The NCAA News - News and Features

The NCAA News -- October 11, 1999

The 'Chair of Fair'

David Swank concludes nearly a decade of service as head of the Division I Committee on Infractions

BY KAY HAWES
STAFF WRITER

It takes a special kind of person to do what he believes in and what he thinks is fair -- even when that's not the most popular choice. But making hard decisions in the public eye is what David Swank has been about for much of his career.

As a volunteer committee chair for the NCAA, he has been the point person for decisions involving major infractions cases for nearly a decade. He also was at ground zero for tumultuous times at the University of Oklahoma, both as an interim university president during the end of football coach Barry Switzer's career there, and as dean of the law school when Oklahoma law professor Anita Hill testified before Congress.

Mentioned in both Hill's and Switzer's books, Swank also has been quoted in virtually every major newspaper in the country over the past eight years as the chair of the Association-wide NCAA Committee on Infractions, which became the Division I Committee on Infractions after restructuring occurred in 1997.

Swank recently left the committee, his time of service up after the maximum three three-year terms, but his influence on the committee, and on the entire enforcement process at the NCAA, will be felt for many years to come.

Sooner roots

Swank's name may be known all over the country, but his roots are firmly planted in Oklahoma. His father's parents came to Oklahoma in 1889, and his mother's parents were in the state before 1900. Swank's parents met in college in 1905 -- at the University of Oklahoma, naturally.

Swank grew up in Stillwater, Oklahoma, close to both the law and the country. His father and brothers were all attorneys, and the family had cattle -- for a time a dairy operation, at another time beef cattle. It only follows then that Swank is just as comfortable out in the country, fixing fence and exercising his retrievers, as he is in the public eye.

He and his wife of 46 years, Ann Swank, also enjoy fishing in Wyoming and Colorado, and they joke that they live in a tepee. They do actually live in a 12-sided house that resembles a tepee, but it is not leather and it doesn't have a dirt floor. Rather, it's a memorable structure designed by Bruce Goff, a student of Frank Lloyd Wright. Built in 1947 and known as the McGinness House, it was originally designed as a solar home. The Swank family moved in and were the first to actually live in the house in 1966, after the interior had been redone by designer Ray Dragoo.

Swank earned a bachelor's degree from Oklahoma State University, then known as Oklahoma A&M, where he attended with Ann, his high-school sweetheart. In Army ROTC in college, Swank entered active duty when he graduated since it was during the Korean war.

Perhaps one reason Swank is not intimidated by tough decisions or negative publicity is the fact that he is tough -- in an old-fashioned, matter-of-fact military kind of way. Swank was in the 101st Airborne unit in the Army, and he spent 10 years in the Army Reserve Special Forces Unit, where he worked with explosives, jumped out of airplanes and did all of the things one does when preparing for behind-the-lines duty during the Cold War. Swank's only regret was that he was never able to be an Army Ranger.

"I started in Special Forces when I was in private practice, and I stayed in Special Forces after I became a professor (at Oklahoma)," Swank said. "I wanted to be a Ranger, but I broke my arm in hand-to-hand combat in Ranger School. I tried several times to get back in, but I never could."

It was just as well, for Swank's calling was in the law, not in the military.

Into the classroom

When Swank left active service, he returned to Oklahoma to graduate from the University of Oklahoma with a law degree. Editor of the Oklahoma Law Review and a member of the prestigious Order of the Coif, Swank excelled at law. He joined the family business and became a partner in Swank & Swank in Stillwater in 1959.

"It was really Swank, Swank, Swank and Swank," he recalled of the firm that included his father and three brothers, "but I was a Democrat, as was one of my brothers, and we always joked that the two Republicans wouldn't let our names be on the door."

Swank worked in private practice for a few years before becoming the assistant city attorney, then city attorney, for Stillwater. In 1963, the University of Oklahoma called, asking him to be both the university legal counsel and an assistant professor of law. Swank soon discovered that teaching law was his calling.

"I love teaching. I probably will continue to teach so long as I enjoy it and my students enjoy it," he said.

His students obviously enjoy him now. Enough law students named Swank as their favorite professor last year that he won the title of favorite law school professor -- a feat that earned him the right to kiss a pig in a Salvation Army fund-raiser. A photo of Swank smooching the swine is taped to his office door.

"Now whether I was really the favorite or whether they just wanted me to kiss the pig, I don't know," Swank said.

