An independent report recommends adjusting Division I enforcement and infractions procedures to manage risks and improve operational efficiencies.
Washington, D.C., attorney James C. Duff, recently appointed by Chief Justice John Roberts as Director of the Administrative Office of the U.S. Courts, conducted the review.
The report, received June 12, recommends about 50 procedural changes, most that are intended to reduce the time and improve the operations involved in processing infractions cases.
The NCAA already has implemented some of the recommendations, such as hiring more staff to expedite processing of inquiries, and hiring a "reporter of decisions" to review infractions-related decisions, press releases, Web site publications and rules changes rendered by the Association for accuracy before being publicly released.
Other recommendations in the report include:
▇Requiring involved parties in investigations to appear at the infractions committee hearing before they are entitled to appear at the appeals committee hearing. That might eliminate the need to appeal and would enable the infractions committee to make more fully informed findings.
▇Providing schools the intermediate step of seeking reconsideration of an imposed penalty by providing new information before resorting to a time-consuming appeal.
▇Providing parties an opportunity to resolve time-consuming procedural disputes, such as those regarding documents provided in an investigation, before the hearings on the merits, which should expedite decisions.
▇Giving schools an opportunity to submit a joint statement of facts with NCAA staff regarding the review of reinstatement and eligibility of student-athletes, which also would expedite the review.
▇Considering more public response to public statements made by those being investigated, including statements not only by institutions, but also those made by involved individuals.
Duff was retained in May 2005 to review NCAA investigative, hearing and appeals processes, and waiver and student-athlete reinstatement procedures. The need for such a review was prompted in part by a risk-assessment analysis conducted in 2004 by Deloitte & Touche, LLP. Among the key risks that report identified was a potential limitation on the NCAA’s ability to effectively govern due to legal intervention or adverse legal interpretation of NCAA regulations or standards. One of the strategies recommended to mitigate that particular risk was to engage an outside attorney to conduct a systematic review of NCAA procedures involving enforcement investigations, waiver requests, petitions for reinstatement and administrative reviews.
The review also aligns with the Association’s strategic plan, which includes the operation of the national office in an accountable, effective and efficient manner among its goals.
It is not the first time the Association has shone a bright light on its procedures. In 1992, for example, the NCAA appointed a special committee chaired by former U.S. Solicitor General Rex Lee (the panel also included retired former Chief Justice Warren Burger) to review the NCAA’s enforcement and infractions processes.
"The scope of the current review is comparable or even greater than the Lee report." Duff said. "But it differs in that it was not only part of a periodic review conducted by the NCAA, but also an outgrowth of recent litigation it has been exposed to."
NCAA President Myles Brand said it is prudent for the Association to conduct periodic and independent reviews of its procedures to ensure they coincide with the best legal and ethical practices.
"We see the results of this report and the consideration of the recommendations enabling the NCAA to not only process cases in a more timely way, but also reduce the risk to the NCAA through more careful scrutiny of the way in which we manage cases," he said.
Brand said he does not expect the procedural changes to reduce the amount of litigation the NCAA might face, but that they "help the NCAA manage its risk in that litigation far better than in the past."
Duff said he conducted dozens of interviews with members inside and outside the Association who have experienced the infractions process, including former coaches and athletics administrators, in compiling the report.
He said before he began the report he shared some of what he called "common misperceptions" about the NCAA enforcement process, such as "selective prosecution" or "the unchecked power of the NCAA." During his work, though, Duff said he found the NCAA policies and procedures to "compare favorably with federal administrative and state court procedures, even though the Supreme Court has ruled that the NCAA is not subject to due-process requirements because it is not a state actor."
Bernard Franklin, NCAA senior vice president for governance and membership, said the recommendations will be referred to the appropriate NCAA committee and national office staff for further vetting.
"The good news is that we are not in a crisis situation in terms of having this review," Franklin said. "We’ll be able to take our time and give thoughtful consideration to the recommendations that emerge from this report."
The entire report was produced as an attorney-client privileged communication and — though it is an independent analysis — is not a public document. An executive summary of the report that does not contain privileged information can be found online at www.ncaa.org.