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NCAA News Archive - 2006
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Baylor University
An unfamiliar number appears on your caller ID at work. After hanging up, you will wish the caller had merely been an IRS agent informing you of a personal audit. Instead, it’s much worse. The call is from Sports Illustrated, and the caller is seeking an immediate response to allegations of major infractions of NCAA legislation. The ring you heard was really the howl of the first wolf. And wolves hunt in packs.
The choices surrounding post-call investigative procedures are critical. One aspect of those procedures is to temper the damage done to your institution by having detailed investigative procedures in place before the phone rings.
To summarize: The wolves will howl, the howling is harmful and needs to be silenced as quickly as possible. Pre-existing investigative guidelines will help to do this along with providing other benefits.
A major infractions case is a big deal and is highly newsworthy. Even preliminary allegations, when made public, will attract wolves of various packs. Most obviously, media members will arrive in packs, seeking answers and comments immediately. You won’t like it, but that’s their job. The allegations will shape water-cooler discussion among those in the institution’s community. And just as importantly, major infractions allegations provide ammunition for negative recruiting by your rapacious competitors.
Whether true or not, the allegations will create chaos. Media members in surprising numbers will appear. The community will want answers now. And it is impossible to quantify the impact on recruiting. So, along with the obvious goal and accompanying ethical responsibility of finding the truth, one goal must be prominent in each major infractions investigation: speed. The pace surrounding investigations was frantic enough when the news broke at 6, 10, and in the morning paper. Now, Internet message boards and forums expedite rumors and information with little concern for veracity.
Another reason to move quickly is to protect the integrity of the investigation. Negative publicity is not only unpleasant, it can damage the investigation. In our recent case at Baylor University, one witness, when asked about a teammate’s potential benefits received, responded that he had "learned about it from ESPN." A number of witnesses struggled to distinguish their contemporary knowledge of an incident from what they had heard about the "facts" from the media.
The howling creates an unfavorable environment for policy and strategy formulation.
When facing major infractions allegations, several important decisions must be made. How will the investigation proceed? Will the institution head up the investigation, hire outside counsel, or take a more passive role in cooperating with the NCAA enforcement staff? Who will head up the investigation if it is internal? What are the time frames? Who is empowered to respond to the media inquiries? These are only a sampling of the questions facing the call recipient. These decisions are important and should be made under optimal conditions. A parking lot full of satellite television trucks does not provide the optimal environment for formulating a strategy. Decisions of such magnitude should be made under conditions allowing reflective thought.
Having preexisting investigative guidelines will benefit the institution in several ways. First, and perhaps most obviously, having the guidelines in place will speed up the process. Rather than asking "what do we do," the institution follows the guidelines in place and essentially begins at step No. 2, having answered the what-to-do questions prospectively. That is, instead of calling a meeting deciding whether to hire outside counsel, who will head the investigation and who will address the media, the call recipient looks to the procedures that have already anticipated these questions. Relatedly, while faster, the procedures will also be those the institution developed when the time and circumstances were conducive to evaluating the best way to proceed. The institution will be proceeding pursuant to procedures developed when the phone was not ringing nonstop.
Because the investigation itself will be part of the story, pre-existing guidelines may provide an immediate and tangible benefit. Shortly after the allegations surface, an early media inquiry will follow: "So, how do you plan to proceed?" or "What’s the plan?" Responding with "I don’t know yet," or "That’s under review" will not inspire confidence in the institution’s constituencies, and the media may opine (and write) that the institution is being indecisive when it needs to be resolute. While at this point you cannot change whether infractions occurred, you can send an early positive message about the institution’s plan to ensure a thorough and credible investigation.
Written investigation procedures also help send the message to witnesses that the investigation is business, not personal. Because the FAR (or other institutional representatives involved in the investigation) will know many of the coaches, players, or other witnesses, the investigation potentially can damage relationships more than is necessary. It helps to truthfully say, "Coach, I don’t like asking these questions, but it’s my job. We have written procedures. The president assigned this responsibility to me before these issues existed." Thus, it’s not personal — it’s just part of the system.
Finally, although institutional control is still somewhat of an I-can’t-define-it-but-I-know-it-when-I-see-it concept, the existence of pre-existing procedures is some evidence of institutional control. Among other issues, the enforcement staff will review the institution’s procedures in place at the time of the violation. In Baylor’s recent high-profile case, the NCAA enforcement staff and Division I Committee on Infractions made positive comments about the fact that Baylor had detailed investigation procedures in place that were implemented and followed. The guidelines were Exhibit A in our Response to the Notice of Allegations.
Baylor’s recent case
The tragic events that occurred at Baylor were, for lack of a suitable word in the English lexicon, reprehensible. They occurred, and no set of procedures or guidelines could make them disappear or lessen their impact. The following description of events is provided for a limited purpose: to help you evaluate the benefits of having preexisting procedures. At the time the phone rings, the allegations are there, the facts cannot be changed, and the issue is how the institution can proceed to expedite the process and uncover the truth. In our case, while the compliance system failed (and is since fixed), the investigative procedures were effective.
Our Sports Illustrated call came on a Sunday afternoon, seeking (of course) immediate comment. Although we were already reviewing certain university files, the outside allegations kicked us into high gear. As faculty athletics representative, I consulted our investigative procedures and empanelled the investigation committee Monday morning. A consultant was hired that day. The former head coach was interviewed at the law school that afternoon. On Tuesday, we contacted the NCAA enforcement staff. On Wednesday, we hired outside counsel. Interviews with student-athletes and staff were proceeding according to the procedures during this time.