Swank teaches civil procedure and criminal procedure, and he often teaches first-year students. Law school professors use the Socratic method, eliciting the lessons from the students instead of simply lecturing. It's an unnerving process, especially for shy first-year students, but speaking in public is one of the traits law schools aim to teach, Swank said, acknowledging that there are law professors, not necessarily at Oklahoma, who unnecessarily embarrass students. "I don't believe in embarrassing students," Swank said.

"I enjoy students. I think being around students and the daily challenge of teaching keeps you young. It's fun to teach."

Swank also ran a legal aid clinic at Oklahoma for a time, where he led students in the practical practice of law, including the defense of those accused of crimes. "We didn't take any federal money, so we were able to take all kinds of cases," he said. "We took everything from murder to landlord-tenant."

The eye of the hurricane

In addition to teaching, Swank has a knack for administration. He served as an associate dean at Oklahoma from 1975 to 1985, when he became interim dean for a year. That led to eight years as dean of the law school at Oklahoma, briefly interrupted by a one-year stint (1988-89) as interim president of the entire university.

"I enjoyed the opportunity to deal with all the disciplines across campus," Swank said of his time as university president. "It gave you a different insight."

Swank was the faculty athletics representative at Oklahoma for 11 years, but he saw yet another side of the NCAA when he was president.

"When I was interim president," he said, "almost the first letter that came across my desk was one of those wonderful letters from (then NCAA assistant executive director of enforcement) David Berst, saying 'We'd like to come talk to you, you're involved in an infractions case.' "

In addition to that matter, Swank had other pressing issues as president. Football players, and ultimately an assistant coach, were accused of selling drugs. Another student-athlete was arrested on a public drunkenness charge. Because of the previous incidents, the story made The New York Times. The university was all over the media, and it wasn't good news. Ultimately, Switzer resigned. There were those who blamed Swank for Switzer's departure.

"It was a difficult time," Swank said. "Barry was a great coach, but things just got out of hand."

Swank made it through his year as interim president and went back to being dean. The infractions case against Oklahoma was resolved, and Swank thought that was the last he would ever see of the NCAA infractions process.

Stepping forward

Initially, Swank became involved with the NCAA because he was a faculty athletics representative at Oklahoma. Then he served as the faculty athletics representative for the Big Eight Conference, and he was an NCAA vice-president for seven years. He also served on the NCAA Executive Committee.

He was still surprised, though, when he was contacted by the NCAA in 1991 and asked to serve on the infractions committee.

"I thought, 'Well sure, that sounds like a good way of service,' " he said. "I did not quite realize how unpopular it was -- I guess should have realized. It's not a popularity contest, that's for sure."

He became the chair in 1992, a position that ensured he would be perpetually in the hot seat, defending the decisions of the committee, which has the power to take away scholarships and postseason play, enact the so-called death penalty on a program or effectively end a coach's career with a show-cause order.

With the NCAA's governance restructuring, the committee divided into three, leaving Swank as the chair of the Division I infractions committee.

Even with reviewing only Division I cases, the committee met about six times a year, making the commitment to the committee a large one, in terms of time spent at meetings and in terms of time spent reading case materials before the meetings.

"All told in our meeting time and travel time, it took about a month of time each year," Swank said. "But I think one thing people don't realize is how much reading material there is."

Swank recalls one case that was exceptionally well-documented. "My secretary came in and she said, 'You have a FedEx package here,' and I said. 'Well, just bring it in and put in on my desk,' and she said, 'No you don't understand.' Well, they finally came bringing it in with a big cart, and it was three Xerox boxes full. I eventually estimated that that record was about 20,000 pages."

Other memorable cases were 5,000, 6,000 and 7,000 pages.

"And the committee members try to read all of it," Swank said. "In one case, I remember I spent three days reading a file and finally about the time I finished, I realized I had to recuse myself from the case because one of our former assistant coaches was at the school.

"We tried to be very careful, if there was any possibility of conflict of interest, we recused ourselves. If there was a Big 12 Conference school involved, I recused myself."

Typically, the committee also hears a case for as long as it takes to finish it, no matter how long that takes. Usually only one major hearing is scheduled for a weekend, because all the committee members have regular jobs to return to by Monday. Sometimes the cases can start at 8 a.m. and go until 9 or 10 p.m.

"I don't like to do that because everybody starts getting tired, but if it was necessary to do that to finish it, we would," he said. "If you're in the middle of a hearing, you need to finish it. It's not fair to stop and tell people to come back in two or three months."

