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.

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. 19^th 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.

The Mad Logic of Early College Athletic Commitments

The University of Washington got a commitment to play football this summer from a fourteen year old quarterback. The school had actually offered the scholarship to the fourteen year old, and the child and his parents accepted. This once would have raised eyebrows, now it has become the norm. This new normal in college athletic recruiting is wrong in so many ways but will continue because it is driven by a crazy but real logic.

It all begins with the  professionalization of kids sports in the United States. The professionalizing of 10 year olds and their sports is driven both by parents and the cycle of AAU and club teams. Early recruiting of college athletes also drives the process. Two years ago the basketball coach of USC (now departed) offered a scholarship to a fourteen year old. Everyone gasped, now it is becoming a norm across all sports to make offers to kids who have not even gotten their first year of high school grades. This whole approach mocks of the ideal of a college "student" athlete scholarship. In the world of AAU sneaker-assisted basketball, it is not unusual for a 15 year old to have over 100 scholarship offers.

The drive to early scholarship offers is not healthy or even reasonable. Coaches don't like it. Let me repeat, Coaches do not like it, but they have embraced it with gusto. The reason being that if they don't act fast, someone else will swoop in. This is one of those economic market situations where everyone is bidding to the lowest common denominator. Most college coaches, right now, are not comfortable unless they have already locked up most of the class of 2014--that means most offers have gone out to sophomores and freshmen!


Coaches make these offers to  "kids" of 14 and 15. The coaches have no real clear view of the young person's character, body shape and emotional and physical development. Let's not forget that you are offering scholarships to student athletes. No one has any idea what kind of a student a fourteen year old will be in high school let alone college. While coaches have a pretty good fix on the body shape of 15/16 year old young women, many scholarships are now going out before the young women hit puberty and risk huge body and emotional changes that will impact the young players. .

For a long time football resisted many of the early offer trends because football depends so much upon getting a clear fix upon the bone/body structure of the players. Boys  generally developed much later and coaches held off. No longer the case. Football has succumbed to the rush of early offers and now 14 year old quarterbacks like here at UW and others get offers from major colleges.

One of the main drivers for early offers besides the dynamic among coaches, is the desire of parents for certainty. Most parents see sports as an investment. Parents and sometimes guardians have invested thousands of dollars and thousands of hours of time and energy into supporting the athletic development of their children. For many parents, especially from working class and low social economic status homes, athletics represents the way out for their children. In some homes, the investment hinge upon a dream of their children become professionals and that jackpot will benefit the entire family.

Parents want certainty and return on their investments. The earlier the offers, the less uncertainty. So for the calculations of parents wanting a return on investment and reduced uncertainty, early offers are a godsend. Unlike their kids, parents will let coaches know of offers and play off offers from one coach to another. They are just acting like good parents trying to get the best deal for their kids but also trying to get the best return upon 10 years of investment in time and treasure for their children.

Coaches' associations have tried to develop guidelines urging coaches to not bring students in for visits early or not offer scholarships until late junior year. Self regulation always fails. It only takes one coach to make one offer and the whole system collapses because that coach now has a competitive advantage over coaches who are waiting for the proper developmental or times to make offers. So coaches compete to the bottom offering scholarships earlier and earlier. They don't like it, but do it. If they don't someone else will.

When a prominent coach lionizes a young man and offers him a scholarship at the age of 14, it is hard to respect the 14 year old's decision. The kid is 13! How many of us want to hang our futures on decisions we make when we are 14? The parents may be involved and even stage managing the offers, but this is not about a reasonable decision by kid or coach. No one should have to commit their lives at age 14 and be held to it.

These offers are always "informal" and usually made at sports camps which are exempt from many NCAA rules about no contact with recruitable student athletes. Students are not even allowed to make official visits to colleges until they become rising seniors in  of high school. Yet by now most coaches have already sown up their class of 2013 and are working on 2014 and 15 classes. Very very few student athletes actually make decisions based upon official visits. In college recruiting coaches are not allowed personal contact with student athletes until those official visits. But there are exceptions, whole universes of exceptions.

