When NCAA President Myles Brand issued a directive six months ago for various committees to adopt a "student-athlete-first" or "kinder/gentler" approach when considering academic-waiver requests, eligibility appeals and reinstatement cases, he knew the most challenging issue would be giving student-athletes the benefit of the doubt without the membership doubting the benefit.

Indeed, though the goal was to be more responsive to student-athlete needs by granting them relief in situations for which they had no culpability in the violation, the initiative initially made some Division I members uneasy because of its potential effect on competitive equity. But Brand maintained the primacy of the student-athlete as the reason for the philosophical shift.

He said while competitive balance is genuinely important, it is not the primary pillar of the NCAA structure. "The student-athlete is to be at the center of all we do," he said. "In fact, all our literature, including the NCAA Manuals, says that student-athlete welfare and success is the NCAA's most central principle. It is time our actions match our written intent."

That means if a Division I student-athlete who intends to redshirt plays in an exhibition game because the coach incorrectly informs him or her that it isn't a countable contest, the student-athlete should be granted relief even though precedent might say otherwise. Or if a transfer student-athlete participates in a contest before the institution completes the one-time transfer-exception paperwork, the student-athlete shouldn't automatically be an eligibility casualty as his or her predecessors may have been. And if a transfer student-athlete in softball is a credit short of eligibility because of an academic advisor's mistake, she shouldn't have to sit out a year just for being an innocent victim.

Those are the types of things the Division I Student-Athlete Reinstatement Committee (SAR) and the Division I Administrative Review Subcommittee (ARS) and other groups responsible for administering eligibility appeals and academic waivers have struggled with over time. Those committees in the past have applied a philosophical approach that relies on case precedent and competitive equity as guideposts, which usually provided no relief even in cases that clearly transcended the intent of the rules.

"Since its inception, the NCAA has established a legislative process that tries to create and maintain a level playing field so that schools of all shapes, sizes and philosophies can compete together over a broad range of sports in the same division or subdivision," Brand said of the competitive-equity genesis. "That competitive balance has been steadfastly protected in both the legislative and interpretative process through the years. An unintended consequence, though, is that from time to time student-athletes are disadvantaged or harmed by that concern for competitive balance."

Committees have wanted a way out of that vise for some time. Members have said it's not only embarrassing but also difficult to explain to the membership or the general public when a student-athlete can't play because of what appears to be a minor violation that wasn't even his or her fault.

"There were a number of us who felt frustrated that we had to follow precedent and look out for competitive equity first and foremost," said Rob Aronson, who chairs the ARS. "There were numerous cases in which I felt student-athletes were getting the short end of the stick because we were operating from the principle of competitive equity first. I think the majority of committee members welcomed the change."

SAR Chair Carolayne Henry sees it that way, too. She said her group had been wanting to find a way even before the directive to grant relief to student-athletes who had no culpability in the violation. "The new approach has helped us get there quicker than we would have on our own," Henry said.

Significant shift

The new approach represents a significant philosophical shift from competitive equity first to student-athlete well-being first. That sounds simple enough, but some members, accustomed to the old approach, have resisted the change. Though competitive equity may not have been the best starting block from a student-athlete-friendly point of view, the membership had become accustomed to it and was aware of the ground rules. Aronson said under such circumstances, committees such as his were rarely able to grant relief if it could be remotely argued that the school could gain a competitive advantage by doing so.

But the new approach changes the dynamic, and committees such as Aronson's are making the transition to the more student-athlete-friendly outcomes.

"It's not that competitive equity isn't an issue anymore," said Aronson, the faculty athletics representative at the University of Washington, "it's just that it's not the starting place. There are many more instances where we feel we can give relief because a deserving student-athlete would be helped where we really aren't upsetting competitive equity."

More than 100 student-athletes who would have been negatively affected under the old philosophy already have been provided relief from ARS, SAR and other groups. While committees have embraced the change, though, there still are concerns among a membership accustomed to making sure their neighbors don't gain an unfair advantage.

