done recently to decrease the length of infractions cases in spite of significant public criticism, including recently from ACC commissioner John Swofford over the pending North Carolina case. Also this week, a member of the Mississippi state legislature proposed a bill that would force the NCAA to complete investigations within nine months, a response to the ongoing, years-long inquiry of the Ole Miss football program.

While Duncan declined to respond specifically to the Mississippi legislative proposal and can’t talk about ongoing cases, he said the NCAA is sensitive to concerns about how long cases take from start to finish and that changes he’s helped implement since taking over the department in early 2013 have “moved the needle not by days or weeks but by months,” said Duncan, who spoke to USA TODAY Sports at the NCAA’s annual convention.

Some of the difficulty in speeding up cases, Duncan said, is due to safeguards that were legislated into the processing phase, where involved parties are allowed time to respond to allegations against them. But there’s no doubt many of the NCAA’s high-profile cases have taken a long time to resolve, leaving a years-long cloud over programs even before the actual penalties were assessed.

“I’m totally tracking on the concerns that cases take too long,” Duncan said. “I absolutely understand that. We’ve worked very hard over the last several years to prioritize timely disposition of cases. I’m proud of that. There are still some cases, many of them high-profile, that go longer than that and that’s unfortunate. But we are working to reduce the duration and we’re being effective at that, without sacrificing quality, accuracy and the collaboration that we enjoy.”

The NCAA has long wrestled with how to speed up the process for schools that must appear in front of the Committee on Infractions, but the uniqueness of each case and the challenges of investigating without subpoena power makes it difficult to put every situation into the same box. Some cases are, quite simply, bigger than others and take longer to resolve.

Duncan, however, said the perception is sometimes skewed because it doesn’t take into account how many issues his division handles without any publicity.

“What most of the membership doesn’t know about are the cases that we open, investigate, collaborate with the institution and ultimately close down without bringing formal allegations,” Duncan said. “Nobody knows about those cases except for us and the member institution involved and it’s not unusual for those to be opened, investigated, closed down in a matter of days or weeks. Nobody’s tracking on those because the world doesn’t know about them and they’re confidential, so many are judging the timeliness of cases by a very small slice of our overall workload.”

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.

Daily Compliance Item- 10/30/12- NCAA Enforcement Article

Board adopts tougher, more efficient
enforcement program


The Division I Board of Directors today adopted an overhauled enforcement structure that creates additional levels of infractions, hastens the investigation process and ratchets up penalties for the most egregious violations.

New violation structure

Level I: Severe breach of conduct

Level II: Significant breach of conduct

Level III: Breach of conduct

Level IV: Incidental issues

The Board’s action culminates a year-long effort from a 13-member group of presidents, athletics directors, commissioners and others assigned after participants at a presidential retreat in August 2011 called for a more stringent and efficient enforcement structure to uphold the integrity of the collegiate model of athletics.

“We have sought all along to remove the ‘risk-reward’ analysis that has tempted people – often because of the financial pressures to win at all costs – to break the rules in the hopes that either they won’t be caught or that the consequences won’t be very harsh if they do get caught,” said NCAA President Mark Emmert. “The new system the Board adopted today is the result of a lot of hard work and membership input devoted to protecting the collegiate model.”

At its core, the new enforcement structure:

  • Introduces a four-tier violation hierarchy that ranges from severe breaches of conduct to incidental infractions. The structure, which replaces the current two-tier approach (major and secondary violations), is designed to focus most on conduct breaches that seriously undermine or threaten the integrity of the NCAA Constitution (Levels I and II in the accompanying list).
  • Enhances head coach responsibility/accountability and potential consequences for head coaches who fail to direct their staffs and student-athletes to uphold NCAA bylaws. Penalties include imposed suspensions that can range from 10 percent of the season to an entire season.
  • Increases the Division I Committee on Infractions from 10 to as many as 24 voting members from which smaller panels will be assembled to review cases more quickly and efficiently.
  • Continues to offer harsh consequences (postseason bans, scholarship reductions, recruiting limits, head coach suspensions, show-cause orders and financial penalties) that align more predictably with the severity of the violations. The new penalty structure also places a premium on aggravating and mitigating circumstances in each case.
  • Emphasizes a culture among head coaches, the compliance community, institutional leadership and conferences to assume a shared responsibility for upholding the values of intercollegiate athletics.

