Who’s responsible? Three tips for living within NCAA Bylaw 184.108.40.206
Most NCAA Division I athletics leaders and head coaches are aware of the new NCAA Division I enforcement model's heightened emphasis on head coaches' personal responsibility for NCAA violations in their programs. However, some athletics leaders and head coaches neither appreciate the severity of potential penalties associated with this heightened emphasis nor understand how head coaches can best minimize their exposure to these penalties.
NCAA Bylaw 220.127.116.11 (Responsibility of a Head Coach) applies to all Division I head coaches, not just football and basketball coaches. The bylaw mandates that a head coach "shall promote an atmosphere of compliance" and "shall monitor the activities of all assistant coaches and administers who report directly or indirectly" to the head coach. The head coach is "presumed to be responsible" for the compliance misconduct of his or her assistant coaches and administrative staff members. Consequently, if an assistant coach or staff member of any Division I program commits a Level I or Level II violation, that program's head coach is presumed to be subject to personal sanctions for a corresponding violation of Bylaw 18.104.22.168. These sanctions include a suspension from coaching for up to a full season for a Level I aggravated violation and a half season for a Level II aggravated violation, even when the head coach is not personally involved in the underlying impermissible conduct. In order for a head coach to prevent the application of Bylaw 22.214.171.124, the head coach must overcome the bylaw's presumption of responsibility.
Overcoming Bylaw 126.96.36.199's presumption of responsibility for compliance misconduct by assistant coaches and staff members requires demonstrated personal action by a head coach. A head coach cannot simply rely upon the efforts of a school's athletics compliance office (no matter how good that compliance office is) to demonstrate the head coach's commitment to compliance. As explained by the NCAA enforcement staff, "That's why it's called 'head coach control' and not 'compliance office control.'" Similarly, although a head coach can delegate specific compliance duties to assistant coaches or staff members, the head coach must regularly follow-up regarding those duties. For example, a head coach is unlikely to get credit for assigning an assistant coach to monitor and record a program's practice hours if the head coach cannot document following-up with the assistant coach regarding the monitoring and recording process.
Bylaw 188.8.131.52 does not provide a "safe harbor" whereby a head coach can take specific actions to automatically overcome the bylaw's presumption of responsibility for compliance misconduct by assistant coaches and staff members. As explained by the NCAA enforcement staff, a head coach's demonstrated efforts to promote and monitor compliance can be "all for naught" if the head coach "becomes aware of 'red flags' and does not report them" to the school's athletics compliance office. However, head coaches can act to best position themselves to overcome Bylaw 184.108.40.206's presumption of responsibility. Plus, even if a head coach's actions fail to prevent the application of Bylaw 220.127.116.11, they can positively influence the Committee on Infractions and help mitigate the severity of the sanctions imposed upon the head coach.
To build a basis for overcoming Bylaw 18.104.22.168's presumption that a head coach is responsible for compliance misconduct by assistant coaches and staff members, the head coach must act in three broad areas that the NCAA enforcement staff will scrutinize: communication, monitoring and documentation.
Communication– At least annually, a head coach should meet with his or her school's CEO about compliance. The school's athletics director (AD) and top athletics compliance officer should also attend this meeting, which can be a group meeting with other head coaches. If the CEO is unavailable, it is important for a coach to document a meeting request (through, for example, an email to the AD). At least annually, a head coach should also meet with the school's AD and faculty athletics representative (FAR) to discuss the AD and FAR's compliance expectations, the compliance resources available to the head coach's program, the notion of "shared compliance responsibility" and the head coach's compliance education and monitoring plans. Each semester, a head coach should meet with the school's top athletics compliance officer to review the topics discussed with the AD and FAR and to discuss how to alert the athletics department's compliance office about "red flags," how to obtain NCAA bylaw interpretations and how to pursue waivers of NCAA legislation. Each semester, a head coach should meet with his or her assistant coaches, staff members and student-athletes to discuss the head coach's compliance expectations; the CEO, AD and FAR's compliance expectations; cooperation with the athletics department's compliance office; and promptly reporting compliance "red flags." Beyond these specific compliance-focused meetings, a head coach should establish a habit of regularly mentioning the importance of compliance in (i) coaching staff and team meetings; (ii) booster, alumni group and civic appearances; (iii) TV/radio shows and webcasts; and (iv) camps and clinics.
Monitoring – A head coach's compliance monitoring activity must evidence a commitment to maintaining awareness about compliance "red flags" and promptly reporting identified red flags to the athletics department's compliance office. A head coach should schedule regular presentations by the athletics department's compliance office to the head coach and his or her assistant coaches, staff members and student-athletes. These presentations should focus on awareness of "hot button" issues like booster conduct, third-party recruiting involvement and other topics selected by the compliance office. The head coach should regularly ask assistant coaches and staff members questions to gage their awareness of potential compliance red flags and should solicit their questions and concerns about compliance issues. A head coach should establish a procedure for reporting identified compliance red flags to the athletics department's compliance office and communicate the procedure to assistant coaches and staff members in writing. If a compliance red flag is spotted, the head coach should make sure the established reporting procedure is promptly followed. Other compliance monitoring steps a head coach can take include designating a primary program liaison to the athletics department's compliance office and delegating specific compliance duties to particular assistant coaches and staff members (e.g., specific individuals to monitor countable athletics-related activity (CARAs), recruiting calls, prospective student-atheletes' (PSA) official and unofficial visit travel arrangements, etc.). However, the head coach must regularly follow-up regarding any delegated duties. Additionally, a head coach should make sure that rules compliance is addressed in annual evaluations of assistant coaches and staff members.
Documentation – A head coach's contemporaneous, or simultaneous, documentation of his or her compliance communication and monitoring activity is essential to overcoming Bylaw 22.214.171.124's presumption that the head coach is responsible for compliance misconduct by assistant coaches and staff members. As explained by the NCAA enforcement staff, "If it's not documented, it doesn't exist," and, "If it's not contemporaneous, it's not worth as much." The types of compliance activity a head coach should contemporaneously document include (i) compliance-focused meetings with the school's CEO, AD, FAR and top athletics compliance officer; (ii) compliance-focused meetings with assistant coaches, staff members and student-athletes; (iii) the establishment of compliance monitoring and reporting procedures; (iv) the delegation of compliance duties and subsequent follow-up; and (v) all communication with the athletics department's compliance office. The form of the documentation is not as important as its contemporaneous creation and retention. Agendas or brief notes from meetings in which compliance is a subject can be saved in a binder, and compliance related emails to or from anyone in a head coach's program can be electronically copied to a designated email address or saved in an on-line folder. The key is for the head coach and his or her assistant coaches and staff members to habitually document their compliance communication and activity.
Although it is impossible to guarantee that a head coach's specific actions will overcome Bylaw 126.96.36.199's presumption of the head coach's responsibility for compliance misconduct by assistant coaches or staff members, head coaches can and should take proactive steps to overcome the bylaw's presumption of responsibility or, at minimum, mitigate the severity of the potentially severe sanctions imposed upon the head coach as a result of NCAA violations by subordinates in the head coach's program.
To further discuss "head coach control" 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.