Enforcement Staff Changes - Consequences for Schools
The NCAA Presidential Working Group on Collegiate Model – Enforcement has proposed new NCAA Division I enforcement model with a four-tiered classification of NCAA infractions, as well as changes to the penalty structure and Committee on Infractions. The Division I membership will vote on the proposal in the spring of 2012. The new model proposal has received significant attention within the NCAA membership and from the national sports media. However, a less publicized but still very significant development in the NCAA enforcement environment has already occurred with the reorganization of the enforcement staff and some changes to enforcement staff policies. This note highlights some important enforcement staff changes.
Enforcement Staff Reorganization
The enforcement staff has reorganized into three main groups: the Development Group, the Processing Group, and Information Management.
The reorganization's guiding principles are (1) to enhance the enforcement staff's ability to independently generate and develop information about egregious or intentional violations, particularly in the sports of football and men's basketball; and (2) to improve the timeliness and efficiency of the investigative process.
The Development Group
The development group consists of two specialized sub-groups of investigators, one for football and one for men's basketball. These distinct intelligence gathering units are a response to the membership's concern that the target sports pose the highest risk for serious violations. The men's basketball sub-group is largely the continuation of the former Basketball Focus Group. Each sub-group is tasked to proactively generate leads, gather intelligence, and develop infractions cases regarding potential violations in their respective sports. For example, the development group will conduct enhanced oversight of the recruitment of high-profile men's basketball and football prospects, will monitor social media, and will attend non-scholastic athletics events like AAU basketball tournaments and 7-on-7 football camps. The development group will actively pursue strategic networking and source building in order to develop new sources of information about potential violation. At least in the near term, the development group will also perform the investigative work done by the former Agent Gambling Amateurism group. Women's basketball, baseball and track & field are additional sports that the development group may began to proactively monitor and analyze.
The Processing Group
The processing group will investigate and will coordinate the final stages of all major infractions cases, including cases involving football and men's basketball. In football and men's basketball cases, it will be the primary group involved in interacting with members institutions after the main investigative activity is completed and the enforcement staff has determined that a major violation has occurred. For example, in all cases, the processing group will draft a Notice of Allegations or a summary disposition report, conduct prehearing conferences, draft case summaries, and present information at Committee on Infractions hearings. In cases involving sports other than football and men's basketball, the processing group will also be the principle investigating group, similar to the way most investigations have occurred in recent years. In cases involving football and men's basketball, the processing group will conduct field investigations in conjunction with the development group once potential football or men's basketball violations at specific institutions are identified.
The Information Management Group in "desktop investigators" is a new component of the enforcement staff. This group will assist organizing and analyzing information and records collected by the investigative teams. This group will also monitor social media, conduct internet searches, search databases of material collected in prior investigations for information relevant to current investigations, and analyze NCAA case precedents.
Consequences for Schools
Increased Monitoring of Top Prospects
The recruitment of top prospects, particularly in football and men's basketball, will be under increased scrutiny by the development and information management groups, who will proactively search for recruiting "red flags" such as prospects' relationships with non-traditional third parties (e.g., AAU coaches or family advisors), how unofficial visits and family travel on official visits are paid for (particularly on visits beyond driving distance), and comments on social media sites that suggest recruiting violations (e.g., photo with a famous alumnus, "tweet" about going to a nightclub, etc.). Consequently, coaches and compliance administrators need to be equally proactive in monitoring and documenting the backgrounds of individuals involved in the recruiting processes, unofficial and third-party recruiting travel, and recruiting visit activities.
Likely More NCAA Investigators on Campus
The enforcement staff's increased size and increasingly proactive approach is likely to result in more frequent on-campus visits from NCAA investigators who are pursuing independently developed leads. For football or men's basketball issues, standard enforcement staff procedure will involve multiple investigators on campus visits, at least one investigator from the development group and one from the processing group. In cases which the enforcement staff considers potentially egregious, as many as five or six different investigators may participate on the case. A campus visit from the enforcement staff is now more likely to result from information not previously known and reported by a school, less likely to be anticipated by the school, and likely to involve a team of investigators. Therefore, it is increasingly important for schools to have in place an up to date policy for responding to contact from the enforcement
staff about a pending campus visit. One part of that policy should include plans for the retention of outside counsel with experience handling NCAA infractions matters.
Earlier Notice of Inquiry
Before the enforcement staff conducts on-campus interviews about possible violations involving a school, new enforcement policies require the enforcement staff to provide the school's CEO with an oral or written Notice of Inquiry. This is in stark contrast from earlier practices, when the Notice of Inquiry could only be sent in writing and was rarely sent before the conclusion of one or more rounds of on-campus interviews. The date of the staff's contact with the CEO will "toll" the four-year statute of limitations regarding major violations. Additionally, now that an on-campus visit by the enforcement staff triggers official inquiry status, public institutions need a plan regarding whether to accept an oral notice of inquiry and how to respond to open records inquiries regarding possible NCAA investigations. An institution's plan should account for applicable open records laws and the specific language of relevant open records requests.
Deadlines for the Submission of Institutional Documents
Because the enforcement staff has concluded that a major obstacle to the timely processing of infractions cases has been institutional delay in providing requested records to NCAA investigators, the enforcement staff now requests institutional documents in writing with specific submission deadlines. The enforcement staff has pledged to establish deadlines that are not arbitrary or unrealistic. However, schools that do not meet deadlines and appear to be engaging in "foot dragging" could be subject to an additional "failure to cooperate" charge by the enforcement staff. Consequently, when a school receives a document request from a NCAA investigator, the school needs to implement a three-part protocol: (i) begin document collection as quickly as possible (even before the written request is received in cases where the relevance of certain documents is obvious), (ii) notify the enforcement staff in writing regarding initial concerns about meeting a submission deadline, if any; (iii) monitor the document collection process, and promptly notify the enforcement staff about unanticipated collection delays.
Notice of Allegations Issues
In past cases, the enforcement staff sometimes shared drafts of a potential Notice of Allegations with an involved school prior to the publication of the formal Notice. The enforcement staff's new official policy is to not share draft Notices. The new official policy also calls for the Academic and Membership Affairs staff (AMA) to review a Notice before it is finalized. AMA review will make it more difficult for schools to challenge whether conduct alleged in a Notice of Allegations actually violates NCAA bylaws. The increased difficulty in challenging marginal allegations after the publication of a Notice combined with the "no sharing" policy makes it even more important than before for a school under investigation to fully develop and clearly present relevant mitigating information as early as possible in the investigative process, certainly before the enforcement staff begins substantial work drafting a Notice of Allegations.
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.