The longest single case Swank ever heard lasted for three days.

"In that case, a student-athlete had taped one of the coaches and a question came up about whether or not those tapes had been doctored," Swank recalled.

"We spent one day with expert witnesses from the FBI and other sources, and we listened to the tape several times to try to determine whether it was doctored or not."

Swank believes the time investment -- both preparing for the case by reading all the materials and hearing the case until every member on the committee is satisfied that their questions are answered -- is absolutely necessary for a fair hearing.

"Sometimes the committee asks a lot of questions," Swank said. "But when you're dealing with these kinds of issues that are as important to the schools and to the individuals as they are, you want to get all of the issues out and make a decision that's as fair as it can be. And sometimes you might ask too many questions, but I think it's probably better to ask too many questions than too few."

Legacy of fairness

While "fair" is the word others have used to describe him, it's also the word Swank uses to describe what he tried to be, both on the committee and as a professor, administrator and attorney.

Over the years, Swank has given special attention to coaches and student-athletes, who often don't have legal counsel with them in the infractions hearing (an administrative process, not a legal one).

"You think about a regular courtroom -- with a judge at the front of the room -- it's a bit imposing," he said. "But you walk into an infractions hearing and there are eight people, infractions committee members, sitting across this long table, and over here on the other side is the NCAA enforcement staff -- it has to be somewhat intimidating, not to the university president so much, but to the coaches, student-athletes and others.

"We tried to keep it informal and tried to reduce the intimidation as much as possible. But for some of these people, what they're facing is the end of their career. It's important not to take that lightly.

"I suppose my whole law practice, from the time I started, basically was centered on trying to be fair. And I try to drum that into my students, that a sense of fairness is important.

"I don't like the Rambo way of trying lawsuits today. There are times when you've got to be aggressive. But particularly as a judge or as a hearing officer, you have to be fair to both sides; you have to bend over backwards to be fair."

That posture must explain why, after so many years and so many high-profile duties and decisions, Swank is still standing tall.

Q&A with David Swank

Q From the standpoint of operating integrity and the welfare of the student-athlete, is intercollegiate athletics in a better or worse condition than it was 10 years ago?

A I would say it's probably in better shape than it was 10 years ago. I was a little disappointed to receive those recent statistics on graduation rates from 1992-93. But I think as you continue to do research and review the statistics again, say over the last seven or eight years, you're going to find that graduation rates are increasing for the college student-athlete. And of course there are a few folks who will play college athletics and who will go on to play in the pros, but a great majority of them will never do that.

I think we're doing a lot more for the student-athlete. I think most major campuses today -- and I have to speak for Division I because I don't know that much about Division II and Division III -- you will find very excellent academic support programs now that didn't exist 10 years ago.

There were some schools building them, but I understand now that there is actually an association of academic advisors (for student-athletes) and most schools have an academic advising office. I think at most institutions these are professional people who obviously want to keep their athletes eligible, that's one of the reasons they're there, but I think you'll also find that as educators -- and most of them have some educational background -- they're just as much interested in making sure these kids graduate, because they know they're not going on to professional athletics.

I think another major change is that now we permit students to not only get their scholarship but also some Pell Grant money. That's something that always worried me before. A student-athlete would get a scholarship, but if the student-athlete came from a poor family, how was he or she going to buy clothes or whatever? They could work in the summer, but that just wasn't enough.

I think that's been a real important change. It recognizes that the scholarship can't provide everything, and (the change) provides a legal and appropriate way to provide some assistance to poor student-athletes.

I'm not in favor of paying student-athletes. We're almost professional anyway, and if you start paying the student-athletes you might as well just be a professional league.

Q What do you think of the NCAA legislation that allows student-athletes to work during the school year?

A I think it's a terrible mistake. I think that's going to be one of the areas that the infractions committee and the enforcement staff are going to have to deal with. That type of work program could be subject to great abuses. If somebody wants to take shortcuts, you're opening the door.

And the normal student-athlete, they're carrying 12 to 15 hours, they need time to study, they've got practice. When are they going to work? I think (the legislation) opens itself up to abuses that aren't necessary.

The student-athlete who qualifies for the Pell Grant can get some help that way; the student-athlete who doesn't qualify, there's some expectation that the family can help out with expenses.

Some of the old work programs were just make-work, and I'm worried that we'll go back to that.

And there are enough NCAA rules right now, it seems like a mess to try to run down all the athletes and make sure that they're actually working at a real job. It just seems like too much for compliance officers to do.

