SEPTEMBER 14, 2004
I am Josephine (Jo) R. Potuto, the Richard H. Larson Professor of Law at the University of Nebraska-Lincoln College of Law. I am the vice chair of the NCAA Division I Committee on Infractions (COI) and in that capacity I submit this written testimony to the House Judiciary Committee's Subcommittee on the Constitution. I appreciate the opportunity provided by the subcommittee to discuss the NCAA infractions process as adopted by the NCAA member institutions. This process protects the interests of individuals and institutions charged with violations by assuring them a full and fair opportunity to be heard regarding alleged rules violations. At the same time, this process advances the broader, systemic interests of all NCAA institutions by providing a timely and efficient resolution of infractions matters in a manner that treats all institutions equally regarding the assessment of the severity of violations and the penalties to be imposed.
The NCAA is a private association comprised of approximately 1000 four-year colleges and universities (329 in Division I) that have joined together to provide and administer standardized rules governing the conduct of intercollegiate athletics programs. It is an association formed, organized, and run by these member institutions. All NCAA bylaws and rules, including the enforcement process and investigative procedures, have been adopted by the membership; the administration of these bylaws and rules (as well as waivers from their application) ultimately is vested in committees comprised of staff members from member institutions or their conferences.
NCAA Bylaws
As adopted by the membership, NCAA bylaws regulate, among other things, recruiting, academic eligibility, financial aid, awards and benefits for student-athletes, competition and practice limitations, and amateurism issues. In the totality of their interrelationship, NCAA bylaws and regulations advance and preserve the collegiate model of competitive athletics. They are implemented with the prime objective to protect and enhance the educational and physical well-being of all student-athletes and they reflect considered judgment as to how best to balance a host of competing and legitimate interests, including the varying interests of different cohorts of student-athletes. NCAA bylaws and regulations also, and obviously, are intended to assure that any competitive advantage realized by particular athletics programs, teams, or student-athletes is achieved through fair play, rules compliance, ethical conduct, and good sportsmanship, and not by willful violation, rules avoidance, evasion, or ignorance.
First and foremost among the responsibilities imposed by all member institutions on each member institution is that of institutional control of its athletics program to assure rules compliance, academic integrity, student-athlete well-being, and the promotion of the highest level of sportsmanship and ethical conduct. Institutional control, as adopted by the membership, locates the primary responsibility for rules compliance squarely on each institution and requires each institution both to self-police and to self-report when potential violations are uncovered. If we lived in a world where all institutions at all times had perfect ability and willingness to self-police AND where all institutions at all times had perfect trust and confidence in the self-policing of all other institutions AND where self-policing handled exclusively at the institutional level nonetheless achieved across all institutions a consistent approach to evaluation of the severity of violations and the appropriate penalties attendant on any such violations, THEN there would be need for neither NCAA enforcement staff nor the Committee on Infractions. In the real world, however, both are necessary to assure the integrity of the process and consistency of treatment among and between institutions. In the real and competitive world of intercollegiate athletics, moreover, both are necessary to provide a comfort level to each institution that all are being held to the same standard.
NCAA violations may be major or secondary. They may be committed by coaches or other institutional staff members or those acting at their behest, by individuals formally outside an athletics department but nonetheless sufficiently associated with it to be considered representatives of the program (boosters), and by prospective or enrolled student-athletes. The Committee on Infractions hears only those cases involving potential major violations in which there is potential institutional culpability. Institutions are responsible for the conduct of their staff members and for the conduct of student-athletes and others when such conduct is known, or in the appropriate exercise of oversight and monitoring should have been known, by the institution.
Separate Committees; Separate Staffs; Separate Functions
The enforcement and student-athlete reinstatement processes are separate, perform different functions, and are handled by different NCAA committees. The enforcement and student-athlete reinstatement staffs are separate and comprised of different staff members. The student-athlete reinstatement staff reports to the vice-president for membership services, not the vice-president for enforcement. The membership and role of the COI is separate and distinct both from the enforcement staff and the enforcement process and the student-athlete reinstatement staff and from the student-athlete reinstatement process.
