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The NCAA Gives The Media A Look Through The Door With The 'Enforcement Experience'

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WIth the recent allegations of NCAA violations against Boise State and Ohio State, as well as the pending decision on USC's bushgate appeal, the NCAA's infractions regime has found itself receiving even more attention as of late than normal, while being the subject of a great deal of controversy in terms of how a program falls into the infractions regime as well as its basic process. While early thoughts from the outside are that the new leadership in Indianapolis is putting a greater internal emphasis on rules enforcement, they are also trying to demystify the inner workings of the investigatory and disciplinary process. in one way to accomplish that end, the NCAA has recently created a new section of its website focused exclusively on rules enforcement. Additionally, they also saw the need to educate those who encounter this process and educate the public for a living.

Last week, the NCAA invited a group of sportswriters to Indianapolis for what it termed the "Enforcement Experience,". As the NCAA described through a pre-event press release, the experience was conceived to be:

a day-long session that will provide a behind-the-scenes look at the complex task of holding institutions, administrators, coaches and student-athletes accountable for NCAA rules that are intended to promote education and fair play.

The inspiration for the event was the mock NCAA basketball tournament selections that the NCAA has held for members of the media in recent years. The 6-hour process that more that 20 members of the media experienced was intended to approximate as closely as possible the process of an actual case from the perspective of NCAA enforcement staff (investigators) and the Committee on Infractions (COI), from a tip coming to the attention of an NCAA investigator, to the deciding whether the fruits of the ensuing investigation were sufficient to present to the COI, going through a mock COI hearing and deciding whether 'clear and convincing' evidence from the investigators and the hearing showed a rules violation and if so, what sanctions are proper to apply to the guilty.

Something that really comes to light from reading the reports of several of the participants is how difficult - and how involved - the process really is for those administering it. Mandel, for example noted that he would be able to write no more than a couple of stories a year if he had to prepare like the NCAA investigators prep for interviews. The investgatory process has been streamlined in recent years, but still takes several months, not to mention the time taken by the (volunteer) COI members to prepare for hearings, and then to make sense of the evidence and come to a conclusion.

The main takeaway that many of the assembled reporters later discussed was the sheer complexity of the enforcement process. This takes form in several ways---whether it be the initial stages of investigation (the relatively limited resources and limitations on scope and power), the many steps that a case must take to wind through the enforcement system, and the fact that seemingly minute differences in the circumstances between cases can lead to quite different outcomes and/or punishments effects how the public and the media both perceive the enforcement process.

Pat Forde bore down on this point in his write-up of his day of experience:

But my bottom-line takeaway from the day was this: There is nothing simple about the arduous process of catching and punishing cheaters. And that remains the biggest problem the NCAA faces in trying to make the sporting world understand why it does what it does.

We are more cursory than thorough in many ways, ranging from how we digest news to how we arrive at our opinions as sports fans. ... The greater the gray area between black and white conclusions, the less likely we are to wallow through it in search of understanding. 

Thus if a topic is complicated enough to defy easy explanation, we produce one anyway. We ascribe ulterior motives where there may be none, make apples-to-oranges comparisons and always assume that the power structure is out to get Us (whoever Us is) and scared of going after Them (whoever Them is).

Dennis Dodd's thoughts for (inadvertently, I would imagine) really proves Forde's point on complexity and the effect on the perception of the enforcement process.

For that matter, I am not sure what Dodd was trying to do with his article; he clearly does not like the current enforcement regime, but also does not seem to have much of a realistic view of college athletics and the people trying to subvert the rules within them:

Unsavory characters (prisoners, felons, etc.) are also used in real-world court cases. The difference there is a presumption of innocence for the accused. There are cross-examinations, witnesses and either a judge or jury to decide guilt beyond a reasonable doubt. The NCAA standard for conviction is much lower. Infractions hearings are more like civil cases -- administrative as opposed to criminal -- where only "clear and convincing evidence" is needed. That's according to former infractions committee chair Jo Potuto, a bulldog in the hearing room, judging by Tuesday, and a Nebraska law professor outside of it.

That lack of true due process paints the NCAA into a PR corner. We already know the public doesn't understand the process. It really doesn't understand when the NCAA doesn't have subpoena power to compel witnesses to testify.

From reading this - and the rest of his piece - it doesn't really seem that Dodd knows what "due process" actually means (hint: 'due process' is not the same thing as the evidentary standard needed for a 'conviction'), with so much else wrong with his understanding of both the enforcement process as well as the legal system as a whole. Like the general public that the NCAA is looking to inform, Dodd looks to have a disjointed view of the process; one the one hand, he does want strict enforcement and a deterrent to future rulebreaking by players and universities, but he also demands a system (with burdens on the NCAA) more like the criminal justice system than the current system (or even civil legal standards) without anything like the state's ability to procure evidence. Considering that there are rarely, if ever any smoking guns in the world of NCAA violations, what Dodd wants would effectively destroy the NCAA's ability to make universities follow the rules of the association, as much as placing a Pete Carroll and Mike Garrett in every school in Division-1 would do.

