To:      Ed Ray, Chair of the Presidential Working Group on Enforcement, and Members of the Working Group

From:  Josephine (Jo) R. Potuto, on behalf of the 1A FAR Board

Re:       February 2012 Enforcement Working Group Update (Set Forth in the Proposed New Violation Structure, Version 3 of the Penalty Structure Examples, the Action Items Timeline for Phases I and II, and the Preliminary Report to the NCAA Membership and the Executive Summary)

Date:  February 23, 2012

            As we believe you may know, the 1A FAR Board divided into subcommittees to provide “real time” responses to the work of the presidential working groups.  The enforcement subcommittee has sought broad input from FBS FARs both by posting on the 1A FAR listserve and also through FAR Board member interaction with our respective Conference FAR Councils.   This response was reviewed and is endorsed by the full 1A FAR Board. 

Once again we appreciate the opportunity to provide input as you form and reform your proposals and the policy decisions that underlie them.   


Timetable

            We wrote in January that we had concern that the fast timetable for adoption of its proposals that was anticipated by the Enforcement Working Group would provide insufficient time for effective, if not full, vetting by the membership.   For the reasons set forth below, we continue to have that concern and thank you for acknowledging the possibility of delaying the timetable should feedback from the membership persuade you that it is warranted.   At a minimum, we urge you to review the sources of the input you receive so that you may have confidence that it is representative of the full membership and includes those with important perspectives on the issues with which you are dealing.   Among the groups that come immediately to mind are the coaches associations. 

            Our concerns with the timetable are primarily in two areas.

            First, your timetable is ahead of that of the Rules Working Group.  We continue to believe that its work, when completed, may have import on the substance and scope of the proposals you advance.   One example is the number of tiers in the violations structure.   Should the Rules Working Group substantially reduce the number of conduct violations, or reduce them in certain areas (bylaw 17, for example), then may be reduced need for tiers and, in fact, it is possible that a violation tier as defined by you virtually will disappear.   We wonder, for example, if there will be Level IV violations once the Rules Working Group has completed its work.  We also wonder what may be left of Level II violations.  (An example you provide of a Level II violation, Page 2 of the Proposed New Violation Structure Grid, is phone calls and text messages, a subject area that may be deregulated.)    Similarly, the work of the Rules Working Group might suggest revisiting the contours of the Infractions Committee you recommend.  If there few remaining Level II violations, need there be three-person panels?   Would there even be need for a large Infractions  Committee that sits in panels?  Even the penalty guidelines you envision might be affected.   

            We worry, therefore, that the structure you advocate responds to a system of conduct-regulating bylaws that may not be in place in a year.  If change is warranted then, of course, change needs to be implemented.  Because change always brings unintended and unforeseen consequences, we urge certainty as to where and how change is needed before acting.   It may be that the Enforcement Working Group is directly interacting with the Rules Working Group, so that you know the ultimate direction and scope of its proposals such that you are confident that your proposals will still be needed.   If so, it would be helpful for you to make that clear.

            Second, we continue to believe that no model of enforcement should be adopted without full understanding and integration of student-athlete reinstatement processes.    One reason is that the facts underlying student-athlete reinstatement cases frequently also are the facts triggering infractions cases.   Institutions before the infractions committee frequently believe that reinstatement decisions somehow also answer issues before the infractions committee.   Another reason is that sometimes what are perceived to be serious student-athlete reinstatement cases do not come before the infractions committee, provoking media, public, and indeed membership failure to understand the different policy underpinning and approaches of the two processes.  Most significant, however, is our belief that an assessment of the differences in policy and underpinnings and approaches is long overdue and warranted to assure that both processes are doing what the membership believes is appropriate.   The infractions process has been the focus of review by outside consultants/committees three times since the litigation involving Jerry Tarkanian; one review was completed within the past three years.  We are not aware when such an evaluation of student-athlete reinstatement was undertaken, if ever.   We urge the Enforcement Working Group not to go forward with a major revamping of enforcement without full consideration and review/revamping of the role that Student-Athlete Reinstatement plays

            In sum, we doubt that the Enforcement Working Group can achieve a coherent, fully integrated approach to enforcement if its proposals are embodied in bylaws adopted independent from and ahead of the Rules Working Group and absent analysis of how Student-Athlete Reinstatement fits in.  Better to wait an additional six months or a year and get it right in one comprehensive whole than to have to reconsider and revise or live with inconsistencies and a full landscape that could and should have been better integrated.   In the meantime, the Working Group and DI Board could make clear to the current Division I Infractions Committee its expectation that penalties will be substantially enhanced for those violations you now classify as Level I.   This would help ease, and phase in, the transition.