Student-Athlete Reinstatement Process
If a violation occurs that affects a student-athlete's eligibility, it is the institution's responsibility to declare the student-athlete ineligible and, in the event restoration of eligibility is desired, to seek reinstatement through the NCAA student-athlete reinstatement process. In only about one percent of the cases is the violation so serious and the responsibility of the student-athlete so significant that reinstatement is not warranted. In the other 99 percent of these cases, a student-athlete's eligibility is fully reinstated or reinstated with conditions.
On commission of major and certain secondary violations a student-athlete is ineligible for competition from the time that an institution discovers the violation until the matter is resolved by the student-athlete reinstatement process. In cases where restoration of eligibility is desired, the process typically requires that the institution file a petition for reinstatement on behalf of the ineligible student-athlete, setting forth the facts and circumstances of the violation as determined by the institution. The student-athlete reinstatement staff has the authority to resolve reinstatement matters in order to expedite the process, and to entertain waivers. This authority may be exercised, however, only pursuant to national guidelines and precedent established by the Student-Athlete Reinstatement Committee and the 49-member Management Council. This process also provides a right of appeal to the Student-Athlete Reinstatement Committee. The Division I Student-Athlete Reinstatement Committee is composed of five individuals from various Division I institutions and conference offices.
The student-athlete reinstatement process provides for the evaluation of information submitted by an NCAA member institution on behalf of a prospective or enrolled student-athlete who has been involved in violations of NCAA regulations that affect eligibility. The institution submitting the reinstatement request is responsible for determining the facts of the case and what violations have occurred. Once a case reaches the reinstatement staff, an institution already has decided that NCAA violations were committed. The objective of the reinstatement staff review is to assess the degree of responsibility of the student-athletes and to determine appropriate conditions for reinstatement of eligibility, if any, pursuant to national standards established by NCAA member institutions, and the Management Councils and Student-Athlete Reinstatement Committees of Divisions I, II, and III. The reinstatement staff has no authority to make a finding of violations. Its sole authority is to determine if reinstatement is warranted, and under what conditions.
Enforcement Process
It is the responsibility of the NCAA enforcement staff to conduct investigations of potential NCAA violations within the procedural and investigative parameters set forth by the membership and the COI (Bylaws 19 and 32) and to present to the COI cases the enforcement staff has determined to involve commission of major violations for which institutions are responsible. Specific enforcement staff responsibilities include collecting and validating information to determine the possible existence of a violation; classifying violations as major or secondary; tape recording or otherwise memorializing the substance of an interview; disclosing the purpose of a campus visit; permitting representation of counsel at interviews; providing institutions and individuals alleged to have committed major violations timely notice of an inquiry that includes a list of particulars relevant to the violation; providing timely disclosure of information relevant to an alleged violation; maintaining a custodial file of all information relevant to an investigation at a location convenient to institutions, individuals, and their counsels; conducting a pre-hearing conference independent of the COI to narrow the issues in dispute and to gain information leading to the possible amendment or withdrawal of allegations; and to provide an enforcement staff case summary for the COI hearing that sets forth the allegations, together with the facts and circumstances relied on to substantiate the allegations.
The enforcement process is cooperative, not adversarial. Although, obviously and necessarily, preparing an enforcement staff case summary and presenting a case to the COI entails a staff determination that there is sufficient information from which to believe that major violations were committed, nonetheless the enforcement staff is required to present exculpatory as well as inculpatory information and to present a balanced rendition that gives full sway to information indicating that violations either were not committed or cannot be proved to the evidentiary standard required by the COI. In addition, the enforcement staff has the general responsibility to assist institutions and individuals in their efforts to gather information relevant to alleged violations. Procedural protections include timely, and periodic, notice of the progress of an investigation; the right to assistance of counsel; access to all information relevant to a violation; and a statute of limitations that, with limited and specified exceptions, requires that any alleged violation presented to the COI must have been committed within four years before issuance of a notice that an investigation has been initiated.
Committee on Infractions
A. In General. The hearing procedures adopted by the membership have produced an infractions process that most resembles a type of administrative hearing akin to those employed in hearings conducted at public universities. Self-enforcement and the cooperative principle are at the heart of the process. The enforcement and hearing processes have evolved over time in response to concerns raised by the membership and others that a better and more balanced process could be implemented. Among the changes have been the addition of public members to the COI, the creation of an Infractions Appeals Committee, the addition of a summary disposition process that avoids the costs in time and money attendant on a full hearing, the adoption of a formal conflict-of-interest policy for COI members, and the provision of a database of COI reports.