Most recruits meet coaches at summer camps. The camps are critical for coaches to augment salaries especially for their assistant coaches, raise money and to get to see and connect with student athletes. The contacts made at camps, often when kids are barely in their teens, are critical to coaches and kids. Both see the camps as mini-tryouts.

In addition, many students take unofficial visits. These are often self-financed visits where a student athlete and parents or guardians visit a campus, meet with coaches and players long before their senior year. Students can watch practices meet with advisors and do anything that could be done on an official visit.

Many kids can't afford to take these unofficial visits, so the whole unofficial visit world has a class bias to it. It also generates a geographic bias since kids can visit schools that are relatively close. Students get around these limits with the help of club teams. If a club team just happens to play a game or tournament in the vicinity of a university, the student can visit the campus compliments of the club travel. Besides schools save money by not having official visits. Many schools regard the official visits as a waste of time and money since almost all the recruiting is finished by the time "official" visits even begin.

In addition, coaches fly all over the country to watch AAU, club and high school teams at tournaments. The coaches strut and vie with each other to be seen. Coaches have to do it because all the other coaches are. They have to prove to the student they are recruiting that they care enough to be there. They also have to babysit students who have committed but may be still tempted by other coaches.

So the press to earlier and earlier scholarship offers simply blasts air into the furnace of unregulated pre-college sports and clubs. No one has figured out how to end the cycle.

The whole early recruiting game is now big news. Scouting services, especially in the revenue sports of basketball and football, assiduously track who is commited to whom. Rabid fans follow specialized sites to see who is getting the biggest name recruits. Media shows up for athletes to announce decisions, even though coaches cannot publically comment upon their recruits. So the media and private camps and tournaments and scouting services as well as AAU and club teams now have vested economic interests in keeping the recruiting process lively and full time.

Nothing is stopping the mess from getting worse. The drive to make offers of scholarships to younger and younger students continues even though coaches, faculty and administrators recognize it makes no sense. Only some sort of national NCAA legislation will get at the problem. Self regulation by groups or coaches simply does not work.

The NCAA has twice in the last five years rejected the proposals for their Academic and Recruiting cabinets for rein this in or outlaw all informal offers until junior years. Coaches want it, but the fear of enforcement problems, grossly over blown, and the interests of the top teams in keeping their monopoly grip on the best kids, leads to its defeat. So one more gross distortion and corruption of the ideal of the student athlete occurs. We offer scholarships to kids who have not yet attended a high school class. When faced with that hypocrisy, the entire NCAA membership votes to continue the practice.

I don't know the solution, but the excuse that it can't be enforced is no longer good enough to permit these practices to continue.

Drinking Athletic Kool-Aid: Presidents & the U Conn Basketball Appeal

Last week the NCAA squashed the waiver appeal of University of Connecticut. U Conn was appealing their exclusion from the 2013 NCAA basketball tournament in light of a decade of academic negligence in its powerful basketball program. Its rolling average of graduating players fell significantly below 50 percent over the last two to four years. The appeal and its publicity were orchestrated by U Conn’s president Susan Herbst, a fine political scientist, who warned the NCAA that the school would be “deeply disappointed” if it’s appeal was denied.

Sometimes, but not often, I feel sorry for University Presidents who must defend their athletic programs. Poor Mary Sue Colman at Michigan had to stand on the same platform and defend Coach Rich Rodriquez, who could care less about educating his players. Graham Spanier joined several other Presidents and ended a marvelous 20-year career pulled down by Joe Paterno’s disgrace at Penn State. Only Gordon Gee seems immune from the disasters of his Ohio State program.