Seth Davis wrote about the difficulty that the NCAA faces in creating and maintaining a fair, yet effective rules enforcement system. Through several bulletpoint conclusions stemming from his day as an investigator, Davis noted the power that the NCAA does have to investigate, but also how limited in scope that power is:

Every school within the NCAA must cooperate with an investigation, and every student-athlete signs a statement at the beginning of the school year that commits that student to reveal knowledge of violations. Though the NCAA has to notify a school in advance that it is meeting with a student or staff member (including nonathletic personnel like professors), the investigators do not have to say ahead of time what they intend to ask. ...

Furthermore, before questioning begins the NCAA provides the interviewee with a format explaining how the interview will proceed, as well as a detailed explanation of the consequences of committing "unethical conduct" -- i.e., lying. All in all, it's a pretty intimidating scenario. No wonder so many people sing.

Unlike an actual prosecutor, the NCAA does not have subpoena power over people who don't work at or play for its member schools. This is, as Humphrey conceded, "a significant roadblock."

The point regarding the lack of subpoena power also does have an impact on just how open and transparent the NCAA can be regarding particular cases - at least at the outset. On Davis's though that COI hearings should be opened to teh media, for example:
I was told that part of the concern is whether that would be fair to the accused. "The fact is, we do bring charges the Committee doesn't find [to be true]," Humphrey said. The larger impediment, though, is the fear that it would dissuade witnesses from coming forward. Again, with no subpoena power the NCAA can't force anyone outside its purview to testify. Many key witnesses who come forward do so under the agreement that their identities will be kept secret. If those witnesses knew their names would be revealed to the public, they would be much less likely to provide incriminating information.

With the faults of and misunderstanding about the process said, even with an understanding of the enforcement system as it currently stands is far from perfect. Stewart Mandell in his article describing the experience, noted:

But understanding something and agreeing with it are two different things. Nothing I saw Tuesday changed my opinion that the entire enforcement process could use a drastic overhaul; that it's saddled by inconsistencies and inefficiency; and that it's too unnecessarily complicated for fans to ever truly understand.

Mandel's idea coming out of the day stemmed from the reality that not all 'major violations' are really of the same severity, leading to the thought that the NCAA should filter the class of current 'major violations' into new grouping based upon severity, with more severe violations going to the COI, and less severe cases being handled in-house by the NCAA. I am not sure that I am completely on board - asking the investigatory branch to also determine guilt and punishment, even if firewalls within the NCAA are built between actual investigators and judges will only lead to more complaints of NCAA misdeeds, even if Alabama/tOSU/USC-level cases continue to be submitted to the COI. I do agree though that taking into account the varying sins (for lack of a better word) of different rules violations in how a case processes would be worthwhile.

Another bit of complexity in the overall enforcement environment that has led to more confusion - and anger from some fanbases in particular - is the fact that the COI is not the only group associated with the NCAA that deals with possible rules violations. For current NCAA student-athletes who have their eligibility questioned, a separate group called the Student-Athlete Reinstatement staff looks at the allegations and evidence to determine if a player has compromised their eligibility, and if so, if/how the student-athlete can regain eligibility. These are the folks that, for example, allowed the five tOSU players to play in last season's Sugar Bowl after it came to light that they had improperly sold ad/or traded goods to a tattoo parlor owner (a case which after Jim Tressel's' cover-up became known, is now going to the COI for institutional violations). The Enforcement staff nor the outside officials that make up the COI have anything to do with process, but they often get rolled into (often justified) criticism of the Reinstatement staff's actions.

As a bonus tidbit from the day, for folks wondering why no team has been hit with a TV ban in recent years, Dan Wetzel got an explanation from a former COI member.

Former committee on infractions member Andrea Myers, the ex-athletic director at Indiana State, said that while a television ban is still a potential punishment, it never came up during her six years on the committee because “it screws up the whole conference,” she said.

Myers agreed that conference television contracts shouldn’t be a factor in doling out an individual case punishment but, “we have to be realistic.”

In closing, it does seem that with the recent changes at the top of the NCAA, there is a renewed emphasis on enforcing the rules of the association, and a new desire to be open and transparent. Nothing that the NCAA does will ever eliminate the complaints of those feeling that their school is being unfairly targeted or treated - or for that matter, those thinking that other schools are getting a free pass. George Schroeder of the Eugene Register-Guard noted the next steps that NCAA leadership is looking to take:

He [NCAA President Emmert] also said he wants to ensure the "penalty structure and enforcement process imposes a thoughtful level of concern, and even fear, that the cost of violating rules exceeds the benefit."

Julie Roe Lach, the vice president for enforcement, would like to hire more investigators. She’s studying the enforcement process, looking at changes, and Emmert says he’s on board.

As Schroeder also noted, as much as the public and the leadership of the NCAA wants change, the schools making up the association's membership have to want it. Do enough schools want change making it more dangerous to flaunt the rules?