Other suggested changes have been considered. Among these have been recommendations that infractions hearings be public and that the hearing process be turned over to hearing officers. With regard to the use of hearing officers, the membership adopted bylaws permitting institutions and others appearing before the COI to request that a hearing officer, rather than the COI, hear the case. In the ten-plus years this option was available; only one request ever was made and, in that instance, came from an individual while the institution in the matter preferred a full hearing. Ultimately, the hearing officer option was eliminated, on unanimous votes both of the NCAA Management Council and of the NCAA Board of Directors. With regard to public hearings, the NCAA, through its membership, has embraced the philosophical position that confidentiality is an important component of the process, both in the particular case and with regard to the overall interests of the membership. The cooperation of witnesses outside the athletics enterprise is often critical to building and proving a case. 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 a full public disclosure. Further, the extreme public interest among media and fans might create difficulties in maintaining an appropriate hearing atmosphere.
B. Composition and Role. The Division I COI is comprised of eight members who adjudicate cases and two members who coordinate appeals to the Infractions Appeals Committee. The regulatory and adjudicative process by which the COI operates was adopted by the membership and at any time may be changed by the membership when, if, and how a majority of institutions believe change is needed. As is clear from the regulatory and adjudicative process currently in place, the membership has a concrete and particular conception of the infractions process and the role to be played by the COI. It has created a hearing body that (1) is independent of the NCAA enforcement staff; (2) understands and appreciates the various facets of administering an athletics program; (3) provides a full and fair opportunity to be heard by member institutions and staff members alleged to have committed major violations and provides equal treatment between and among member institutions and their staffs; (4) is committed to the proper application of the rules and bylaws adopted by the membership to govern intercollegiate athletics and the conduct and behaviors of institutions and their staffs, and (5) is mindful of the interests of the membership as a whole when adjudicating the facts of a particular infractions case.
1. Independence . Independence is assured by the status of COI members, by formal structures of separation, and by the clear demarcation of COI functions. COI members neither are employed by nor report to the NCAA national office. They are appointed by the Division I Management Council on recommendations from the various conferences. Their professional roles outside the NCAA are ones of high responsibility, typically embodying high-level administrative positions. The two public members of the COI, moreover, not only are not employed by the NCAA but they also are not employed by any member institution. As such they are independent both of the NCAA and also of the world of intercollegiate athletics as practiced on the campuses or in conference offices.
The COI does not investigate alleged major violations. It does not conduct pre-hearing witness interviews. It does not engage in pre-hearing fact-finding. It does not participate in pre-hearing conferences. It neither sees nor reviews correspondence between the enforcement staff and institutions or other interested parties. It neither sees nor reviews information surfaced by the enforcement staff, institution, coaches or staff members alleged to have committed major violations unless that information is made a formal part of the hearing record. NCAA staff liaisons to the COI work exclusively with the COI. They are not members of the enforcement staff. COI deliberations and case-relevant discussions are confidential within the COI.
2. Experience with the collegiate athletics enterprise. Membership on the COI, in its totality, reflects a breadth of expertise regarding aspects of intercollegiate athletics and intercollegiate life in general – and deliberately so. The current eight committee members who sit as the adjudicative body, for example, are, or have been, athletics directors, coaches, student-athletes, and a conference commissioner. Several handle or have handled compliance matters on campus and prepare or have prepared waiver requests on behalf of student-athletes. From the perspective of the institution or individuals appearing before the COI, this athletics experience assures a sensitive appreciation of the athletics enterprise and the particular pressures generated by college athletics. From the perspective of the membership as a whole, this athletics experience also assures that the COI will be able properly to evaluate claims that might seem persuasive or compelling to one with little or no knowledge of the athletics world. The faculty status of two COI members brings a faculty perspective to the table and a focused appreciation of the academic mission. With regard to sensitivity to due process concerns, the COI has as members two former judges (representing trial and appellate and state and federal court experience) and three additional lawyers, one of whom dealt with university administrative hearings in his role as general counsel at his university.
