Tuesday, March 26, 2013

NCAA Enforcement & Dilemmas of Self-Regulation

The recent mistakes the NCAA made in its Miami investigation called forth a predictable firestorm from the media mavens who make a career out of attacking the NCAA. I think it is overblown and think we should examine the Miami case in a wider context of the issues facing any self-governing professional association. This means we can admit the mistakes but also see why they occur, how they can be corrected. This approach does not require NCAA conspiracy or corruption. The report that NCAA commissioned from an outside law firm does a good job assessing the legal and institutional issues. The report reveals the NCAA as a reasonably competent, harried and generally effective self-governing group.

The wedding of sports and universities occurred as a philosophical plan and historical accident. 19th century universities saw athletics as a natural extension of a classical education. Student athletes ran the early college teams. Very quickly teams took on outsize importance for alumni and school identity. By the 1870s teams were hiring ringers and nonstudents to play. Football ended up such a violent and important sport that when 13 athletes died in one year, President Roosevelt threatened national intervention. Colleges resorted to the classic American solution of a self-governing association to oversee sports. The NCAA grew slowly and awkwardly into a membership association with 1066 members trying to control the unwieldy and volatile world they inherited, spend money on, benefit from and barely control.

Self-regulating membership associations like the NCAA establish jurisdictional control over standards, membership and accreditation. Engineering, social work, medicine, law, construction and thousands of American enterprises depend upon professionals setting standards for membership and enforcing their existence.

The irony is that the media seldom worries about when doctors kill patients or or engineers design flawed buildings. The stakes in these self-governing professions are far higher than sports but largely ignored. These associations have elaborate systems of self-governance to ensure competent performance and reasonable competition. Professional associations police their own and have investigative and adjudicative procedures for sanctions.

American self-governing professionalism developed as a counterpoint to government control. Education remains no different with colleges subject to review by certifying professional organizations. When professional regulation fails, decisions may end up in the courts or before legislatures.
My point is the NCAA successes and failures are not unusual and reflect normal American practice with voluntary associations setting and enforcing standards.

Successful self-regulation requires member organizations internalize regulated standards. Most professional institutions will have inside compliance staff to help avoid pitfalls and keep standards. In major cases, the organizations might call in outside counsel or compliance experts.

The NCAA reflects this practice where local college compliance staffs work daily with central NCAA enforcement staff. As a professional association NCAA members have strong “affirmative obligations” to internally police and self-report violations.

 The reality of NCAA compliance, then, occurs in hundreds of weekly interactions between colleges and the NCAA staff. College compliance staff self-report, discuss and negotiate over thousands of major and minor issues to prevent, anticipate or creatively solve rules’ challenges. This quotidian reality of compliance and consultation works reasonable well.

The NCAA makes its fair of mistakes. I have direct experience of how UW and NCAA lost a major case against Rick Neuheisel when the NCAA forgot to follow new protocols. They are not perfect, but not fundamentally different from most self-regulating associations hampered by lack of subpoena power and facing incentives to hide information.

The report by Cadwalader Taft report on the NCAA performance in the Miami case exposes a reasonably competent and committed professionals. The report highlights the tensions between field investigation and internal legal accountability. The mistakes reflect the strain between the push to get the information and the legal constraints upon any investigation.

The NCAA faces the same problem all nongovernmental self-regulating groups face—not having subpoena power. Its members legislate rules, and members accept an affirmative obligation to report violations and cooperate with investigations. The vast majority of schools honor this obligation. Affirmative obligation and mutual trust are fundamental to self-governing professional associations such as the NCAA.

However, people lie.

Let me repeat, people lie, withhold information and misdirect.

People with high career stakes have incentives to lie. Miami coaches lied, mislead or withheld. Ohio State lied. North Carolina lied. Florida State lied. Michigan mislead. USC withheld and mislead. Head coaches claim convenient ignorance of the activities of their assistant coaches. New NCAA laws impose absolute accountability on head coaches so they could not slough off responsibility on assistants while benefitting from cheating.

The Miami report reveals that the NCAA investigators often piggy-back on other investigations to maximize capacity to get information. The NCAA investigators have limited budgets and need standard bureaucratic approval. Doubling up extends budgets and helps the NCAA get information they cannot find for lack of subpoena power.

All professional associations double up with formal investigations if they can. The Miami report explained that the NCAA had strong internal limitations upon how it can acquire information. Investigators are prohibited from sting operations or lying to elicit testimony. These are court-sanctioned activities but report makes clear that the NCAA takes limits seriously.

The NCAA internal process worked to a point. The investigator Mr. Ameen Najeer found third parties would not talk with him and hit upon what he regarded as an ingenious solution. He could double up on depositions taken by Mr. Shapiro’s defense lawyer over bankruptcy.

Mr. Najeer reported the idea to his superiors. They discussed it with the Executive Vice President Jim Isch to get authorization for budgets. The need for budgetary approval flows through the report emphasizing the NCAA like everyone else has resource limits and accountability issues. The compliance leaders also sought legal clearance.

This request for a legal opinion should reinforce confidence in the internal process and integrity. The head lawyer mentioned two basic issues. First, the use of outside counsel required approval and reporting to legal office. Second, the legal counsel argued that Najeer’s approach violated internal rules. Counsel opinion nixed the approach. The investigator’s superiors supported this and refused the request.

Up to this point the organization functioned on point. Najeer, however, developed a “work around,” but did not inform his superiors nor get budget authorization. This meant that Perez did conduct depositions for bankruptcy that she shared with the Najeer. This information helped shaped the NCAA bill of charges.

The report correctly faults the internal leadership for not following up on the investigator’s actions and not monitoring more tightly. When the NCAA discovered what Najeer had done, it eliminated the “tainted” information, notified Miami and revised the charges.

The report illuminates how hard investigations are without subpoena and when people with affirmative obligations choose to lie and withhold. We should not forget, that Miami President Shalala’s protestations aside, Miami has created a failed athletic culture with three major implosions in 15 years. The report makes clear how vital confidentiality remains during an investigation.

Good self-regulation requires internal legitimacy, affirmative obligations to cooperate, a responsible rule making process, and strong compliance and consulting programs. These need to be reinforced by a system of investigation and adjudication that is both professional, legally accountable and adjudicators that possess peer legitimacy and expertise but also have some claim to impartiality and fairness.

I think the NCAA process is basically intact and responsible especially in its daily work. It’s major investigations reveal the need for a more professionalized and accountable investigative arm. Moreover, the NCAA faces serious issues with excessive rule making as well as issues of how to ensure consistency across decisions made by the compliance committees. This is not conspiracy or corruption, it is the reality of self-regulation.

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