The Withholding Dilemma – To Play or Not to Play a Student-Athlete Who May Have Violated NCAA Rules
In the late summer of 2013, media reports suggested that the past season's Heisman Trophy winner may have violated NCAA rules by accepting payments for signing autographs. The reports illustrated one of the most difficult athletics decisions a NCAA school can face: whether to play a student-athlete when information raises the possibility that he may have committed a serious NCAA rules violation that would jeopardize his eligibility. The urgency and magnitude of such a situation is exacerbated when a student-athlete possesses a high public profile and the situation is followed closely by the media.
NCAA schools regularly receive or discover information about a possible NCAA rules violation that would render a student-athlete ineligible for competition. Most of these situations are narrow in scope, require minimal inquiry, or occur outside the student-athlete's playing season. If a violation is substantiated, the school self-reports the violation, declares the student-athlete ineligible, and, if desired, petitions to the NCAA's student-athlete reinstatement staff to restore the student-athlete's eligibility. Staff (and, on appeal, SAR committee) decisions are generally prompt, so the process usually does not involve on-going uncertainty about whether a student-athlete can play in particular contests.
However, there are times when a school becomes aware of a possible NCAA violation involving a student-athlete that may take weeks or longer to investigate and the student-athlete's next scheduled competition is only hours or days away. In these situations, a school faces the question of whether to withhold the student-athlete from competition based on incomplete or conflicting information while it investigates the matter.
NCAA rules do not require a school to withhold a student-athlete based on an unsubstantiated possible violation of NCAA rules. Unfortunately, however, there is a lack of clear NCAA guidelines or directives to help a school conduct an inquiry or evaluate whether to withhold a student-athlete during the inquiry. Thus, for the most part, a school is on its own in deciding how to proceed. 
On one hand, institutional risk exists if a school allows a student-athlete to compete despite unresolved questions about his possible involvement in a NCAA rules violation. If a student-athlete competes and it is later determined that he competed while ineligible, victories achieved while the student-athlete competed are subject to being vacated, including NCAA championships or other post-season wins. This is particularly true if a violation involving institutional responsibility (as opposed to a strictly amateurism violation) is substantiated. The NCAA enforcement staff may also question the circumstances surrounding the school's decision to allow the student-athlete to compete during the inquiry. If, with the benefit of hindsight, the enforcement staff concludes that a school played a student-athlete that the school should have known to be ineligible, the enforcement staff could allege that the school violated the conditions and obligations of NCAA membership set forth in Constitution 188.8.131.52. Though rarely alleged, this is a serious (i.e., Level I or II) violation that sometimes accompanies an allegation that a school lacked institutional control. Accordingly, a school has good reason to be cautious about allowing a student-athlete who may have been involved in a NCAA rules violation to compete during an inquiry. Withholding the student-athlete until the inquiry is finished and a fully-informed decision is reached is the surest way to protect the school from the possible repercussions discussed above.
On the other hand, withholding a student-athlete during an inquiry into his possible violation of NCAA rules may be unfair to the student-athlete, who has a limited number of competition opportunities and who may be innocent. It may also be harmful to the student-athlete's teammates (and other stakeholders), if a team's performance suffers during the student-athlete's absence. Withholding a student-athlete can be particularly unfair if the initial information suggesting a possible violation of NCAA rules is of questionable origin or if the information source has a credibility issue or a motive to fabricate information or embellish facts.
When confronted with this dilemma, a school faces two related questions:
(i) Is it worth the risk to allow a student-athlete to compete during an inquiry regarding his possible violation of NCAA rules?
(ii) Is withholding a student-athlete during such an inquiry the school's only practical course of action in case the student-athlete is subsequently determined to have been ineligible during the inquiry period?
There is no absolute right or wrong answer to either question. A decision whether to withhold a student-athlete from competition depends on the nature and scope of the issue under review, the status of the inquiry, the quality of the available evidence at the moment in question, and other factors.
In many cases, a school can with reasonable safety balance its NCAA membership obligations and its interest in treating a student-athlete and his teammates fairly. This balance involves allowing a student-athlete to compete during an inquiry regarding his possible violation of NCAA rules, provided that the school conducts a timely and probative inquiry, constantly evaluates the available information, promptly declares the student-athlete ineligible and withholds him from further competition if such an evaluation substantiates a NCAA rules violation, and documents the inquiry process.
Conducting a Timely and Probative Inquiry
When a school possesses information indicating that a student-athlete may have committed a NCAA rules violation that would jeopardize his eligibility, the school must promptly initiate an inquiry to determine the facts and decide whether the student-athlete is ineligible and must be withheld from competition. Investigative timeliness and thoroughness are keys to demonstrating the school's good faith compliance with its NCAA obligations, and thus minimizing second guessing by the enforcement staff and reducing the possibility of vacating victories in which a student-athlete competes during the inquiry process if he is subsequently determined to have been ineligible.
School policies and procedures should identify who will conduct the inquiry and determine its scope, set forth an appropriate channel for timely and confidential updates to senior campus offices, and provide a media communications strategy that identifies and instructs school personnel who are, and who are not, authorized to comment about an inquiry. The first investigative step is to convene the team responsible for conducting the inquiry. The inquiry team should determine the inquiry's methodology, which includes identifying the investigative tasks to be completed (e.g., interviews, document review, case precedent research) and the parties responsible for each task, establishing a realistic investigative timetable, and implementing the established communication and media protocols. Interviews should be conducted as quickly as is practical, preferably by multiple interviewers at least one of whom has experience with similar inquiries. Student-athletes and school employees who are interviewed must be advised of their NCAA obligations to cooperate with the inquiry, tell the truth, and keep interview proceedings confidential in order to protect the integrity of the inquiry. Interviews must be thorough and probative, demonstrating the school's goal of developing full and complete information – not merely eliciting information that will only support a desired outcome. Interviews that seem inexplicably delayed, that appear scripted, or that lack probative questions will raise red flags for any NCAA staff and committee members who subsequently consider whether a school satisfied its conditions and obligations of NCAA membership and whether contests played during the inquiry process by a student-athlete later found to have been ineligible should be vacated. Interviews should be memorialized through contemporaneous notes or transcribed recordings.