3. Full and Fair Hearing Opportunity and Equality of Treatment. In many, if not most, cases heard by the COI, there is substantial agreement regarding the facts between the institution and the enforcement staff. Typically the institution and enforcement staff have engaged in a cooperative effort to uncover a clear picture of the circumstances surrounding potential violations. Often they participate at least in part in joint interviews. In these cases, as well as in cases in which there is substantial disagreement, institutions and individuals appearing before the COI have notice of the allegations charged against them and, in the enforcement case summary, a list of particulars regarding each allegation and the information relied on by the enforcement staff. At least some of this information will have been provided by the institutions during the investigation pursuant to the NCAA cooperative principle, which imposes an affirmative duty on member institutions to cooperate with the enforcement staff in investigating potential violations. Institutions and individuals also have ample pre-hearing opportunity to discuss the allegations with the enforcement staff; often these discussions lead to the withdrawal or amending of allegations. Moreover, the only alleged violations that the enforcement staff may present to the COI are those supported by sufficient information to warrant a conclusion that a violation has been committed.
Institutions, coaches, other staff members, and student-athletes who may be subject to imposition of a penalty have the right to appear, with counsel, at the COI hearing concerning their institution and to submit a written response. They also have available to them the complete file of information developed by the enforcement staff that is relevant to the case. They are entitled to submit interview transcripts or tapes, and any other documents they believe relevant to a full consideration of an alleged violation. Yet another aspect of the hearing process is that the COI may find a violation proved only if it is supported by information that is “credible, persuasive, and of a kind on which reasonably prudent people rely in the conduct of serious affairs.” Not only do NCAA rules mandate the exclusion from COI consideration of any information provided by a source that is not identified to the COI, institution, and individuals, subject to a penalty, but the COI considers with particular care the credibility of individuals providing information, the internal consistency of that information, and any corroborative information. In thus exercising its adjudicative function, the COI frequently does not make findings of violations. The final aspect of the due process afforded institutions and individuals is the availability of an appeal to the Infractions Appeals Committee, both on the merits of any particular finding and on the penalties imposed.
In sum, then, the procedural protections afforded in the COI adjudicative process include (a) notice of the allegations; (b) a list of particulars regarding each allegation that includes the names of individuals providing information and a summary of the information on which the allegation is based; (c) an opportunity pre-hearing to discuss the substance of the allegations and to present information leading to the enforcement's staff's amendment or withdrawal of allegations; (d) access to all information relevant to an allegation; (e) an opportunity, and sufficient time, to provide exculpatory or explanatory information and a written response to the allegations; (f) a requirement that information provided to the COI must come from sources identified to the COI and to the institution and any individuals appearing before the COI; (g) representation by counsel at the hearing; (h) a full opportunity at the hearing to present one's case; (i) an independent fact-finder; (j) fact-finding based only on that information made part of the hearing record; (k) a finding of violation requiring a high burden of proof; (l) a written report by the COI that sets forth the grounds for its decision; and (m) the opportunity to appeal adverse findings or penalties to the Infractions Appeals Committee.
4. Proper application of rules and bylaws. Another function performed by the COI is to provide consistent, uniform, and informed application of NCAA bylaws and rules. While the NCAA interpretations process is designed to assure informed and uniform application of rules, by their nature these interpretations do not cover the world of potential issues. The student-athlete reinstatement process, as noted earlier, involves no fact-finding but relies instead on the rendition of the facts and circumstances as provided by an institution. The COI, by contrast, is in the unique position to evaluate rules and bylaws in the context of concrete factual situations. The COI takes seriously its responsibility to understand the thrust and significance of rules and bylaws as adopted by the membership and to assure their correct and fair application to the conduct and behaviors of institutions and their staffs.
5. Interests of the membership as a whole. There is a natural, perhaps inevitable, tension between the interests of an institution or individual involved in a particular infractions case and the interests of the membership as a whole. What might be the most pleasing resolution of a matter to an institution facing findings and penalties might be detrimental to the overall policy considerations and interests of the membership and, in fact, might be so perceived even by the particular institution once it is removed from the infractions process. The COI is ever mindful of the larger intercollegiate context into which its findings and reports must fit.