Although the internal investigation was not finally resolved until seven months later, by 19 days into the process we had developed information that forced the former head coach to resign. Although nothing about the events could be considered a success, I doubt we could have more quickly and strategically found the truth or demonstrated to the NCAA our commitment to so doing. Indeed, the reaction of leaders in the NCAA community to our guidelines has been telling: Dan Beebe, associate commissioner and chief operating officer of the Big 12 Conference, circulated and discussed our guidelines at a recent Big 12 compliance session. Jo Potuto, chair of the Committee on Infractions, and Kate Hickey, chair of the Division I Management Council, have asked for and received copies of the procedures.
You don’t have to ask: Go to the online version of this article at NCAA.org, where you’ll find the Baylor procedures. Tailor them to meet your needs; but do so before the howls begin, please.
Although the guidelines are helpful in many ways, be forewarned; despite implementing written investigation procedures, this author developed gall stones and an ulcer during the investigation.
Michael Rogers is professor of law and faculty athletics representative at Baylor University. This is adapted from an forthcoming article on major infractions cases in the Seton Hall Law Review, coauthored by Rogers and Rory Ryan, assistant professor of law at Baylor.
Investigation, Determination and Reporting Procedures
I. Commitment to Compliance
(A) The Department of Athletics is committed to delivering intercollegiate athletics programs that are consistent with the University’s mission and that generate the trust and support of its various constituencies. The goal of the Department is to field sports teams that compete successfully against other NCAA Division I teams, that exhibit honesty and integrity, and that exemplify the Christian principles upon which Baylor was founded.
(B) It is the responsibility of the University to control its athletics program in compliance with the rules and regulations of the NCAA (see NCAA principle 2.1.1) and the Big XII Conference.
II. Investigation
In furtherance of its commitment to compliance, the Director of Compliance (DC) shall
carefully investigate any observation, allegation or report of non-compliance with Big XII or NCAA legislation. Following the completion of the DC’s preliminary investigation:
(A) If it is concluded by the DC that the allegation clearly lacks merit, the investigation shall be terminated, or
(B) (i) If it is concluded by the DC that a violation of NCAA legislation may have occurred, the DC shall consult with the Faculty Athletics Representative about the appropriate future course of action. If the FAR believes that a major violation of NCAA legislation may have occurred, the FAR may direct that the investigation be conducted under his supervision until a determination can be made. Alternatively, the FAR may impanel the Faculty Compliance and Infractions Committee (FCIC). Working in cooperation with the DC, the FCIC shall direct the ongoing investigation (including the employment of outside experts if it deems such to be necessary), make the determination whether compliance has not been achieved, and resolve any related eligibility issues.
(ii) The FCIC shall be a standing committee appointed by the President composed of the FAR as chair, an additional tenured member of the faculty, and a lawyer to serve as legal counsel (who may be a member of the law faculty). The two additional members shall each serve an indefinite term.
(iii) The FAR, upon being consulted about a potential violation by the DC, shall notify the President and Athletic Director (AD) that an investigation is underway if, in the judgment of the FAR, the circumstances are serious enough to warrant notice. The FAR shall notify the President and AD if an investigation relating to a potential major violation has been commenced. Any notice shall include a brief description of the possible violation. During the course of the investigation which is the subject of the notice:
(a) The FAR, or if impaneled, the FCIC, shall regularly report to and consult with the President. Any decision or determination made by the President shall be final.
(b) The General Counsel (GC) shall be furnished a copy of any notice sent to the President. The FAR, or if impaneled, the FCIC shall brief the GC on a regular basis.
(c) The FAR, or if impaneled, the FCIC shall regularly communicate and meet with the AD. The AD shall serve as a consultant and resource.
III. Standard for Determination
Any determination of non-compliance shall be based on information presented or developed that is credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs.
IV. Sanctions
(A) Penalties for a secondary violation - If a penalty is warranted, the DC shall impose a penalty in accordance with NCAA bylaw 19.6.1 and assess appropriate corrective measures. At the end of each academic year, the DC shall prepare a memorandum detailing all secondary violations that have occurred that year. Such memoranda shall be furnished to the President, the AD and FAR.
(B) Penalties for a major violation - The FAR, individually, or as chair of the FCIC, if impaneled, shall make a recommendation to the President regarding self-imposed sanctions and corrective measures. NCAA bylaw 19.6.2.1 and decisions of the NCAA Committee on Infractions shall serve as guidance and precedent. The President’s decision shall be implemented by the FAR.
V. Report
(A) If it is determined that a secondary violation has occurred, the DC shall prepare the report and forward it to the FAR for review and comment, if any. Any such report of non-compliance shall be signed by the FAR in accordance with Rule 6.6.2 of the Big XII Conference.
(B) If it is determined that a major violation has occurred, the FAR, individually or as chair of the FCIC if impaneled, in consultation with the DC, shall prepare the report and forward it to the President for review and comment. The FAR shall cause the report to be filed in a manner consistent with NCAA legislation and rules of the Big XII Conference.
VI. Exceptions
The President may authorize variances from or exceptions to these Investigation, Determination and Reporting Procedures that are consistent with Baylor’s commitment to compliance with Big XII and NCAA legislation.
js/Rogers-NCAA/Investigation Determination Reporting Proc
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