Some Presidents just drink the Kool-Aid and don’t really worry about the ordeal or humiliation of having to defend illegal or educational malpractice. Kentucky’s ex President Lee Todd, Jr. defended his basketball coach John Calipari as a model coach and “educator.” Annoucing his retirement Todd distilled a Kool-Aid presidency when he wished the UK could be as “good academically as it is athletically.”

President Herbst is doing her best to prove that athletics trumps academics. She has actively campaigned in the media against the injustice of her team missing the tournament for its long-term failure to worry about educating basketball players.

To understand the difficulty we need to remember that U Conn is already on probation and that Calhoun was prohibited from coaching several games this year. The team has also forfeited scholarships. Calhoun has always played rough and tight on NCAA rules. Like Kentucky’s Calipari or West Virginia’s Huggins, he epitomizes a breed of super coach for whom rules are a bother, not a guide. Educating and graduating ranks even lower, and two national championships persuaded the University to ignore his dismal graduation rate.

U Conn AD Jeff Hathaway also resigned under pressure. His relations with Calhoun and the basketball violations had a lot to do with his leaving. Herbst oversaw the his review and swift departure. Its unclear his departure was about violations, low academic standards, Calhoun's dislike or excessive power from angry boosters. 

The critical variable here is that like Paterno at Penn State, Calhoun’s success has woven into the texture of University of Connecticut’s brand and marketing. U Conn's rise to any national visibility is driven by its two basketball programs.  Whoever is President has to defend the program because the University’s reputation rides on the coattails of the basketball program.

U Conn’s appeal tells us about how important the NCAA tournament has become. The tournament overrides all other considerations. The school will give up all the money, cancel games, limit recruiting and even ask Calhoun to bring in old pros to talk about going to class, just let them go to the big dance. Herbst argues that “the university’s proposal” “fully accepts responsibility for past failings.”

In its willingness to jettison everything it can, U Conn identifies the deepest truth of college basketball—the tournament trumps everything. The publicity, story telling and reputation enhancement are invaluable to marketing and branding a school. It gains attention to schools that traditional academic standards would never gain them.

U Conn’s major argument “as an educator” is how unfair it is to change rules in the middle of the road and to punish the existing players/program for actions by past players.

If we accept her second argument, then no NCAA punishments could ever be levied against programs, ever. The basic unit of responsibility for the NCAA and American civil law is the institution. The existing players and coaches are almost always not the ones who committed the violations.  The players and coaches have often moved on and due process takes years. The point for the NCAA is that institutions are responsible, not just individuals. Using U Conn’s arguments no corporation could be held liable for past actions in pollution or discrimination because the people in place did not commit the violations.

As for the new rules changing, they have been discussed for years. U Conn was quite comfortable losing scholarships and doing recovery plans while not graduating students. The new rules were passed by the Presidents and immediately accepted. Everyone knew the time limits had changed. Thanks to the Secretary of Education everyone knew which  schools were in trouble for the last three years. The NCAA regularly changes rules with relatively limited run-ups in many areas such as rules governing games that might impact recruiting profiles of teams. The school had years to clean up its act, but no one bother to push the coaches.

I think the arguments are transparent attempts to get to the tournament regardless of costs. The recovery plan may actually make a difference but not until Calhoun is gone. The desperate desire to claw their way to the tournament suggests another danger.

The Kool-Aid presidents went along with the new reforms to increase standards and increase punishments. But Herbst’s reaction at actually having to live up to the standards and pay the cost suggest potential fissures in the presidential reform phalanx. She claims accepting responsibility “would be a fundamental injustice to our team and to our university.”

If presidents, especially Kool-Aid ones, actually have to watch their schools live up to their standards, this could weaken the reform alliance already stressed by the passage of the cost of attendance and four year scholarship rules. Her claims simply repeat a threat other presidents cannot mention.

Now Presidents have to accept the consequences of their own right actions.

The NCAA Vacating Victories Makes Moral Sense

“Well I know who really won.” “They can pretend to take away victories, but they can’t take my memories.” “This is stupid, the NCAA is trying to rewrite history. We know who won the game.” Once again pundits and newscasters willfully misunderstand the NCAA’s increasing use of “vacating” wins and titles from teams that cheat to win.

