Avoiding Cooperative Principle Problems Related to Enforcement Staff Interviews
Before the NCAA enforcement staff conducts any on-campus interview about potential NCAA bylaw violations in an institution's athletics program, the enforcement staff provides a Notice of Inquiry to the institution's chief executive. The purpose of the Notice of Inquiry is two-fold: (i) to advise the institution that the NCAA has started an investigation and (ii) to set forth the enforcement staff’s expectations regarding the institution's obligations under the "Cooperative Principle" (Current Division I Bylaw 32.1.4, or Bylaw 19.2.3 pursuant to the newly adopted enforcement model).
An institution's fulfillment of its Cooperative Principle obligations is critical. Pursuant to Bylaw 18.104.22.168 of the newly-adopted enforcement model, "failing to satisfy the responsibility to cooperate may result in an independent allegation and/or be considered an aggravating factor for purposes of determining a penalty." Furthermore, Bylaw 19.1.1(c) of the newly adopted enforcement model establishes that "failure to cooperate in an NCAA enforcement investigation" constitutes a Level 1 violation, which is the most severe violation level.
The Cooperative Principle consists of two primary duties: (i) developing full information, and (ii) protecting the integrity of an investigation. These reasonable duties seem straightforward, and responsible institutional leaders always want their institutions to fulfill these duties, even if the enforcement staff and an institution disagree about the existence or scope of a potential violation.
Unfortunately, it is easy for institutional representatives to accidently breach the enforcement staff's Cooperative Principle expectations about preparing for and conducting investigation interviews. This is because the enforcement staff expects interview-related conduct that is very different from the conduct institutional representatives (including legal counsel) might in good faith undertake regarding civil depositions, regulatory inquiries and other non-NCAA interviews.
In a non-NCAA setting, when an institution learns that institutional personnel will be deposed or interviewed about potential institutional problems, institutional leaders and legal counsel might reasonably take some or all of the following steps: (i) initiate an internal inquiry to promptly discover and fix problems; (ii) discuss potential problems with the relevant operating unit's manager; (iii) inform the institutional personnel to be deposed or interviewed about the nature of the inquiry; (iv) discuss likely deposition or interview subjects with the institutional personnel to be deposed or interviewed in order help them organize their thoughts and provide accurate information; (v) counsel the institutional personnel to be deposed or interviewed that brief, non-speculative answers (e.g., "yes," "no," and "I don't know") can be appropriate responses to some questions; and (vi) ask pointed questions during the proceeding in order to place institution-favorable information on the record.
However, as the following excerpts from a standard Notice of Inquiry demonstrate, each of the above-noted actions that institutional representatives might reasonably take in regard to depositions or interviews outside the NCAA setting could violate the enforcement staff's Cooperative Principle expectations.
Notice of Inquiry Excerpts
The institution should not conduct any independent investigation or interviews or engage in any independent investigative activities without prior authorization from the enforcement staff.
Institutions often believe they have an obligation to inform the head coach of the sport program under review of the existence and nature of the inquiry. This should not occur without the knowledge and approval of the enforcement staff.
If the enforcement staff asks the institution to schedule interviews with institutional employees, the institution may inform the interviewees that the purpose of the interview is to determine whether the individual has knowledge of or involvement in violations of NCAA legislation, but the institution should not disclose the specific nature of the inquiry or the specific allegations in advance of the interviews.
An institution should not engage in interviewee preparation beyond an explanation of procedural matters.
Administrators, coaches and student-athletes should not be instructed to provide only "yes" or "no" answers, or to limit their answers to minimal information.
If institutional representatives are present during interviews, those representatives are expected to ask probative questions designed to elicit full and complete information. If institutional representatives establish a pattern of asking leading questions designed to steer interviewees to provide specific answers, the institution’s level of cooperation may be questioned.
An institution's chief executive can choose to receive a Notice of Inquiry in writing or via a phone call with the enforcement staff. If the chief executive receives the Notice of Inquiry orally, the chief executive must carefully document the specific Cooperative Principle expectations explained by the enforcement staff. Regardless of how an institution's chief executive receives a Notice of Inquiry, the chief executive must also assure that all of the institution's representatives who may participate in the investigative process (e.g., legal counsel, athletics director, faculty athletics representative, human resources administrator, NCAA compliance director) understand the interview related restrictions expected by the enforcement staff. Furthermore, the institution should consider strongly encouraging all institutional personnel scheduled to be interviewed by the enforcement staff to retain personal legal counsel familiar with the NCAA investigative process in order to help the scheduled interviewees appropriately understand, prepare for, and participate in the enforcement staff interview process, without risking institutional representatives acting in a manner that could potentially violate the enforcement staff's Cooperative Principle expectations.
To further discuss the NCAA enforcement process or other NCAA compliance issues, contact Ice Miller's Collegiate Sports Group
This publication is intended for general information purposes only and does not, and is not intended to, constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.