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.

Retiring Calhoun Represented College Hypocrisy on Sports

One down and a bunch more to go.

Jim Calhoun the championship winning coach of the University of Connecticut’s men’s basketball team retired this week. Calhoun won three national NCAA championships, and coached and recruited with a passionate intensity to win at all costs. He collected as many violations and probabtions as championships, but he and his school did not care. He embodied the coach whose sole purpose in life remained to win, period. He was not worried about character, grades, education, but about winning championships, and he succeeded and his University rewarded him for it.  I'm glad he's gone.

The predictable econiums are coming his way from the paid literati of sports media—he always made good stories, valiantly fought cancer and defied the NCAA. The media made him into a sort of a bandit folk hero rather like Gerry Tarkenian at Nevada Los Vegas. This is misplaced praise and respect. He’s a schmuck. I will not miss him and neither should anyone else.

Calhoun epitomized a long and ignorable tradition of college basketball coaches who won and won big, but could care less if his players got an education. He treated NCAA rules as signposts to be ignored when convenient. He ranks up there with Bob Huggins of Cincinnati and West Virginia with his mockery of the academic and student side of being a student-athlete. I would put him with John Calipari of Kentucky, but John Calipari lives in a different moral universe entirely where students, grades and academics not only don’t matter they don’t exist.

Calhoun is interesting from another aspect. Despite his resolute inattention to academics and graduation, the various UConn Presidents supported him. Why? Because like Joe Paterno at Penn State, Calhoun helped put UCONN on the map. No one knew about the university until it became a basketball power. The school, like Penn State, hitched its reputation and recognition to its athletic program. Like Penn State it has been willing to look the other way and put up with penalties and undue booster influence to win championships and market itself. Who knew about UConn before Calhoun? So the University defended its coach even as he made a mockery of its educational mission. 

I won’t go into Calhoun’s record, nor his championships. His strength was playing to his talent. Players loved playing for him although he could be cruel, demanding, irascible and relentless. After all no one had to go to class, no one worried about grades or about money and the players won. Two dozen went on to three and eight year careers at the professional level. His teams played with relentless intensity and players reached their maximum athletic potential under him. He knew how to draw out the best athletic performance from the talent he recruited. For this he deserves recognition.

But from the perspective of the NCAA and someone who believes in student athletes as both an ideal and a possible reality, Calhoun represented the worst, except for Calipari, that college basketball could offer. His kids did not go to class and when they did, they did not perform.

Calhoun was not a big character guy; he was a winning guy. Most of the really good coaches try to impart character and life development through the skills and focus needed to succeed on the court. Calhoun, to his credit, never claimed to care about character or about teaching kids to live well. This fit with his utter lack of concern about them actually getting an education. The kids cooperated in this because at the talent level he recruited many expected to and would play professional ball.

We will leave aside the fact that the average professional career is three to five years and 70 percent leave the pros bankrupt. The great advantage of the American system over the European system lies in the fact that college can leave its student athletes with a life and career and skills after sport abandons them.

A team has to work hard to have a low APR, which is a surrogate measure for staying in school and graduating. But the APR provides a pass for players who become professional athletes early. This means we are looking at a very small number of basketball players at Connecticut under Calhoun. The only other master who approached this was Huggins in his days at Cincinnati where he burned through players and left them by the way side without a degree or an education.

Calhoun and Connecticut have unique honor of being one of the first schools for being denied entrance to the NCAA tournament for failure to graduate students at the 50 percent rate demanded by the APR. You have to understand that this rate excludes students who leave early to become professionals—they are given a pass. So this means that the students who do not go professional do not graduate and do not get the educational advantages or tools that the colleges promised the kids but especially the parents and guardians.

I am not a Pollyanna. Most college basketball and football players are not particularly excited about going to class and learning. They believe in, and often their entourage is invested in, the dream of going professional. But most fail and even when they achieve it, they end up at age 25 without sports or an education. So good coaches and committed schools use the motivation of play, or practice time and invest in tutoring and guidance to help those reluctant students learn to learn and grow into students by their junior or senior year. We have abundant data that this can and does occur with a very high level of frequency; it also happens far more now than before the reforms of the last six years.

Calhoun was not a good college coach. He won, but he was not a good college coach from any perspective linked to education. He leaves his team on probation and banned from tournaments. If the rules had been in place earlier, they would not have gone to a tournament for years.

But let’s be honest. Calhoun, Huggins and Calipari could not exist if the colleges pledged to the idea of student athletes did not let them. The colleges not only let them get away with not attending to education, but pay them huge salaries, name buildings after them. The Presidents of Connecticut and Kentucky praise their coaches as educators. As a teacher I can rail all I want and as a teacher I can respect the coaches who do take education seriously, get their students to class, made education and character aspects of coaching—but modern college Presidents are notoriously willing to hire and lionize coaches who do nothing but win. Calhoun is a representative of the worst moral hypocrisy of the system. I won’t miss him, but there are plenty more like him.

Penn State & the NCAA: Restorative Justice, not the Death Penalty

The NCAA Will Act on Penn State & Should Seek Restorative Justice not the Death Penalty

People are demanding the NCAA to act against Penn State for its moral horror show in the Sandusky affair. I think the NCAA will act but am not sure it should. But if it does, it should act to restore justice, not impose retribution.

The NCAA is a confederated membership nonprofit organization with complex bylaws that grant immense autonomy to campuses and conferences. It is not a state actor and schools have jealously limited its power.

The bylaws resolutely stick to issues around equal playing, sports governance, athlete welfare and amateurism. The bylaws define legal not moral requirements of membership. The academic institutions jealously guard local prerogatives and resist reforms that centralize power. Athletic directors and coaches along with the media hate NCAA enforcement. None of them want an ethics police.

