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Handling compliance in an intercollegiate athletic program
This is an excerpt from Administration of Intercollegiate Athletics by Erianne Weight & Robert Zullo.
Compliance as a Culture
While attending a meeting about NCAA compliance issues, an exasperated Football Bowl Subdivision athletics director mentioned he was spending more than US$2 million per year on compliance efforts at his institution. Despite this tremendous investment, a rogue coach who chose to bend some rules had brought the entire department into question. The ensuing discussion revolved around the tremendous pressure placed on ADs to oversee actions taken within their robust departments and the challenge of covering all compliance bases through a single compliance unit (regardless of size).
Indeed, in the face of increasing competitive pressure, media scrutiny, and public skepticism, the importance of compliance oversight in intercollegiate athletics administration has become paramount to long-term success in this volatile industry. In order to avoid facing allegations, sanctions, and a tarnished brand, administrators need to be informed, involved, and heavily invested in federal and NCAA rules compliance. As the discussion among athletics directors concluded, the sentiment shared by most was that in order to maximize departmental functionality, compliance must be everyone's responsibility - and an integral part of the department's culture.
Compliance
The principle of rules compliance is established in the NCAA constitution in article 2.8, which outlines the association's responsibility to assist member institutions in their efforts to abide by the regulations. It also provides for "disciplinary and corrective actions as may be determined by the Association" (National Collegiate Athletic Association, 2013a, p. 4) for an institution found in violation of the rules. It describes institutional responsibility for compliance as follows:
Each institution shall comply with all applicable rules and regulations of the Association in the conduct of its intercollegiate athletics programs. It shall monitor its programs to assure compliance and to identify and report to the Association instances in which compliance has not been achieved. In any such instance, the institution shall cooperate fully with the Association and shall take appropriate corrective actions. Members of an institution's staff, student-athletes, and other individuals and groups representing the institution's athletics interests shall comply with the applicable Association rules, and the member institution shall be responsible for such compliance. (National Collegiate Athletic Association, 2013a, p. 4)
The nearly 450-page NCAA Division I Manual outlines the association's constitution and the operating bylaws and administrative bylaws to be followed by each member institution. Athletics administrators are responsible for understanding the manual and other applicable regulatory materials in addition to facilitating compliance by all staff members, student-athletes, boosters, and any others representing the institution's athletics interests. This is no small task, and, as bemoaned by the athletics director in this chapter's opening scenario, even a fully staffed compliance department leaves room for error.
Compliance Office Overview
As with many positions in intercollegiate athletics, there is no real typical day for a compliance staffer. Depending on the time of year, his or her day may consist of entering data and generating reports with Compliance Assistant (CAi) (discussed later in the Compliance Resources section), referencing the NCAA Legislative Services Database (LSDBi) to find case precedents and rules interpretations, reviewing new NCAA legislation, preparing coaches for their annual certification exam, administering the student-athlete opportunity fund, ordering NCAA manuals for staffers, organizing compliance forms, conducting eligibility meetings, monitoring schedules for playing or practice seasons, reviewing coaching designations, compiling athlete book-purchasing forms, reviewing recruiting logs, self-reporting an infraction, conducting rules education, or approving official or unofficial visits. Each of these tasks requires a firm understanding of the rules, appropriate forms and procedures to follow, and the ability to achieve understanding and adherence among departmental stakeholders.
A compliance officer is often an athletics department's most important - and perhaps most resented - employee (Rhoden, 2009). As big-time athletics departments are increasingly scrutinized, a violation can tarnish the reputation of an entire university and affect hundreds of student-athletes and thousands of fans. With these risks in mind, the compliance officer's primary responsibility is to protect the university, and doing so often creates departmental tension as coaches strive to maximize their competitive advantage. This "cordial but often contentious relationship" was explained by compliance director Amy Herman: "There will always be that inherent tension; really it's probably better that way for the protection of the institution. If that tension were to go away, I think you would have trouble" (qtd. in Rhoden, 2009).