"Generally there's an understanding of the goals of the kinder/gentler approach -- those being not simply assuming that the old process or precedent produces the right or proper decision," said Southeastern Conference Associate Commissioner Greg Sankey. "But those who are involved in the implementation of the rules or those at the coaching level who are involved in the competitive side may have some questions about how this affects them.

"If you're dealing with the regulatory side on a campus and you've said 'no' for two years on an issue and all of the sudden there's an appeal that changes the answer to 'yes,' then it affects your credibility. We have to be sensitive to that. Likewise, if you're involved in coaching and you've been told 'no' and made some decisions that involved student-athletes, then all of the sudden there's a 'yes' and somebody is playing, that's a tough situation to accept or understand."

Sankey, who supports the new approach, said that what committees may not realize is that a kinder/gentler decision reverberates beyond just the student-athlete or institution directly involved in the case. He said a "yes" outcome for one student-athlete affects the hundreds of others who've taken steps to make sure they don't have to ask in the first place.

"It's important to understand that there's a significant number of athletes affected by a decision that may appear to affect just one or two," Sankey said. "There might be 100 others who have conducted their affairs in a certain way in order to retain eligibility. For the handful who haven't and then receive relief -- even though their actions may have been well-intentioned or not malicious -- those other 100 forfeited opportunities or structured their life in a certain way to avoid being in that position."

Sankey said those concerns are present in any number of situations -- from seemingly minor cases to more significant ones. He cited a simple example of golfers over the holiday break playing on their own but carrying their school bag -- a violation of rules. Those athletes were granted relief and did not have to miss any competition, but there were many other golfers who may have purchased their own bag or used an old one to make sure they followed the rules.

Now while that may not cause a competitive-equity tremor among Division I schools, other cases may. Perhaps the most high-profile case in recent months occurred in January when the Division I Management Council reviewed the case of an international basketball student-athlete who had been declared permanently ineligible because he had competed with professionals before enrolling at an NCAA school. The permanent-ineligibility standard was adopted in July 2002 and applied to individuals who enrolled at NCAA institutions after August 1, 2003.

The student-athlete in question, however, was enrolled in his second year at a junior college during the 2002-03 academic year, and there was confusion about whether he should be subject to the permanent-ineligibility standard or the maximum eight-game suspension in place before the new penalty was adopted. The SAR ruled that no relief should be given in the case, but the Council decided that the confusion surrounding the effective date of the more restrictive standard created too much of a gray area. After review, Council members actually amended the effective date and ruled that the student-athlete who would have been permanently ineligible under the new standard should in fact be subject to the old.

While the decision demonstrated a level of fairness and flexibility that benefited the student-athlete, it also affected institutions that may have wanted to recruit the student-athlete but did not because they interpreted that the athlete had competed professionally and would not be eligible under current rules. As one Division I administrator said, "There were schools that intentionally backed off recruiting that individual that are now playing against him." Thus it was a kinder/gentler decision that rubbed hard against competitive equity.

Henry, the SAR chair, said a membership comfortable with what it believes to be the established boundaries may struggle to accept those shifting borders, even when the shift may be the right thing to do.

"When you generally accept what a particular rule is, you expect all institutions to follow it. When there are institutions that do those things we request them to do and then they see other institutions that don't and then receive a waiver, that causes a little more turmoil," said Henry, the associate commissioner at the Mountain West Conference. "People may say, 'You told us the directive was this, and now that directive has changed. We were recruiting this student as well. Why weren't we granted relief?' "

Sankey agreed, noting that a membership accustomed to being regulated may struggle to cope with exceptions.

"There's a tendency and perhaps even a desire -- it may be human nature or just part of our industry -- to find the boundaries," he said. "You may push against those a bit, but there's an understanding that there are yesses and nos that apply, be it on the court or in eligibility. When those boundaries start to shift, it's not apocalyptic, but on a given day in a given office, it may seem like the world has shifted."