Acting now against Penn State “for the good of intercollegiate sports” would involve an unprecedented assertion of power by the NCAA. The claim would be that Penn State as an institution and football team failed in their institutional control. Penn State failed but it is not clear it involved NCAA bylaws.

Here are the reasons for caution:

1.  1t is not clear any major NCAA bylaws were actually violated. The NCAA has no morals clauses; it does have clear moral ideals in its governing documents. Most “morals” violations such as sexual harassment or substance abuse remain at campus level and violate campus rules and state law. The NCAA seldom gets involved as an ethics politice unless it involves institutional dereliction and student welfare. Penn State is not about student welfare.
2.  Mark Emmert has pointed out the NCAA has no precedent, the actions are “unprecedented.” He has made clear the NCAA should not be bound by the past “normal” expectations. The NCAA issues thousands of punishments as regular administrative actions on minor violations such as practice or travel times violations. These rulings occur around complex rules to protect student athletes and ensure some fair play. Even major violations involve two separate issues.
1. they entail a clear and proven major violation such as impermissible benefits or agent contact or illegal recruiting. None of these activities remotely relate to ignoring or covering up the abuse of children by a former coach.
2.  the most serious infractions involve loss of institutional control and deliberate cover up. Penn State qualifies in spades. But it is not clear the leaders even worried whether these were NCAA violations. They were trying to protect their institution’s reputation, not hide from the NCAA.
3.  NCAA infractions investigators are not equipped to examine criminal actions and must defer to criminal investigations. NCAA personnel have neither training nor writ in these areas.
4.  The case involves hard issues of statute of limitations for most NCAA violations. The abuse probably began before 1977 (35 years ago) and Sandusky retired in 1999. He had a privileged Emeritus status for the last 13 years, but no formal employment relationship.
5.   Mike McQueary, a graduate assistant, reported seeing Sandusky sexually assaulting a boy in the shower room in 2002. From that point the Head Coach and senior university administrators, not just athletic personnel, covered up for decade. While the Freeh report makes clear a cover-up occurred, most of the time no one even bothered to think about it. If the NCAA has a case it exists here in the cover-up and institutional failure.

“Hard cases make bad law” is a basic maxim of American judiciary action. This is a very hard case that could make very bad law.

If the infractions committee or NCAA President acted now, they would appropriate a range of control over over ranges of moral/legal behavior that lie beyond their past competence or mandate. I think they will act simply because the actions are so despicable even if beyond any legal writ. It looks like the actions were “enabled or at least not stopped” in Mark Emmert’s words

The NCAA will act. Paradoxically they will act for the same reasons that drove the cover-up to protect the legitimacy and credibility of the NCAA and out of moral outrage.

The NCAA lawyers will concoct justifications based upon good of the sport or generalized duties of ethics and integrity in athletics. This logic will expand the authority of the NCAA and set huge precedents to regulate new areas.

The NCAA will also act because people fear that that if they don't, no one else will. They cannot rely on Penn State.

This is a school whose idea of restitution is to paint out halos over Paterno’s head and redo their bathrooms!! They finally will take the statue down. Come on! Everyone who can be fired has been, and the Regents should resign and have started but what else do we expect. Sandusky has gone to jail and other will be tried. Penn State will not fall on its sword.

The senior administrators of Penn State and their coach failed to exercise moral integrity and act against immoral and illegal behavior. They worried more about their institution and careers than the victims. This is the crux of the NCAA case of not exercising institutional control over actions occurring by non-university employees that administrators missed and ignored when revealed.

These are real criminal and civil crimes and moral failures. But it is not clear they violate NCAA bylaws.

Let’s assume the NCAA will act with a newly developed warrant asserting new powers and authority based upon moral integrity of institutional systems. Let's assume they act through Presidential action from the Board and bypass the infractions committee. Now let us assume that the program does not have a history of violations or probation that would point to long-term lack of institutional control. Multiple probations also point to an inability or unwillingness to gain control of rogue coaches, rogue agents, rogue players or rogue boosters like. At Penn State no extant history of violations or institutional hostility manifests. However the NCAA acts it must do so in a way that achieves its moral ends but also avoids Penn State litigation that might challenge this extension of power.

NCAA President Mark Emmert point out this is unprecedented and NCAA precedent is not much help. I mean OK, telling a school you can’t go to a bowl game for three years or you lose 25% of your scholarships—these are serious NCAA penalties, yet they feel like a pea-shooters against a whale.

No bowl games? Fewer scholarships?  Versus 35 years of sexual abuse of children under the protective banner or Penn State or ten years of covert denial and cover-up with no remorse?

I know people are screaming for the death penalty, but to what end? The program gained no competitive advantage, violated no major rules, did not abuse student welfare, cheat on exams, not graduate students or play fast and loose with agents. It has no prior history. All the conditions under which the death penalty has been used do not comport. The death penalty would also open the NCAA ups to serious legal challenges which neither it nor Penn State want. 

I want to strongly support another approach that others have floated. Do not use the death penalty. Limit bowls or scholarship reduction if you want, but to act to connect to the moral nature of the crime.

Don’t focus upon retribution. The NCAA should aim for restorative justice.

Take the profits from football for the next five years, or take a high mandated percentage so that other sports will survive. Require Penn State to fund an independent national foundation dedicated to preventative education of child abuse. Put this money to good use. Create a real independent nonprofit foundation and have it dedicated to working with colleges and high school to provide strong education and support to stop this plague.

NCAA action will ultimately rest upon moral claims, not bylaw violations. The NCAA response should be informed by restorative justice, not retribution. Protect future victims from the depredations Penn State fostered.