Continually Evaluate Information for Credibility and Persuasiveness
Throughout an inquiry, if a student-athlete continues to compete, a school must continually reassess whether the available information substantiates a NCAA rules violation that warrants withholding the student-athlete.
Because the NCAA provides little direction to help a school make this determination, the evidentiary standard codified in NCAA Bylaw 184.108.40.206 and used by the NCAA Committee on Infractions constitutes a school's best guidance. The bylaw states that the Committee on Infractions must rely upon information that is "credible, persuasive and of a kind on which reasonably prudent persons rely on in the conduct of serious affairs." This standard of evidence is not as high as the "beyond reasonable doubt" standard used in criminal trials, but it requires significantly more than mere suspicion, apprehension, or uncertainty. Based upon Ice Miller's experience with the Committee on Infractions, information which meets this standard includes (i) admissions by "at risk" individuals, (ii) unambiguous documents, recordings or photos, or electronic communication, or (iii) information provided by an on-the-record source and corroborated by another on-the-record source, documents, or substantial circumstantial information. In the absence of other persuasive evidence, neither information from off-the-record or anonymous sources nor information that results in a one-versus-one accusation and denial meets the bylaw's standard.
Thus, a school should not feel obligated to withhold a student-athlete during an inquiry because of anonymous or off-the-record allegations of wrongdoing, because of an uncorroborated on-the-record allegation of wrongdoing from a single individual, or because of circumstantial evidence that does not meet Bylaw 220.127.116.11's standard of credibility, persuasiveness, and reliability. However, if during the course of an inquiry information meeting Bylaw 18.104.22.168's standard indicates that a competing student-athlete violated NCAA rules and rendered himself ineligible, the school must promptly withhold the student-athlete from further competition until exculpatory information results in a changed eligibility evaluation or the student-athlete goes through the SAR process.…"
Document the Inquiry Process and Decision
A school must maintain a comprehensive file regarding an inquiry. The file should include interview notes or transcripts as well as notes from inquiry team discussions. All records and documentation obtained and reviewed during the inquiry should be catalogued. The inquiry file should also contain a report that identifies the inquiry team members, describes the inquiry process, summarized the collected information, analyzes whether a NCAA rules violation occurred and whether withholding a student-athlete was appropriate, and if applicable, lists corrective or punitive measures implemented as a result of the inquiry.
If the enforcement staff or Committee on Infractions subsequently questions whether a student-athlete who the school allowed to compete during an inquiry should have been withheld, the quality of the school's inquiry file can significantly influence assessments about institutional control and vacating contests. Furthermore, if a school decides to withhold a student-athlete and seek reinstatement through the SAR process, a well-maintained inquiry file can speed the SAR process and sometimes lead to relatively favorable reinstatement conditions for the student-athlete.
* * * * *
The decision to play or withhold a student-athlete during an inquiry about whether he violated a NCAA rule can place a school in a difficult position – trying to appropriately balance the school's NCAA membership obligations against its interest in fairness for the student-athlete and his teammates. There is no guarantee that a school can avoid having to vacate games competed in during the course of an inquiry concerning a student-athlete's eligibility if the student-athlete is subsequently found to have been ineligible during the inquiry period. However, by conducting timely and probative inquiry, by constantly and objectively evaluating available information, by promptly withholding a student-athlete if the available information substantiates the student-athlete's ineligibility under Bylaw 22.214.171.124's evidentiary standard, and by documenting the school's good-faith action and analysis, a school can with reasonable safety balance its NCAA membership and student-athlete fairness interests and allow a student-athlete to compete during an inquiry concerning his eligibility.
To further discuss student-athlete eligibility issues or other NCAA compliance matters, contact Ice Miller's Collegiate Sports Practice team.
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.
 Inquiries into possible NCAA rules violations may be conducted in cooperation with the NCAA enforcement staff. In such cases, there may be communication with the enforcement staff about the credibility of the evidence. However, a decision whether to allow a student-athlete to compete is always made by a school, not the NCAA.
Other factors include the anticipated time frame of the inquiry, anticipated access to additional information, and the significance of the contest in question. Withholding from early-season contests or contests unlikely to impact conference standings or post-season opportunities may not be viewed as being as detrimental to the student-athlete or his teammates and may more readily favor withholding.
A debate within the NCAA compliance community is the extent to which an athletics department's compliance office staff should lead, or even participate in, a school's inquiry into potential Level I or II violations given the potential for such investigative involvement to strain the day-to-day interaction between the compliance office staff and the coaches and student-athletes who may be the focus of the inquiry. A school should consider this issue in the context of its own resources and operational structure when formulating investigative policies and procedures.
Exculpatory evidentiary developments can justify a school reinstating a previously withheld student-athlete prior to the conclusion of an inquiry. Similarly, a student-athlete who faces an eligibility and withholding issue in the context of a significant NCAA infractions case can go through the SAR process before the conclusion of the infractions case, provided that the information relevant to the student-athlete's eligibility is sufficiently developed.