Changing boundaries

People close to the student-athlete-first initiative find it interesting that their perspective depends largely on whether they are filing an appeal or watching their competitor file one. Aronson said there's a tendency for schools to think that when an innocent student-athlete has been the victim of even a serious error, it's "unconscionable" to harm that student-athlete -- unless it's somebody else's student-athlete.

"In other words," Aronson said, "people say it would be horrible not to grant relief out of all fairness to their own student-athletes, but then when they hear relief has been granted to their competitor's student-athletes, then somehow that's not fair."

Such thinking has muddied deregulation efforts over time in recruiting and amateurism, for example. Members admit that the Manuals are as thick as they are in order to plug all the possible loopholes. But some worry that the kinder/gentler option may essentially create loopholes for every student-athlete with a hard-luck situation.

"The membership is still trying to understand what the new ground rules are for compliance and enforcement under the kinder/gentler approach," said Pacific-10 Conference Commissioner Tom Hansen. "As with every change, there's both uncertainty and unrest because of that unknown factor.

"It's a shift from a presumption of guilt to a presumption of innocence. To most people outside the college athletics community that would appear to be a wonderful thing, and I'm sure that to the student-athletes it appears to be a wonderful thing. But the difficulty is that we live with a continuum of rules violations, and we are in such a competitive arena that the rumors of violations by our competitors cause a good deal of unease. So to be told there will be presumption that violations are not taking place for our competitors is a very profound change and one that causes each and every institution pause."

Carol Iwaoka, associate commissioner at the Big Ten Conference, said the membership may be able to embrace the new philosophy, but that there hasn't been a broader discussion of just what falls under the kinder/gentler purview. She said amateurism is a good example. Division I recently completed a contentious two-year debate on deregulating amateurism rules and decided to support most of the existing bylaws in that area.

"Based on that outcome," Iwaoka said, "you would expect not to see much kinder/gentler flexibility in amateurism because the membership indicated its desire to look more at competitive equity in that area."

Thus, Iwaoka said, a decision such as the one with the international basketball student-athlete runs the risk of compromising the governance structure. She said committees being given the go-ahead to create temporary legislative change through a waiver "may be met with a little discomfort."

"In other words," Iwaoka said, "to some it may appear that if you scream and yell loud enough, you'll get your way, rather than realizing that the membership looked at this two or three years ago and decided it didn't want this legislative change."

Aronson insists, however, that the sky is not falling, at least with his group. "ARS is still a tough committee," he said. "If people think we're handing out waivers all the time, that's wrong. Just in looking at the last 10 weeks, most cases have been denied. The ones that clearly fit within the rule and don't justify relief aren't granted relief."

He also said a number of the concerns about what to expect in terms of waivers will disappear once there is greater understanding of the change.

"I know there are concerns out there but I don't think they are warranted," he said. "One of the problems when you have a large organization, so much is communicated by word of mouth. So people get an idea that isn't necessarily in conformity with the facts. We're very concerned about fairness to schools and competitive equity. We will not grant a waiver if the school that made the error is the school that will benefit from it."

When relief is granted, the challenge is to make sure that the error isn't repeated. Committee members do not want institutions to feel that it's OK to slip in the compliance arena because there's a waiver escape available. That may be the concern the membership worries about most -- that institutional accountability isn't being considered.

"One of the things we hear from both inside and outside of the committee is a desire for some accountability on the part of the institution responsible for the violation," Henry said. "The fear is that when you grant relief to the student-athlete even though he or she may not have any culpability, what type of deterrent is there for the institution to not continue to engage in the same type of activities that resulted in the violation in the first place?"

Henry said though her group has no authority to impose any type of condition or penalty on the institution, members have consulted with representatives from the national office enforcement staff to ensure that the institutions or whoever is responsible for the violations are held accountable.

Iwaoka said paying attention in that regard is paramount.

"There was always something valuable about a coach or academic advisor who made a mistake having to tell a student-athlete they're not playing because of it," she said. "If we can build more consistency between the relief part with the institutional corrective actions, then that might send a strong message back to the coach or administrator that this is not about continuing to make mistakes and suffering no consequences."