The new structure becomes effective Aug. 1, 2013, which means the following as far as processing cases is concerned:

  • Conduct breaches that occurred before Oct. 30, 2012 and are processed before Aug. 1, 2013 will be subject to the current process and penalties.
  • Conduct breaches that occurred before Oct. 30, 2012 but are processed after Aug. 1, 2013 would be subject to the new process but would incur the more lenient of the two penalty structures (current and revised).
  • Conduct breaches that occurred during a span that includes both before and after Oct. 30, 2012 and are processed after Aug. 1, 2013 will be subject to new process and the revised penalties as long as most of the violations occurred after Oct. 30, 2012.
  • Conduct breaches that occur after Oct. 30, 2012 and are processed after Aug. 1, 2013 will be subject to both the new process and the revised penalty structure.

Board of Directors chair Nathan Hatch, president at Wake Forest, praised the new enforcement process that aligns with a companion effort to streamline bylaws and focus rules-making more on the NCAA’s fundamental principles. The Rules Working Group, led by Clemson President James Barker, forwarded a number of recommendations to the Board that are expected to be acted upon in January.

“A more sensible rules book combined with a more efficient way to enforce those rules will serve to sustain the collegiate model and restore public trust in college sports and the NCAA,” Hatch said. “These outcomes are precisely what presidents sought after the 2011 retreat.”

Oregon State President Ed Ray, former chair of the NCAA Executive Committee who also chairs the Enforcement Working Group, said the new multi-level violation structure allows infractions to be more appropriately categorized. In turn, penalties may be prescribed that better reflect the severity of the infraction.

Ray also noted the more efficient process resulting from an increase in members to hear cases. By expanding the Committee on Infractions to as many as 24 members and creating multiple panels from that “pool” that can adjudicate cases more frequently, Ray said the time to process the less-complicated cases could be cut in half.

Under the new structure, for example, hearings for Level I cases will be scheduled about 10 times annually (compared with the five meetings the current Committee on Infractions schedules). Level II cases can be scheduled monthly if necessary.

“A primary complaint we heard from the membership was that processing major cases took too long, not only from the investigative stage but also once it was agreed that there was a major infraction – it took too long to get on the Committee on Infractions hearing docket,” said Ray.

Ray also acknowledged a membership concern regarding potential inconsistent outcomes among cases in the new structure given the makeup of panel members drawn from the pool approach. However, he said the process ensures that several members of each panel, including the chair, will have had some previous experience with the Committee on Infractions.

“There may be new people on each panel but they’ll have experienced colleagues to work with,” Ray said.

In addition, the entire Committee on Infractions is required to meet at least twice annually (at least once in person) to review cases across panels and check for consistency in terms of the way the guidelines are applied.

“And the penalty guidelines will help,” Ray added. “When you give people side rails and tell them to stay within them, presumably there will be a lot of commonality among the judgments that emerge.”

As for the penalties themselves, Ray said the working group felt that the current structure didn’t offer enough of a deterrent for individuals who believe the anticipated benefits and advantages resulting from premeditated rules violations outweigh the severity of punishment.

The core consequences in the new structure are familiar (postseason bans, scholarship reductions and financial sanctions, among others) but are customizable according to the severity of the violation. The membership has on multiple occasions acknowledged that postseason bans, scholarship reductions and coach suspensions offer the most effective deterrent to potential rule breakers – and they are also the most effective in addressing the advantages gained as a result.

Enhanced penalties for coaches also highlight the new structure. Since 2008, about a dozen cases have occurred in which a head coach was found to have violated Bylaw (head coach responsibility) by either not promoting an atmosphere of compliance or for not monitoring his or her staff, or both.

Penalties in the previous structure relied on whether the head coach knew of the violations or whether there was a “presumption of knowledge.” But under the new structure, rather than focus on knowledge or the presumption of it, the bylaw will be amended to presume only responsibility. Accordingly, if a violation occurs, the head coach is presumed responsible, and if he or she can’t overcome that presumption, charges will be forthcoming.

“We expect head coaches to provide practices and training and written materials that instruct their assistant coaches how to act,” Ray said. “If they’ve done that it can become mitigating evidence that they shouldn’t be held accountable for what the assistant coach did. But head coaches have to have these things in place or the presumption will be that he or she didn’t care enough to set standards. In that case, if the assistant goes rogue, then it’s partly the head coach’s fault and they need to be held accountable.”

The entirety of the new structure is based on membership review and feedback over the past year. With approval of the new structure in hand, the NCAA enforcement staff will embark on an educational campaign over the next nine months to prepare the membership for the implementation of the new structure.

“The working group developed these recommendations only after comprehensive and ongoing membership discussion and input,” Ray said. “I’m pleased not only with the magnitude of the changes but also with the representativeness with which they were achieved.”

This article was  sent to the Division II subscribers even though it pertains to Division I.  These changes will likely trickle down in the near future.