Traditionally, compliance has been handled as an internal function in the athletics department with an external reporting obligation. However, in response to the scrutiny associated with major infractions, several new models of compliance structure have emerged. Ohio State moved its compliance office out of the athletics department umbrella with the stated purpose of maximizing objectivity. This adjustment was made in order to centralize all university compliance offices, including those that address research and medical practices (Infante, 2011; Ludlow, 2011). Oregon advertised a position on its compliance staff for an individual with law enforcement or investigative experience. The position is intended to serve as a liaison between the athletics department and the law enforcement community in addition to assuming responsibilities including student - agent and cyberspace surveillance and student-athlete self-defense training. Finally, West Virginia added an employee with experience working for the NCAA, the U.S. government, and legal entities to help with compliance measures, but rather than working in the compliance office, the employee works specifically for the football team (Infante, 2011). As the stakes continue to escalate in intercollegiate athletics, new approaches will likely emerge.
Rules Education
Because of the depth and detail of NCAA legislation, it is rare to find any coach, athlete, or even compliance officer who claims full understanding of all areas for which universities are held strictly accountable. As a result, education is a fundamental area of emphasis for compliance personnel. Most universities require coaches and student-athletes to participate in workshops reviewing compliance basics, and many distribute weekly newsletters with compliance reminders to help administrators, athletes, and coaches understand the repercussions of their actions, the philosophy behind the rules, and the accountability they each carry. Educational efforts must also extend beyond the walls of the department to include boosters, prospective student-athletes, and any others who promote the interests of the department. The NCAA has mandated education for each of these stakeholder groups.
Pursuant to NCAA bylaw 11.1.2.1, a head coach is responsible for creating an atmosphere of rules compliance and monitoring the activities of his or her staff. Therefore, a coach can be held responsible for the actions of the individuals within the program. Informing coaches of this responsibility should facilitate an understanding between compliance personnel and head coaches in which coaches have an ongoing desire to create efficient monitoring systems, learn more about legislation that affects their processes, and ask questions when in doubt. If red flags do arise, coaches should clearly understand that it is their responsibility to immediately report suspected and actual rule violations. Building strong relationships and facilitating an atmosphere that encourages continuing education are critical to efficiency in a compliance system.
Compliance director Amy Herman addressed the dynamic between coaches and compliance officers: "We don't expect them to know all the rules, because we don't know all the rules, and we deal with it on a daily basis. What we expect of them is that they know enough of the rules to know when to ask. If they have a question about something or if something raises even a tiny red flag, that they know to pick up the phone and make the call to us" (qtd. in Rhoden, 2009, para. 8). Similarly, an assistant athletics director explained the policy at Memphis for coaches to ask before they act: "When in doubt, let us figure it out" (qtd. in Rhoden, 2009, para 10).
Recruiting
Recruiting is a vital - and volatile - step in the pursuit of competitive excellence in intercollegiate athletics. This importance has led coaching staffs to work long hours reviewing junior film and senior recruiting lists in order to narrow a class of 1,000 prospects down to 25 signers (Feldman, 2007). Because of the need to bring in a top class year after year, staffers feel constant pressure to entice student-athletes by demonstrating bigger and better facilities, unique selling points specific to a program, and anything else that might convince an up-and-coming superstar to sign a national letter of intent. Successful Michigan State basketball coach Tom Izzo described recruiting as the worst part of his job.
It has gotten to the point where there are too many people involved. There are too many people that do not have anyone's best interest in mind, and I struggle with that. I also struggle with being able to go into a kid's home and telling the kid what he wants to hear instead of what he needs to hear. I'm not a very good used car salesman, and I don't want to be a good used car salesman. (qtd. in Hemminger & Bensch, 2007, p. 59)
Each year, college coaches, graduate assistants, and other staff members involved in the recruiting process are required to pass an exam demonstrating knowledge of NCAA bylaws in order to become certified to recruit off campus. These exams serve as an educational tool to inform coaches of new legislation and to verify their knowledge of the bylaws. Theoretically at least, this process should negate the possibility of violations deriving from lack of knowledge about the bylaws. The exam is 30 questions long, and in order to pass it a test taker must correctly answer 80 percent of the questions and complete the exam within an hour. If a person fails, he or she is allowed to retake the test an unlimited number of times with a minimum of 30 days between attempts.