Individual v. Institutional Responsibility

            We agree that the penalty structure for violations by coaches and others should be enhanced substantially, at least to the extent that such penalties do not put the NCAA in the middle of a campus personnel dispute and increase litigation risk against the NCAA.   We are sympathetic to the plight of institutions that have appropriate institutional control mechanisms in place and yet are responsible for violations committed “under the radar” by a bad actor.   But institutions can only act through people.  And other institutions suffer competitive disadvantage whether an institution before the Infractions Committee knew or could/should have known of particular violations.   We urge the Working Group to continue to be cognizant of the interests of those other institutions in deciding the penalty structure appropriate for institutions when a coach also is subject to substantial penalties.

Process Structure

            We have several concerns regarding the proposed structure of an enlarged full Division I Committee on Infractions that meets in panels to hear cases.   

            1.   The current Division I Infractions Committee does more than conduct hearings on infractions cases.  It hears appeals of certain secondary violations.  It processes summary dispositions.  In general, it is charged with overseeing in the first instance and in real time the scope and policies of the enforcement/infractions process, including review and advancement of potential bylaw changes, scheduling of infractions cases, and a variety of other matters covered in an agenda items meeting with the enforcement staff.  We believe this oversight is important, both for purposes of transparency and also to assure effective, on-going membership responsibility for enforcement.   On an on-going basis, members of the Infractions Committee also have policy discussions regarding treatment of cases and other issues.  We are concerned both how these other matters will be handled with an enlarged committee that meets in panels, not together, and we are particularly concerned with how consistency will be achieved.  It may be that the working chairs of each panel could meet to make these decisions.   There are other possibilities.   If the Enforcement Working Group goes forward with its proposal we urge it to consider and provide information about these other matters. 

            2.  The Committee on Infractions is a fact finder, not an appellate body.  Diversity of perspective in fact finders is an integral part of a fully considered decision.  Random selection from a group of 18 or 24 may not achieve sufficient breadth of perspectives to give confidence that the Infractions Committee understood the scope of the issues as understood by the different campus “players,” whether faculty, compliance staff, coaches, or senior administrative staff.    It appears to us that this will be particularly true for the three-person panels.  We recommend that you consider a process by which there are standing panels of three and seven (we urge 7 rather than 6, which would mean a full infractions committee of 21 or 28) that could work together for a set period (perhaps two years), with members then switching.   Doing so would assure adequate diversity on each panel.  To avoid institutions panel shopping, a panel could be assigned at the notice of allegations and would sit on the case no matter when it finally is heard.  If members of a panel are unable to sit, then a pull-someone-out-of-the-hat system for substitution could be used.

            3.  Currently the most serious infractions cases entail a very large time commitment, particularly if coaches or other individuals are at risk of particularized findings of commission of violations.  With enhanced consequences to individuals and institutions, this phenomenon may increase.   We have heard various ideas about who would be the members of the Infractions Committee.   First, we are concerned with designating particular required slots for individuals with specified experience and backgrounds.  The more there are of required slots, the more difficulty finding qualified candidates with sufficient time and interest (and the concomitant consequence that those with other backgrounds will be excluded even when they have sufficient time and interest).   This effect is increased with an Infractions Committee of 18 or more.   Second, we are concerned with some of the role responsibilities identified as needed.   We have heard various ideas of who these members would be, some of which are not listed in the current document.   We are not sure whether they are still being contemplated, however.

            One idea we heard was that coaches would be members.  We expect that a men’s basketball coach would not sit on a men’s basketball case.  He also could not serve on a case from his conference.   We do not believe that he could devote the requisite time to cases when in season.   We are doubtful that all these constraints easily could be managed within an 18 (or 21-)- or 24- (or 27-) person pool.   (We also are concerned with whether coaches could step out of their competitive roles – or be perceived to have done so -- or remove themselves from the “coaches fraternity” perspective when sitting on a case.)   We also have some concern with former coaches as members.  If they retain association with a sport (executive director of coach’ association, for example), then there remains an issue if independence.   If there no longer are active coaches, then we are concerned whether they will be current with issues facing coaches and the general tenor and practices in a sport.   We believe that other Infractions Committee members have and understand the perspective of coaches, most particularly athletics directors who oversee and speak for coaches in a variety of fora and who, in many cases, are former coaches themselves. 

             We also doubt that current university presidents and chancellors will be able to devote the time to infractions cases.   University presidents and chancellors have a lot on their plates.  In our experience, their focus is on articulating policy and in making ultimate decisions.  In our experience, they have to delegate a good deal of the direct operational end.   We do not believe that the demands of their positions lend themselves to service on the Infractions Committee or that they will have particular experience and expertise in the bylaws and interpretations at issue in major cases. 