Iwaoka, in fact, suggested something such as a "sunshine report" that shows the errors made that warranted the request for relief. That would identify schools that had a pattern of mistakes. "That way when the prospect and the parents are reviewing the enforcement history of an institution, they would not only see any major violations but also the 'ow-ies,'" she said.

Henry said that might be a good idea. "This is really the first year we've done this, so of course we'll revisit it in June as we do on our quarterly conference calls. The question always comes up as to what's happening to the responsible party? If we could get a clearer picture as to what was happening with the institutions, then I think people would be more comfortable."

Buy-in build-up

The current comfort level is difficult to gauge because people are still becoming accustomed to the new philosophy. At face value, Hansen said it's a popular stance to have student-athletes receive the best possible outcome when it comes to the application of rules. Another positive outcome of the new approach is for the NCAA not to appear Draconian in the application of rules.

"That's been hurtful in the past to the NCAA's mission of trying to ensure that programs are operating properly when student-athletes who apparently had no intention of violating the rules are nonetheless caught in a situation that is damaging to their athletics careers," Hansen said.

As far as complete buy-in to the new philosophy, though, Hansen said there has been widespread support for the concept but less on the specific application of it. "That probably won't change until more institutions have particular cases or instances with their own student-athletes," he said.

Sankey said any time the membership experiences a mid-course correction on policy, there will be push-back.

"That's doesn't make the change wrong or improper," he said. "But I do think the voices need to be heard and not simply dismissed because they have some input that might help us make the change in an even better manner.

"Nobody should be surprised that there are voices out there saying we may not want to be heading down this path. We shouldn't dismiss those voices, but at the same time we shouldn't just stop what we're doing -- just be certain we're making the change for the right reason."

Aronson believes the reasons are indeed right. He also emphasized that fears shouldn't be based on anecdotal evidence. "If you look at the statistics," he said, "you'll see that most cases still are being denied, and the ones that people feel would create competitive-equity concerns are still being denied. In fact that's a reason given in a large number of our denials -- that it would upset competitive equity.

"We've got athletics directors and senior woman administrators on our committees and they know how upset people would be if you're doing things to disrupt competitive equity. People with concerns need to hear all the facts before they just assume that this new approach is somehow destroying a valuable principle. It's not the easy road people seem to think."

Brand agreed, noting that the majority of cases don't meet the kinder/gentler criteria.

"But the ones that do would have caused harm to the NCAA and college sports had relief not been granted," he said. "This is not a radical change in terms of the number of people who are affected, but it is a radical change in the way we approach each case."

And the NCAA membership is being asked to give that change the benefit of the doubt.

Anatomy of a decision

Perhaps no group within the Division I governance structure is more involved with the new "kinder/gentler" philosophical approach than the Division I Administrative Review Subcommittee. The group chaired by University of Washington Faculty Athletics Representative Rob Aronson is composed of five Management Council members who are charged with considering institutional requests for relief of NCAA rules in extraordinary circumstances.

What goes into making a kinder/gentler decision? Aronson knows first-hand.

"We receive a fair number of instances where someone is transferring, and frequently a counselor, advisor or admissions person gets the NCAA's intricate transfer rules wrong. For example, a very conscientious student-athlete asks either at the school from which he or she is coming or the school he or she is going to -- what do I need to do to make sure that when I transfer I'll be able to compete? They get instructions, follow them, and then it turns out the instructions are wrong.

"So now they're a credit short, or they were going to take a course in summer school but were told they didn't need to, and now it turns out they need that course. The repercussion is that they have to sit out a whole year because somebody didn't give them the right information. In the past, the precedent was 'that's too bad.' And operating from the notion of competitive equity first, the conclusion had to be that there were other schools that followed the rules, and this person didn't, so too bad.

