Monday, April 1, 2013

Reforming Not Outsourcing NCAA Enforcement

We can assume the NCAA will continue to investigate and adjudicate violations of the membership’s rules. We can assume the decisions will continue to call down firestorms of protest. We can assume that the process will periodically make mistakes that lead to flawed judgments.

Endless variations exist for addressing self-regulating investigations and adjudication. Organizations can keep  them in house or outsource them. Most recent critics call for outsourcing the functions to eliminate possible conflict of interests. Yet outsourcing has serious problems with accountability. Whatever it does, any self-regulating organization such as NCAA has to be relentless in recruiting, training and professionalizing investigators. I also think NCAA internal reforms on  infractions and sanctions have a chance to make adjudication more consistent, legitimate and transparent.

Self-governing professional associations live with the paradox that peer governance creates inherent conflict of interest. Peers legislate for the good of the profession, but also legislate to protect competition and protect an equal playing field. Self-governing groups are tempted to over-legislate to offset the ability of the powerful to dominate and anticipate abuses. Professional enforcement faces pressures through clubby hiring practices. Peers judging peers invites the perception that peers will go easy on each other as in law or medicine or will be too hard on each other by trying to cripple teams as in sports.

These inherent strains lie at the heart of complaints about the NCAA and all self-governing associations. The most commonly tried "solutions" include: deregulation; outsource investigations; outsider based tribunals.  Let’s examine the three in NCAA context.

DEREGULATION:       The modern NCAA has made deregulation a central tenet. Deregulation should minimize picayune rules that lead to intrusive enforcement and burdensome record keeping.
Deregulation, however, is not as easy as it sounds. Most rules were legislated to combat booster abuse or excessive tactics by very rich schools. The elaborate regulations limiting meal expenditures and travel, for instance, came up to stop lavish banquets, private jet flights or clandestine booster gifts. Limits upon communication arose because student athletes complained about being bombarded.

Deregulation will advantage very rich schools, invite garish expenditures and intrude more on students. Schools have already asked for an override on a package of deregulations that would delimit recruiting staff and numbers of sent information. Deregulation makes a lot of sense in many areas and can lessen record keeping and interventions, but we have to accept the costs in excessive and lavish expenditures and launching new arms races in outlandish recruiting ploys.We have to accept that the rich will get richer under deregulation.

OUTSOURCING INVESTIGATIONS:              This approach is often tried and usually taken back in house, but might be worthwhile on a selective basis.

Day-to-day self-reporting, negotiations and discussions lead to the internal resolution of thousands of compliance issues. The NCAA should keep internal precedents and strong staff knowledge to make this work well. NCAA central compliance trains individuals who are recruited to work at schools, and this spreads professionalism. Central staff sponsors seminars and teaching as well as communication updates. Educational and everyday standard enforcement belong in house.

1.     Major investigations are another matter. The NCAA has demonstrated uneven ability to recruit, train and hold accountable field investigators. This is not an easy job, and investigators face resistance, withholding, and lying. Direct NCAA connections, however, help accountability and link continuously with legal staff and senior leaders. This approach does not guarantee against mistakes as my UW case demonstrated with a 4.5 million dollar judgment or against bad judgment as Miami illustrates.
a.     It may make sense, as the government and corporations do, to use outside investigators during very high profile cases. This should be a rare occurrence but might make sense if very high revenue schools or schools with histories of NCAA conflict are involved.
b.    It might make sense to narrow investigation scopes and bring sequential judgments to expedite the time and encourage earlier resolution of outstanding remaining violations. This will be hard, however, because the ultimate decision about "lack of institutional control" often involves linking together a pattern of infractions over time and across several areas. 
b.     Many groups usually bring outsourced investigations back in house for three reasons.
                                               i.     They cost more money, and outsiders have incentives to extend the cost.  The association loses control over investigators, and some agencies hire untrained and undermanaged folks to maximize profit.
                                              ii.     Legal accountability is harder to maintain with external investigators.
                                            iii.     Investigators will want return business and will adapt to the ethos of their client. Many outsourced consultants end up looking like internal staff to get return business.

2.     It makes far more sense for the NCAA to hire better-qualified investigators and train and monitor them better. This requires relentless effort. Outsourcing involves a small universe of specialized firms, and most of them will have colleges as clients. This dual client world would create even more conflicts of interest.

OUTSOURCE ADJUDICATION JUDGMENTS:                       The most vexing dilemma remains how to ensure fairness and legitimacy of infraction decisions. Past practice had a 10 person Infractions Committee meet to adjudicate all the major infraction cases brought by NCAA after investigation. Although often criticized for slowness, the slowness in bringing cases really results from the difficulty of doing investigations without subpoena power.

The Infractions Panel steadfastly refused to be bound by precedent or guidelines for penalties. It insisted each case was unique and had to be addressed on its merits. This lead to what many, myself included, saw as sanctions that often did not make sense in light of past practice. It made it hard to write careful decisions that would guide colleges. It made it hard to see consistency across not only decisions but application of sanctions.

This refusal to create consistent patterns generated the suspicion that the Infraction Committee would go easy on or strike hard for political reasons. Very little evidence exists to support this contention, and certainly no strong link has been made between members of the panel who are respected and careful in their decisions. In addition members with conflicts and conference affiliations recuse.

New NCAA rules try to address these issues in 2013.

1.     The NCAA  will impose strict accountability on head coaches for the actions of their assistants and staffs. This will prevent the endless excuse giving that head coaches have used for the last decade.
2.     The NCAA is creating four categories of infractions that have guidelines for sanctions. This will produce greater clarity and predictability for schools.
a.     These categories are: Level I—Severe breach of conduct, Level II—Significant breach of conduct, Level III--Breach of conduct, and Level IV—Incidental issues. Each level has a set of guidelines for sanctions.
3.     The Infractions Committee will grow into a pool of 24 individuals from whom panels will be formed to adjudicate cases. This will permit greater attention and quicker action on the range of cases.


The proposals make a lot of sense to me but have aroused misgivings especially around the issue of consistency across panels. Yet little consistency exists now because of the refusal to deploy precedent or guidelines. The new panels will have greater clarity on magnitude of the violation and stronger guidelines on the sanctions. This will focus its obligations to explain decisions. I appreciate unique circumstances arise but believe the Infractions panel has an obligation to explain its deviation from past practice or its expansion of precedent. This would require greater transparency in decisions.

I believe that the new pool approach could be improved by requiring an independent nonaffiliated neutral on each panel. Many other professional associations have gained from ensuring one voice is neutral but expert and the proposed pool can easily accommodate such individuals. This required neutral places an internal discipline on deliberations.

Outsourcing in such sensitive areas is overrated and not validated by other experience. I believe that the new approach on specifying violations and guidelines has real hope of increasing quality, transparency and clarity of decisions. The NCAA has to get a handle on consistency and internal accountability in its quality of investigators as well as ensure some neutral voice whether on the panel or with internal ombudsmen in its work.

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