A subcommittee of the U.S. House of Representatives focused on treatment of individuals involved in NCAA enforcement and student-athlete reinstatement proceedings during a September 14 hearing in Washington, D.C.
Three witnesses testified before the House Committee on the Judiciary's Subcommittee on the Constitution during the 90-minute session, including a law professor who serves on the NCAA Division I Committee on Infractions.
Josephine R. Potuto, the Richard H. Larson Professor of Law at the University of Nebraska, Lincoln, was one of three witnesses who provided verbal testimony and answered questions from the subcommittee.
The other witnesses were Jeremy Bloom, former student-athlete at the University of Colorado, Boulder, and David Ridpath, a member of the kinesiology faculty at Mississippi State University and
former assistant athle tics director for compliance at Marshall University. Bloom and Ridpath appeared as critics of the NCAA's student-athlete reinstatement and infractions procedures, respectively.
A fourth scheduled witness, Gary Roberts, director of the sports law program at Tulane University and faculty athletics representative at that institution, was unable to appear because of the approach of Hurricane Ivan.
However, he submitted a written statement acknowledging that the NCAA could take steps to "improve the fairness, or at least the appearance of fairness" of the enforcement process, but adding that while the enforcement process is "inevitably" imperfect, it also is "remarkably accurate." Comparing the enforcement process to a criminal judicial system with constitutional protections for defendants, Roberts said that the NCAA "seldom wrongfully accuses and even more rarely mistakenly 'convicts.' " (See guest editorial, page 4.)
Potuto described the infractions committee's administrative procedures and argued against suggestions during the hearing that Congress should legislate changes in the enforcement process. She defended the process -- which is administrative rather than judicial -- from suggestions that its due-process procedures are deficient, and should be addressed by Congress.
"Even if Congress were to declare that the NCAA is a state actor, none of the processes we currently are engaged in would have to change," Potuto said in response to a subcommittee member's question. "The NCAA committee exceeds what procedural due process requires."
The subcommittee chair, Rep. Steve Chabot of Ohio, said the hearing's purposes included:
Potuto, who also submitted a written statement describing the enforcement process to supplement her testimony, was questioned by subcommittee members about why the Association does not employ independent hearing officers in infractions proceedings and does not conduct open hearings -- as recommended by the Lee committee.
"The Lee committee had a number of recommendations, most of which were adopted by the NCAA member institutions," Potuto responded.
"In fact, the particular proposal for an independent hearing officer was also adopted by the member institutions. During several years in which that particular option was available to member institutions and individuals, it was only requested once, by an individual, and in that instance the institution opposed the use of a hearing officer."
That lack of use ultimately resulted in repeal by the membership of the independent hearing option. Meanwhile, other changes recommended by the Lee committee -- including separate administration within the NCAA national office of the Committee on Infractions and establishment of an Infractions Appeals Committee to review decisions -- remain in effect.
Potuto defended the infractions committee against allegations during the hearing that members are biased, have conflicts of interest or may use proceedings to settle grudges against individuals, noting that while a majority of committee members are administrators of conferences or institutional athletics programs, the committee also includes "public members" (currently including a former federal and former state judge), as recommended by the Lee committee.
"It is critical to the process to have people adjudicating cases who know what happens behind the scenes, can understand a penalty (proposed by an institution) is in fact not a penalty, and ... (have) credibility because they've been there," she said of administrators' presence on the committee.
Rep. Spencer Bachus of Alabama, who requested the hearing, questioned the NCAA's reasons for conducting closed proceedings and criticized Potuto's written defense of the policy. He suggested the Association maintains closed hearings only for expediency or cost savings.
Potuto's written statement noted that "the NCAA, through its membership, has embraced the philosophical position that confidentiality is an important component of the process" and added that "many are willing to provide information and to be identified within the process both to institutions and individuals alleged to have committed violations but might be far less willing to provide information if subject to full public disclosure."
In her verbal testimony, Potuto compared the committee's proceedings to those conducted elsewhere in higher education, specifically disciplinary or promotion and tenure hearings for faculty members. She also suggested, in response to claims during the hearing that the process has harmed the reputation of individuals involved in cases, that public proceedings would contribute to that damage.
"I do not see that a public hearing would alleviate or ameliorate that concern," she said.
The hearing also focused on student-athletes' involvement in Association proceedings, particularly the student-athlete reinstatement process.
Much of the discussion centered on testimony by Bloom that the NCAA fails to provide student-athletes with due process in those proceedings.
"The current procedural system for student-athletes to dispute interpretations of NCAA bylaws is flawed," he said. "In the United States, when there is a conflict, a dispute or disagreement between two parties, fairness is ultimately judged by our peers, or by an impartial court proceeding. In the NCAA, the judgment of the dispute is formed exclusively within their organization, by their own members. They're the judge, jury and executioner."
Bloom specifically criticized Bylaw 19.8, which empowers a division's Management Council to take a variety of actions against an institution "in the interest of restitution or fairness to competing institutions" when an ineligible student-athlete is permitted to compete under a restraining order or injunction, but that order is then removed. He said the bylaw was a factor in a Colorado state court's handling of his unsuccessful effort to compete for the Colorado football team while endorsing products as a professional in another sport, moguls skiing.
"This restitution bylaw brought much concern to the judge who heard my case, and spurred university officials to notify me that even if I were granted injunctive relief by the court, the university would not take the risk of allowing me to play, for fear of possible sanctions."
Bloom told the subcommittee that Congressional action is needed to force the NCAA to change its procedures.
"You are the only people in this country who can initiate change and oversight, and I encourage all of you to do so," he said.
The witness panel did not include anyone who was involved in processing the unsuccessful request by Colorado to reinstate Bloom for football competition, after he accepted endorsement money in his other sport.
However, the subcommittee permitted an NCAA staff member to specifically discuss Bloom's assertion that the Association should have treated his case identically to that of University of Iowa football and track athlete Tim Dwight, who was permitted to compete for that institution in track after receiving and then saying he had returned the endorsement money in football while playing professionally for the San Diego Chargers.
"The substantive difference is a willful violation of NCAA rules, a knowing commitment of a violation, when in fact (Bloom) knew it was a violation to engage in that activity," said Jennifer Strawley, director of student-athlete reinstatement.