"But now our tendency has been to say, No. 1, if the error is through no fault of the student-athlete -- if the student-athlete did everything reasonably expected -- then the waiver is likely to be granted. No. 2, if the misinformation came from the school the student-athlete left -- so there isn't even a question that the school to which the student-athlete is transferring somehow gave misinformation that works to the benefit of that school in terms of having that athlete eligible to compete -- the waiver is likely to be granted.

"Even before the flexible approach, all three subcommittees proposed season-of-competition waiver legislation that was adopted by the membership for frequent waiver requests that sought an additional season of competition for a student-athlete under prescribed circumstances. For example, there are instances where a coach or someone else mistakenly thinks an alumni game or exhibition game doesn't count, and then the student-athlete is informed that he or she can play in that game and still redshirt for a season. So the student-athlete plays, then sits for the season and then finds out that the game did indeed count.

"Rather than our old philosophy based on case precedent, in which the response was simply, 'too bad -- one second of play counts as a season,' this legislation allows for flexibility within the normal application of the rules when the student-athlete really did not do anything improper. The competitive equity is still there in the sense that you apply the rules to everybody, but the rules might say that if you compete in only an exhibition game and only in the beginning of the season and only for a certain percentage of game time, then instead of losing a season we'll deduct two games for each instance, or something like that. So you may miss two games for participating in a portion of one.

"That's a student-athlete-welfare approach and at the same time one that doesn't negatively affect competitive equity."

Student-athlete-first initiative prompts increased role for staff

One of the outcomes of the "kinder/ gentler" approach is for the process to be more responsive to student-athlete needs and thus less bureaucratic. To accomplish that, committees have granted the national office staff more authority to make at least some of the initial decisions, which has resulted in faster, more student-athlete-friendly outcomes.

Staff members have changed their approach from one focused only on case precedent to one focused primarily on each student-athlete's unique circumstances. Such an approach has resulted in significant outcome differences in the past six months. For example, last year, no staff decisions were rendered in academic-waiver requests involving progress-toward-degree cases. This year, though, staff members have made decisions in about one-third of such cases, and 85 percent of those have been approvals. Interestingly, the AEC Cabinet's progress-toward-degree waiver subcommittee has supported every decision made by staff since implementation of the new approach.

Similarly, the staff has taken a more active role in the area of interpretations. On average, the membership services staff records 20 to 25 interpretations annually. During 2003, 11 of those interpretations carried a student-athlete welfare component, and all were resolved in a student-athlete-friendly manner.

Since August 2003, when the kinder/
gentler directive was issued, staff has resolved 38 cases in favor of the student-athlete.

And for cases headed for the Division I Administrative Review Subcommittee (ARS), staff decided 81 percent of waiver requests in the last six months as opposed to only 43 percent of requests in 2002.

Rob Aronson, who chairs the ARS, said any perceived reluctance to give staff more authority in this regard was squelched when committee members looked at the facts. The group studied previous statistics on how many times the staff had granted a waiver, then submitted the case for ARS review and the subcommittee disagreed. Members also looked at how many times staff had denied a waiver and then ARS overruled the decision and granted the waiver.

"The differences between staff and the subcommittee were infinitesimal," said Aronson, faculty athletics representative at the University of Washington.

Aronson acknowledged a membership concern with increasing the staff's role, but he believes those concerns are overblown.

"There's a feeling out there that the staff doesn't have the membership's perspective and all that, but we found we were coming out the same on almost every issue," he said. "Second, they still send everything by us, and we can at any time say we disagree. From the ARS perspective, we've found staff to be extremely conscientious. Any time they have the slightest question about whether something should be granted, they ask us what we think even though they've been granted the authority to make the decision.

"They're basically saving significant time -- both the subcommittee's time and time of institutions and student-athletes. One thing people don't realize is that when something comes in that's clearly under the guidelines, the staff can just grant it. Otherwise, it may get to us two or three weeks later and it may take another week or two to decide, which means institutions would be getting responses three or four weeks later on something staff knew all along would be granted. The new process is much more efficient."

-- Gary T. Brown