Q Do you believe there are more, fewer or about the same number of rules violations and abuses in college athletics than when you began your service with the infractions committee? Are there more or fewer major violations?

A I think there are fewer. When I first got on the committee, very few schools had compliance officers. Some of the big schools did, but a lot of the time they just assigned an assistant coach to do that.

This entire industry of compliance officers has been built up, and we now have compliance officers on most campuses. I think most institutions are finding that if (the compliance officer) is able to get support from the university president and the athletics director, then they are able to stop some of the violations.

I also think that institutions are doing a better job with education. We now publish a student-athlete handbook (at Oklahoma) that 10 years ago didn't exist. Other schools publish them, too. What they're doing now is trying to give coaches and student-athletes all the rules and regulations (to aid in compliance).

One of the things we have found is that the school that reports the most secondary violations probably has one of the best compliance programs, because with the NCAA Manual being what it is, there is no way in the world you could operate without some violations. You are going to violate some rules. A school with a good compliance program recognizes when the rule is violated. They write or call the NCAA and it's a secondary violation, and they get a slap on the wrists.

I think there's also an attitude of cooperation now. Again, I think you'll find some schools where that's not true, but I think most schools have an attitude of cooperation between the university president and the NCAA in the operation of the athletics programs. As a result of that, I think there's a lot more compliance. So, I think it's changed a lot. There will still be those major cases, but I think the overall attitude has changed.

Q What do you think are some of the major changes you've seen in the last eight years as chair of the committee?

A Well, one has to be the separation of the enforcement staff and the infractions committee, and also there have been changes in the enforcement process. It used to be that the enforcement staff wouldn't record any statements. They would dictate a report when they got back to their office and they would send it to the person and ask them to sign it. What we found is that in some of the cases you'd get into a 'he-said, she-said' type of deal. So now we require most statements to be recorded. I think that's been one of the most important changes.

We do see more cooperation (between the NCAA and the institution) in the investigative process than we used to. They may even conduct joint interviews of witnesses. That cooperation is an important improvement in the process.

Another change is that the rules have become more complex. It's the coaches who generally cause the rules to be put in place. Recruiting rules and financial aid rules generally result in what the coaches and athletics directors want. That's why the rules book is so complex today. Somebody needs to sit down and take a very good look at the rules book and see if it can be simplified.

In 25 years we have gone from 100 pages of rules to 453 pages of rules for just one division. Whether that's an improvement or not, I don't think so. We never get rid of a rule, we just seem to add them. It's easy to see that coaches alone, without a compliance officer, couldn't keep up if they tried.

Q What do you think are the two or three greatest problems in college athletics today and what are the problems you see playing a prominent role in the future?

A I think the sports-agent issue is one that is going to continue to get worse, in part because of all the money involved -- the amount of money the agent makes and the amount of money that the student-athletes make.

And even though (potential professional athletes are) a limited group on any campus, the ability of the infractions process to handle that is restricted. You can deal with the student-athlete, but the people who are really causing the problem, the sports agents, are really beyond our control. I think that's going to require legislation, probably in all 50 states and from Congress.

I think gambling could emerge as a real problem. We've had gambling scandals in the past from time to time, but it seems to be getting much more pervasive. I think that's going to be a significant problem for athletics programs.

The infractions process can deal with it some, but again that's probably more the place of criminal law than the infractions process. If you get into point shaving or game fixing, those are criminal law violations, and though you may have an NCAA infractions problem, the criminal prosecution is going to deal with those.

I see those as two problems sort of looming on the horizon.

Recruiting still continues, obviously, to be a major issue. The amount of money at stake (in the NCAA men's basketball tournament, for example) is phenomenal. The coach who becomes concerned that they've got to make their program successful immediately, it can cause them to take some shortcuts.

Q What would you change about the enforcement process if you could?

A In the last 10 years, we've been trying to improve the process to provide greater due process, and I think there's really been a improvement in that, in part brought on by the infractions committee itself, in part by the Lee committee and in part by the Infractions Appeals Committee.

I think there's one thing that needs to be done as an improvement to the process. Any time there was an appeal, as chair I handled the appeal. That's an unfortunate position for the committee to be placed in, where you have a member of the committee actually arguing to the appellate body that the decision it made was correct.

I really recommended that they get outside counsel to do that. I think eventually the NCAA is going to have to realize that for this appeal process to work effectively, there's got to be some outside counsel representing the (infractions) committee before the Infractions Appeals Committee.