            Our concern with former presidents and chancellors is that they quickly will be out of touch with campus and campus athletics issues.  If the idea is that a former chancellor or president would be treated as someone outside athletics in the way that the two public members of the current committee are, then we believe that this proposal could work, but recommend that it be clear that the former president or chancellor is among those who would serve as public members.  If the idea is that they have the perspective of a president/chancellor that needs to be reflected on the infractions committee, then we have no good opinion whether that is true as we have not been part of your discussions.  If the idea is that a former president/chancellor will lend weight and status to the committee, then we concur that the status of the Infractions Committee is a significant interest in deciding on membership.   But we urge you not to stop there. 

            The history of the Infractions Committee is that its members have been individuals with end-line responsibility.   Compliance directors and Conference staff have expertise in some of the issues with which the Infractions Committee deals, and that experience must be reflected on the Infractions Committee.  But it is our view that such expertise is not enough to warrant membership on the Infractions Committee.   Instead, it is important that the stature and status of the Infractions Committee be maintained, not only because hearings include high-priced, high-powered legal counsel, university presidents and senior administrators, but also because of the importance in litigation.  There are federal court cases against the NCAA in which judges have eschewed the idea of Infractions Committee bias by pointing to the status and reputations of its members.  We have not seen any proposal from the Enforcement Working Group that addresses this aspect of membership on the Infractions Committee.  We urge the Enforcement Working Group explicitly to recommend bylaw language regarding membership.  We believe that Jim Duff, in his consultant’s report, included recommended language.   Such bylaw language not only would guarantee the right member profile, but it also would avoid conferences nominating individuals for the Infractions Committee who have no chance of being appointed on the basis of criteria that go unstated.   

            Finally, we wonder how the Working Group intends to respond to concerns that there will be an absence of consistency among panel decisions if, effectively, more than one Infractions Committee sits.    Infractions cases involve a myriad of fact patterns and differences case to case.   Litigation, civil and criminal, also involves a myriad of fact patterns.  But appellate courts have thousands of cases from which to compare in evaluating if there is indefensible inconsistency.  The infractions process simply does not have a sufficient number of cases from which reliably to conclude that fact differences are material.  There may be ways to handle the perception of inconsistency, but we think the Enforcement Working Group needs to articulate what it believes they are.  We simply note that we do not believe that using the infractions appeals process to work this out is the best solution. 

Staff Prepared Case Summary

            We understand that the enforcement staff case summary adds work for the enforcement staff and may delay when a hearing may convene.  But we have serious concerns with eliminating it.  First, it provides the infractions committee with a working structure for evaluating a case and for the conduct of a hearing.   Second, it forms the initial organizational structure for drafting an infractions report.  Third, it highlights issues in ways that institutional responses typically do not.  If there is no enforcement staff case summary, then we believe the end result will not be to save time and money.  Instead, we believe it will shift the time consequences to the Infractions hearing, deliberations, and report-writing processes; and it will shift the burden from NCAA enforcement staff to volunteer Infractions Committee members who already have full-time jobs.   Among our concerns is the impact on the progress of the hearing as there may be more time devoted to straightening out the facts and underlying theories presented and less time focused on what the facts mean.   If, by contrast, the responsibility of preparing the equivalent of an enforcement staff case summary shifts to the institution, then we believe there also will be delays.  The enforcement staff has expertise and experience in preparing case summaries.  Institutions already vary in the quality and adequate breadth of their responses; there is no reason to believe they will do better in preparing a case summary.   Moreover, placing the responsibility on them exacerbates the complaint of coaches that they are boxed out of the process and may result in delays as coaches challenge the scope, content, and conclusions in the document.   We also worry that elimination of the enforcement staff case summary will increase costs to institutions in terms of institutional staff time and legal fees. 

            This particular proposal, if we understand it correctly, will shift time and work from the NCAA enforcement staff either to the institutions or to the volunteer members of the Infractions Committee (or both).   It may decrease the time from Notice of Allegations to hearing (although we are doubtful that will be the result if institutions have the responsibility to prepare a case summary) but we do not believe that it will reduce the time from notice of allegations to infractions report.    
Prehearing Conference/Expedited Hearing Before One Infractions Committee Member

            We believe that a prehearing conference before the chair or his/her designee would expedite the hearing process and make it more efficient.  We believe this process also could be used to work through procedural issues.  We note, however, that currently there is no requirement that the committee chair be a lawyer.  If a prehearing conference process is implemented, it would be prudent that the committee chair be a lawyer.  (In any event, we believe that the procedural and protection-of-record aspects of a hearing argue for a lawyer as chair.)

            We do not understand the proposal for an expedited hearing before one member.  The Working Group proposes using a three-member committee for some violations.  Is the one-member alternative to be used for these violations?  We do not believe that a one-member alternative ever would be appropriate for violations that would trigger a seven-person committee.

Time Limits on Transcripts/Reports

            Trial transcripts done by machine can be produced overnight and certainly in a shorter time frame than two weeks.   In many cases, the Infractions Committee staff does no work on a case until a transcript is available.  If the Enforcement Working Group wants to expedite, then we believe even two weeks is too long a time. 

