"Buy" the Book – Nebraska Infractions Decision Highlights the Need for Effective Textbook Policies, Education, & Monitoring
On Feb. 1, 2012, the NCAA Division I Committee on Infractions issued a public infractions report regarding the University of Nebraska, Lincoln. The report illustrates the danger of a rules compliance shortfall in a seemingly mundane and often-overlooked area of NCAA legislation – the proper provision of textbooks to student-athletes. This is the eighth major infractions case since 2002 involving a violation regarding textbooks (NCAA Bylaw 15.2.3).
The Nebraska case involved the very narrow subject matter of the university issuing "recommended text books" instead of only "required text books" to its student-athletes as set forth in Bylaw 15.2.3. However, the case resulted in two "major" NCAA violations: (1) impermissible benefits to student-athletes; and (2) institutional "failure to monitor." The case was major in nature because the textbooks were issued to student-athletes from numerous university teams throughout a period of several academic years. The failure to monitor finding resulted because Nebraska failed to establish "sufficient procedures" for properly supervising textbook distribution. As a result of the textbook related violations, Nebraska received two years of probation, and the university is subject to "repeat violator" status through the beginning of 2017.
In recent years, inadvertent and essentially innocent institutional errors regarding textbook distribution have resulted in several cases of major violations. The University of San Francisco (2010) and University of Alabama (2009) infractions reports provide additional examples of major infractions resulting from a compliance shortfall related to rules education, procedures, and monitoring associated with textbook distribution. Historically, the discovery of a textbook distribution problem has occurred only after textbooks have been impermissibly provided to multiple student-athletes in various sports over a period of several years. In such cases, it is difficult for the NCAA enforcement staff or Committee on Infractions to consider the compliance mistake to be a "secondary" violation. Under the proposed new compliance model published in February 2012, this kind of violation appears most likely to be a "Level II (serious)" violation, which is defined as "systematic violations that do not amount to lack of institutional control or a significant failure to monitor." However, even under the new model, this kind of violation could conceivably reach the "Level I (most egregious)" violation category if the Committee on Infractions finds a "significant failure to monitor" (which includes "negligent disregard") or a deliberate attempt to provide an impermissible extra benefit.
When Ice Miller conducts a compliance review for a NCAA institution, the institution's policies and procedures regarding the distribution of textbooks to student-athletes is one of the many areas analyzed. Ice Miller regularly finds that institutions have appropriate policies for awarding textbooks, but that institutions often fall short in two crucial follow-up areas: (1) educating relevant university groups about the textbook policies; and (2) monitoring the implementation of the policies to assure effective compliance. Particularly in situations where the campus bookstore is operated by a private entity through a contract with the institution, the rules education and monitoring of bookstore personnel is often far less than ideal.
Although every institution needs policies and procedures that best fit its individual circumstances, it is prudent for institutions to consider the following general guidelines when developing, implementing, and monitoring textbook distribution policies for student-athletes.
Policies and Procedures for Textbook Distribution: Policies and procedures should be in writing and make specific reference to the applicable NCAA legislation. They should address how textbooks will be distributed; how textbooks will be retrieved, "bought back," or otherwise returned; what education and training will be given to relevant individuals; and the manner in which the compliance office will monitor for the effective execution of the policies.
Rules Education: The compliance staff should educate student-athletes, coaches, academic support staff, financial aid administrators, and bookstore personnel regarding applicable bylaws. For example, as illustrated by the Nebraska case, it is important for all parties to understand that student-athletes may only receive required textbooks and supplies for their classes. In-person rules education should be provided to all parties at least annually. Reminders should be sent (e.g., via e-mail) prior to the main book distribution and book return periods at the beginning and end of each academic block, including summer terms.
Monitoring: The most effective strategy for the monitoring of textbook distribution and retrieval may depend on factors such as whether the involved bookstore is operated by the institution or by an independent entity and the tracking capabilities of the bookstore's computer system (e.g, can it identify transactions for specific student-athletes). Regardless, a monitoring process should entail an auditing component twice per academic term, once after textbooks have been purchased (to assure only permissible purchases) and once after the conclusion of the term (to verify appropriate textbook return procedures). The audit may be of a spot-check variety, wherein only selected sport or sports are audited to test the application of the policy. However, ideally, at least once every four years, a comprehensive audit of all student-athlete bookstore transactions by an entity outside of athletics is recommended.
With a conscientious effort to develop, implement, and monitor appropriate policies and procedures, institutions can significantly minimize the risk of facing a major NCAA violation as a result of inadvertent, essentially innocent, textbook compliance errors.
To further discuss NCAA compliance best practices related to textbooks or other 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.