Q What would you change about the NCAA if you could?

A I guess I'm not sold on the new reorganization, but that's one where we'll just have to wait and see how it works out. I guess one of my concerns is that it places too much power in the hands of the commissioners, and that concerns me a little bit.

The organization had become bulky the way it was, but on the other hand I'm not sure that this particular reorganization was the way to go. But let's wait and see. It may work out perfectly. One important thing it has done is get the presidents involved. I think that's a good idea. Many times they don't have time. That's the one big drawback.

I'm just concerned that there still remain some grassroots control, and I don't think (the power) should be as centralized as possible.

The annual Convention, though it could be a mad-house at times, I think provided a little bit of democracy to the organization.

I probably would not have divided the infractions process into three divisions. I probably would have changed the Committee on Infractions so you had representatives of Division II and Division III so their input was there. Division III has not had a case since (reorganization), and Division II has had only a couple.

I think if you have one Committee on Infractions, you have somewhat uniformity in the decisions, so that you're treating Division I, II and III schools similarly for the same infractions.

Swank instrumental in establishing staff position for Committee on Infractions

BY KAY HAWES
STAFF WRITER

Early in David Swank's tenure as chair, the Committee on Infractions hired a staff member, independent of the NCAA enforcement staff, to assist what was then an Association-wide committee.

The new position was based on a recommendation from the Ad Hoc Committee to Review the NCAA Enforcement Process, chaired by the late Rex Lee, then president of Brigham Young University.

Robin J. Green, now NCAA assistant chief of staff for Division I, was the first person to fill the position.

"That's almost (Swank's) legacy, to get a separate staff person hired," Green said. "I know that he was instrumental in helping the separation (between the enforcement staff and the committee) develop. He treated the enforcement staff and the school the same, because he thought that made it a fairer process.

"And I think he was very fair as a committee chair. He was always very concerned about giving everyone the opportunity to speak. Sometimes that meant hearings ran long, but he thought, as I think most everyone else did, that the extra effort was well worth it."

The nature of the job sometimes made it difficult, Green said, but Swank didn't seem to mind.

"I think it's a high-pressure job, but he always handled it very well," Green said. "He took some heat on a number of occasions, and that was OK with him. He didn't mind being the point person, the unpopular person. The important thing to him was that the case had been properly handled and everyone had been heard as well as treated fairly.

"And the hours that he put in to prepare for the hearings were incredible. It was a testament to his belief that everyone should get a fair hearing, by the most knowledgeable and prepared committee possible. In a sense, he set the standard for others in preparedness."

Green said Swank saw the appeals process as a positive feature of the infractions system. "He agreed with the process," she said, "and he wasn't just looking for a rubber stamp (of his committee's decision), because that wouldn't have been fair."

Bonnie L. Slatton, a former member of the infractions committee and chair of the department of sport, health and leisure at the University of Iowa, said Swank's sense of equity and character are traits she will remember.

"My main characterization of him is that he's extremely fair," Slatton said. "There were a few of us on the committee who weren't attorneys, and we always joked with him that, for a lawyer, he had incredible integrity.

"But seriously, I do think it's important, especially as chair of that committee. He's also easy to work with. He listens well and he responds well to questions. He's honest and straightforward, and he gave leadership to the committee."

Slatton also saw Swank working, along with the rest of the committee, to further establish the separation between the infractions committee and the enforcement staff.

"I think we kept trying to establish the fact that the committee is really separate, and over the years we made a difference in that," she said. "We often had as many questions for the (enforcement) staff as we had for the institution. I think there's an obligation that we all saw to be fair to the institution."

Shep Cooper, who ultimately succeeded Green as director for the NCAA infractions committees, also recognizes Swank's commitment to fairness.

"David was a very decisive chair and he has a keen sense of justice," Cooper said. "It's an important role -- the chairs of the infractions committees oversee the adjudication of infractions cases, the findings and the imposition of penalties. He's been involved with the NCAA and its policies and procedures on different committees for about the last 30 years."

While Swank's involvement with the NCAA stretches back quite some time, it is his tenure on the Division I infractions committee that will be remembered, even by those who were in the position of presenting cases to him.

"Swank's long tenure as chair was very unusual," said David Price, NCAA vice-president for enforcement services. "He's a very professional person. He prepares exhaustively, has a nice balance between being very serious and maintaining an affable decorum, and obviously he's very capable. I have a healthy respect for him."