The media and fans all across the country have not been shy in their disgust for the NCAA’s decision to levy penalties on violating institutions.  The common response is something to the effect of why me? or everyone is doing it.  Although everyone may be doing it, the NCAA enforcement staff is charged with eliminating the membership of rampant violations of NCAA rules, which leads to an abundance questions and concerns.  Simply put, the question is do the NCAA’s enforcement policies work?  These questions are not uncommon in the legal field and often revolve around jail time and capital punishment.  Is jail really a deterrent?  Is the death penalty really a deterrent? These questions are debated at length in about every forum imaginable, as are those related to NCAA enforcement and penalties.  Some would argue the fear of facing the NCAA Committee on Infractions is a deterrent that keeps bad actors at bay.  However, Illinois State University professor Chad McEvoy’s research data indicates institutions that have been sanctioned by the NCAA are actually more successful than the institutions that have not been sanctioned.

Espn.com recently reported that the Subcommittee of the Division I Committee on Infractions (“Subcommittee”) offered recommendations in October 2008 to the Division I Board of Directors proposing more stringent penalties for violators. The sum of the Subcommittee’s reported recommendations are 1) to require all institutions guilty of a major infraction to lose scholarships; 2) impose more television bans; and 3) clarify penalties for repeat offenders.  Although these penalties are step in the right direction, are they really deterrents?  Does anyone really think the University of Southern California (“USC”) or the University of Alabama (“Alabama”) will have any trouble finding blue chip recruits willing to suit up for their football teams?  The posed question requires a one word answer, doubtful.  The only proven penalty that has value is the “death penalty.”  As chronicled by Pony Excess and many other articles and books, the decision to impose the “death penalty” decimated Southern Methodist University’s (“SMU”) football program.  In fact, it has taken the program over twenty (20) years to become respectable again.  I am not advocating for the imposition of the “death penalty,” but that is the only known deterrent that is clearly punitive in nature.

New NCAA vice president of enforcement, Julie Roe Lach, has indicated in multiple interviews and media reports that she and her colleagues are addressing and reviewing the entire enforcement process.  Although many agree the enforcement process needs revision, the question is how much and how far?  One such area of concern is why student-athletes are punished more stringently than violating coaches.  Recently, at a speaking engagement at SMU, I was asked why Dez Bryant was withheld from competition for one season for misinforming NCAA investigators during an investigation, yet Bruce Pearl was appropriated only a few game withholding penalty for similar conduct?  That is a great question and one that has been repeatedly posed to new NCAA president, Mark Emmert. Mr. Emmert has often given statements reflecting that the penalties for student-athletes and coaches should be similar.  At present, penalties simply are not apportioned equally.

At this point, who could blame a coach for making a few twists and turns during the recruiting process to land the next hot talent?  If that talent leads to glory on the gridiron or hardwood, then a large payday follows and often substantial glory and recognition.  Nonetheless, coaches and student-athletes have to be held to some equivalent standard.  John Infante of the Bylaw Blog recommended a reinstatement procedure for coaches similar to the one in which student-athletes are submitted.  This appears to be an interesting argument and one that may have some weight.  This process would allow the NCAA to provide penalties to a coach during the season without having to wait for a lengthy investigation to conclude.  Ultimately, the institution would have to admit infractions occurred and submit the coach for reinstatement.  However, I have not reviewed a single coaching contract that allows for such a review.  In fact, many coaching contracts call for outside arbitrators to review such questions.  In light of the findings in O’Brien v. Ohio State University, many institutions will likely be reluctant to move quickly if such a process is implemented, unless such a mandate from the NCAA requires action.  Of course, legal action will follow from coaches that feel they have been aggrieved and submitted to review that is not called for within the four (4) corners of their contract.

In sum, there are plenty of opinions, questions, and desires, but no simple answers.  If I was writing the book on NCAA enforcement, I would start from scratch and develop a new procedure incorporating the decisions of an outside committee comprised of NCAA officials, representatives from member institutions, fine legal minds, and former judges.  I would request that these individuals review the entire NCAA system relating to punishment, reinstatement, and waivers as a whole and make a recommendation for a system that reduces the risk of lawsuits and also provides for a workable system that enforces NCAA rules and levies punishment properly, which may include a system officiated by individuals outside of the current NCAA system (i.e., retired judges or others with no relation to the NCAA).

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.