The last point is critical to remember. Strong moral reasons exist to “vacate” wins and titles as ill begotten gains. We need to remember this because more games and titles will be vacated this year.. At this moment both football teams in the national championship are facing scrutiny for just such ill begotten gains issues. The NCAA basketball champion also is under scrutiny.

So why vacate game at all?

The penalty responds to the fundamental fact—the “winners” cheated. They fraudulently fielded teams that by the rules of the game were illegal. So I don’t care who won; they won ill begotten gains. Good legal and moral principles lead to the conclusion that they should not be entitled to the glory, recognition or prizes associated with games won through deceit and illegality.

Vacating games or titles is a very clear and tight moral response to immoral and illegal activity. Notice it does not “forfeit” games. The NCAA does not award victories to teams that did not earn them. And it does not humiliate duplicitous teams by imposing a loss after many of the players competed with passion and good will to win. In addition, the decisions are timely compared to most glacial NCAA consequences; the punishment is immediate and clear.

The NCAA does not rewrite history, but it annotates history by pointing out the games “won” and titles “won” are not recognized by the authorizing and sponsoring bodies because the team cheated. So the name exists with an asterisk or a vacant space exists on the listings. The annotation reminds people that the victories were gained through dishonor. The “victors” are disgraced, and they should be.

The moral defense of vacating victories flows from two different moral sources. First, quality players like Marcus Camby at Massachusetts or Derrick Rose at Memphis should not have been allowed to play. They cheated and broke the rules to get to that place. (John Calipari of course knew nothing of this). Similarly Reggie Bush violated rules, and his coaches negligently denied and ignored this.Terrelle Pryor and other starters violated rules. Their coach knew but lied and withheld evidence to cover it up. 

These Massachusetts, Memphis, USC and Ohio State teams lied and misrepresented themselves. They claimed to abide by rules and authorized their players as legal and eligible, certified. So the players and the institutions collaborate in mutually beneficial denial and sometimes cover ups to field teams that are corrupted by the chain of illegal actions and complicity. The ineligible players compete, and the coaches, administration and other players are complicit or negligent as they deny or ignore the irregularities compounding the deceit. The team is immoral and illegal as constituted.

The second moral issue arises from fairness. Not only is the one team tainted despite its high caliber as one built upon deceit and illegal actions, but the other teams actually abided by the rules. The other teams are at a fundamental disadvantage because they played fair, and the cheating team did not. Vacating victories reasserts the priority of fairness in competition.

In other words, the team that “won” did not deserve to win. They cheated and defrauded others and had unfair advantages. Now Massachusetts may have won a championship without Marcus Camby and Ohio State may have won 11 games, the Big 10 title and the Sugar Bowl without Terrelle Pryor, but we do not know. The point is that they played and tainted the “victory.” The rest of the team may have played their hearts out and won fair and square on the field of play, but the talent and depth surrounding them had been acquired or sustained by violating rules and had an unfair advantage before they stepped onto the field of play.

I think the decision to vacate needs to be followed by requirements to pay back money from bowls or championships or at least to face major fines the compound and create strong financial as well as moral incentives to comply.

This approach can result in seeming punishment of the innocent. An angry letter of an Georgia Tech player dared the NCAA to pry his championship ring from “my cold, dead  of finger,” after the NCAA vacated 3 games and the ACC championship for  Georgia Tech for playing two ineligible players.” These punishments are not perfect, but the coaches who ignore, deny or abet the violations were negligent and often the other players know and do not disclose the issues. No one knows what the outcome would have been if the illegal players had not played, but the existing outcome does not have moral or legal standing.

Vacating does not deny the game or the effort and worth of the play. But vacating victories stands as a good and defensible moral response to illegal and immoral actions that created tainted victories.