Each division and each sport has unique contact periods and specific rules; however, a similar vernacular is used in all recruiting bylaws (see the Recruiting Definitions sidebar). Each year, the NCAA releases the recruiting calendars for Division I and Division II sports that have specific recruiting time periods. The calendars designate dates for contact, evaluation, quiet, and dead (no-contact) periods. Division III institutions are allowed to begin recruiting through unlimited telephone calls and recruiting material as early as a prospect's first year in high school. Division I coaches are allowed to begin recruiting prospects following their sophomore year in all sports other than football and women's basketball' Bylaw 13 covers specific regulations for each sport and recruiting method. Additional recruiting rules and processes are covered in this book in chapter 5.
Violations and Infractions
Despite a compliance officer's best efforts, most institutions commit several violations a year. These are generally innocent mistakes, referred to as "secondary violations," and they typically involve an isolated or inadvertent breach that does not or is not intended to provide a significant recruiting or other type of benefit. Rather, they stem from a lack of knowledge about intricate legislation, a miscommunication between personnel, or an oversight. Most secondary violations are self-reported through a standard form and resolved administratively, often through self-imposed minor penalties.
Repeated secondary violations, however, may be elevated to major infraction status, in which case the institution becomes subject to the process and penalties associated with such infractions. Major infractions provide an extensive recruiting or competitive advantage. Institutions accused of major infractions are investigated by the NCAA enforcement staff. An investigation is generally launched because the staff has reason to believe that an institution has intentionally broken rules in a way that yielded a significant competitive advantage (NCAA Rules Enforcement, 2014).
When sufficient information is discovered to warrant an investigation, the enforcement staff provides a letter of inquiry to the university president or chancellor. At this point, the enforcement staff conducts an investigation to determine whether rule violations occurred. Primary methods used in the investigation typically include interviews and information collection through documents such as telephone records, bank records, and academic transcripts. If a major violation is discovered, a notice of allegations is sent to the member school's president or chancellor, copied to the athletics director, the executive officer of the conference, and the institution's faculty athletics representative. At this point in an investigation, the school must respond to the allegations, and a hearing date is set with the relevant NCAA infractions committee.
The enforcement committee compiles a case summary outlining the allegations, the individuals involved, and any other relevant information. All parties receive the information at least two weeks before the hearing date. If all parties accept the allegations in the report, a summary disposition may be conducted in which the school, the individuals involved, and the enforcement staff cooperate to confirm the violations and propose penalties in an effort to bypass an in-person hearing. The committee on infractions then reviews the report to decide whether the terms are acceptable or a hearing is needed. If a hearing is necessary, penalties are announced six to eight weeks after the hearing.
Each NCAA division has a committee on infractions. The number of members on the committee ranges from five (Division III) to ten (Division I), and the membership includes lawyers, member-school law professors, and individuals from the general public. The committees serve as independent groups responsible for assessing penalties against institutions and individuals who break NCAA rules (NCAA Rules Enforcement, 2014).
Penalties for major violations vary depending on the severity of the case but generally involve termination of the guilty staff member's employment, preclusion of postseason competition, forfeiture of wins throughout the time frame of the noncompliance, fines, and limits on scholarships or recruiting visits. The most significant penalty, often referred to as "the death penalty," can include eliminating a sport for at least one year, eliminating athletic scholarships for two years, and eliminating NCAA voting privileges for four years. This penalty is applicable only to repeat offenders, and to date it has been implemented only once - at Southern Methodist University in 1987 after a series of major violations.
The NCAA has been criticized by some for punitive and seemingly unfair methods of rules enforcement. The effort to govern is complicated by the fact that the association's investigative and enforcement power is limited. An institution or individual that commits a major infraction has not committed a crime addressable by the legal system but a violation for which the response is limited to NCAA sanctions on member institutions, staff members, and student-athletes. The penalties, therefore, for past violations are often shouldered by future administrators and athletes.
The burdens associated with the investigation process - and the negative publicity and financial implications that can come with a postseason ban or other penalty - have caused many institutions to employ outside legal counsel to regularly self-investigate. This action can head off an NCAA investigation and the associated strife.
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