C. Practical Considerations. The jurisdictional authority of the COI runs to member institutions and their staffs. The COI has no subpoena power or other ability to compel cooperation by those outside institutions, including even family members of student-athletes or prospective student-athletes. While decisions by the COI undeniably may have an impact on individuals who are not institutional staff members – boosters, for example – the direct authority to compel cooperation and to impose sanctions is exercised only on member institutions.
Cases within the jurisdiction of the COI are initiated by information received by the enforcement staff from a number of sources, including media reports. While often the first information about potential violations is reported by the involved institution, on occasion a major case is initiated by information provided by an individual seeking to remain anonymous. This process is no different from a confidential informer used in a criminal case or a law firm's use of a private investigator to follow investigative leads that ultimately produce information relevant to a court proceeding. In each case, the confidential source's information serves only as a directional signal, leading investigators to individuals with information both concrete and relevant to a charge. It is that information, and those individuals, on which and on whom the COI relies in making its findings. The use of confidential source information is a necessary component of an effective enforcement system. Without such information, many fewer major infractions cases would be identified and the commission of many major violations would go undiscovered – to the detriment of all those institutions and individuals who act with integrity and in compliance with the rules. In recognition of the procedural fairness due institutions and individuals, however, NCAA procedures dictate that information provided by a confidential source may not be presented to the COI and may not be relied on by the COI in making its findings.
Although a private actor for purposes of formal imposition of the due process protections of the 14 th amendment, the NCAA in its infractions process clearly meets and very likely exceeds applicable 14 th amendment procedural protections. It is a truism that the process that is due varies according to context, with the highest end of procedural protections afforded to defendants in criminal cases. The test for what process constitutionally is due requires an evaluation of the substantive value of the interest maintained by the individual seeking additional procedural protections (in other words, whether there is a liberty or property interest at stake), an evaluation of the likelihood that, and the extent to which, provision of the additional procedural protection will advance or impede the truth-finding function and reduce or increase the risk of error in the decision-making, and an evaluation of the fiscal and administrative burdens of providing additional procedural protection.
Boosters are not subject to NCAA rules or bound by the cooperative principle. Nor do they have a due process liberty or property interest in the right to make financial or other contributions to an athletics program, to travel with athletics teams, to visit locker rooms, to stand on the sidelines at games, or to do a host of other things enjoyed by them – even when they conduct themselves appropriately and in compliance with NCAA rules and bylaws. Certainly, then, boosters have no due process liberty or property interest in their continued association with an athletics program when they are determined to have committed NCAA violations.
Institutions are subject to NCAA rules and are bound by the cooperative principle. They also are responsible for the actions of boosters and others associated with their athletics programs when they know, or in the appropriate exercise of institutional control and monitoring should have known, of booster rules-violative behavior. In any case in which the institution believes the booster to not be culpable, the institution has every interest in representing and defending the booster's interest before the COI. In these cases, booster interests will be reflected in the university's response in as full a rendition as the university chooses to make. In many cases, however, the institution independently and prior to hearing itself determines there is booster culpability and disassociates the booster from its athletics programs. In either case, the booster has no independent right to appear before the COI just as there is no independent, and cognizable, due process interest in maintaining his/her contact with the athletics program. While certainly procedural protections may extend beyond what is minimally required by due process, and while a right to appear would seem to promote booster interests, the impact on the truth-finding function and institutional and greater public policy considerations must be weighed in the balance. As to the latter interest, there might well be a detrimental impact reflected in hearing delays, potential obstructive conduct, and in the overall efficiency of the process. As to the former interest, it is doubtful that the truth-finding function will be improved as a booster has a full opportunity to present his/her case through an institution in any situation in which the institution supports the position of the booster. Moreover, big-time boosters are fully apprised of NCAA rules as they apply to them. There are ample opportunities provided for instruction, including game day programs, periodic mailings to boosters, and in-person instructional sessions
Conclusion
I have attached to my testimony several documents that amplify and add depth and context to my remarks. Thank you very much for the opportunity to submit this testimony and attachments.