            We oppose putting time limits on infractions reports.  First, cases vary in their complexity and in the time it takes to get them written.  Second, we do not believe a rush to judgment should take priority over the Infractions Committees’ ability to produce a report that is clear and coherent; this is particularly so when these reports may become the focal point in litigation.  Third, we do not believe it is appropriate to place such constraints on individuals who both are volunteering a significant time commitment and have full-time jobs.  If the problem is that a particular member of the Infractions Committee is not devoting time necessary, then that problem should be addressed directly.

Penalty Guidelines

            We appreciate the level of detail provided by the Working Group regarding the penalty guidelines but we remain unsure we have sufficient information to provide informed assessment.  We share a couple of observations. 
            1.  We agree wholeheartedly with the Working Group that transparency in the process is important.   Research on sentencing guidelines in criminal cases shows that it drives discretion from the open, transparent trial process, with reasons articulated on the record and in written opinions, to the prosecutor’s pretrial discretion in deciding what offenses to charge.   This latter process is not transparent.   We therefore urge caution in articulating a guideline penalty system.  
            2.  In addition, currently most infractions cases involve agreement between the enforcement staff and institution (and often the coaches) on the commission of a violation but disagreement as to the degree of culpability (and whose it is).   The focus often is on the penalties that might be imposed.  The effect of penalty guidelines may be to decrease the level of agreement on the facts as to what occurred because of more certainty regarding the penalties. 
            3. The matrix (in the Proposed New Violation Structure grid) that the Enforcement Working Group provided suggests to us an impression that there is some mathematical certainty to the conclusions as to the violations and that a guideline formula easily is applied.  We have our doubts.1  The less prescriptive the guidelines (an Enforcement Working Group approach that we endorse). the less predictive of penalties they will be.   The tighter the guideline (an approach we oppose), the less discretion to evaluate particular facts and also the more the discretion moves from transparent hearing process to charging decisions.  We also believe that the guidelines will spur more appeals and litigation contesting the “math” of the Infractions Committee’s application of the guidelines.  We are doubtful that the grid you provided was intended to suggest mathematical certainty and suggest there might be ways to make that clearer.
            4.  Yet another concern with the Proposed New Violation Structure grid is that it is unclear who the Enforcement Working Group believes is responsible for the violations and highlights a point we made earlier.   Institution A acts through its head coach.  He also is high enough up the food chain to be synonymous with Institution A.  If the head coach had multiple Level 1 violations, then so too did Institution A.   Did the multiple Level I violations produce a recruiting advantage?  If so, then we fail to see how the fact there were multiple violations is not also an aggravating factor for the institution.  We are particularly concerned with these examples because an institution may not have done a first-rate job in monitoring its program but have done just enough to avoid a finding of lack of institutional control (or perhaps even a failure to monitor).  The penalty example suggests that the Infractions Committee would need to make a finding of lack of institutional control in order to impose penalties on the institution for the competitive advantage arising out of the multiple Level I violations.  We are unsure that we are correctly interpreting the penalty worksheet.  If we are not, then we suggest that more  clarification might help. 

Shared Responsibility

            Without seeing what the Working Group may propose here, we cannot provide concrete comments.  We offer a concern – that shared responsibility is not defined in such a way that institutions and individuals may avoid responsibility for failure to exercise informed judgment particular to the circumstances because all the right boxes are checked.   Rules education and creating and correcting the right forms is no substitute for checking that the forms are completed accurately and that they reflect what in fact occurs.

Definitions in Proposed New Violation Structure Grid

            We do not understand the definition provided for Failure to Monitor in Level I on the Proposed New Violation Structure Grid.  Are there failures to monitor that do not involve negligent disregard?  And how is an intentional failure to monitor not a lack of institutional control?

            More fundamentally, we do not understand the reference in Level I to violations that involve NCAA core principles.  As we understand the work of the Rules Working Group, all NCAA bylaws should reflect core principles; those that do not should be eliminated. 

Overlap in Descriptions of Violations Among the Levels

            We note there is overlap in descriptions, and we support the Enforcement Working Groups apparent conclusion that facts will determine treatment regarding level. 

Conclusion

            It is evident from the material you have produced that the Enforcement Working Group has devoted much work and thought to its proposals.  It is a difficult task.   We very much appreciate all the concrete information as it provides a basis for informed comments.  Once again, we appreciate all that you are doing and are grateful for the opportunity to comment.   

1 Infractions cases vary based on how many variables are involved.  In the example of Institution A that you provide, does it matter that there are 15 SAs who received benefits of $12,900 total?  Is this the same degree of violation were it to be three SAs who received that level benefit?  Or 25?  Or if the benefit was $52,900 rather than $12,900?  Do things change if a booster was involved?  If another coach knew what the tennis coach did?