Negotiated Resolutions and the Independent Accountability Resolution Process: Jump In or Walk Away?
There are two new options for use in NCAA infraction cases that, on the surface, seemingly encourage quicker remedies and the possibility of independent review. But are these new processes options that schools and coaches should consider? While they can certainly be considered, these options are not without risk, as set forth below, and institutions and coaches should tread carefully before jumping in.
Negotiated Resolution Process
The Negotiated Resolution Process is brand new to the NCAA in 2019. This option can be used when all parties and the NCAA agree on the violation, level, classification and penalties in a matter. While the idea of coming to an agreed outcome may seem appealing, this process is not without risk and is no guarantee of a specific result, even if the parties agree to all terms.
To use this process, at least for now, every aspect of the case has to be agreed upon by all parties. For now, if the institution and coach do not agree on all aspects of the case, this process is not an option for either party because the NCAA is not allowing for bifurcated cases, at least for the foreseeable future, until the NCAA gets some experience with this new process.
Assuming there is an agreement on all issues, the parties submit a report to the Committee on Infractions (“COI”) for preliminary assessment. The report includes, inter alia,
agreed upon violations, violations considered but not alleged, the level of agreed upon violations, agreed upon penalties, and a waiver of appeal. The major downside is that even if the parties agree on all terms, including penalties, the COI can still reject the proposed negotiated agreement. Upon receipt of a proposed agreement, the COI will weighs factors to determine whether there should be aggravation or mitigation, which could subject the parties to higher or lower penalties. Even worse, it is possible that a rejected negotiated resolution could potentially be considered by the peer review panel at the subsequent hearing, which could be viewed as an admission. While the underlying settlement discussions would not be admissible, the fact that a settlement agreement was drafted and agreed upon would be known by the COI. Accordingly, significant consideration should be given to what facts are “admitted” in a proposed negotiated resolution since those admissions could come back to haunt a party if the agreement is rejected.
As of the date of this article, the NCAA has already approved seven negotiated resolutions. All seven were initially rejected by the committee, subsequently amended and resubmitted to the COI for final approval.
While the negotiated resolution process may sound appealing, parties need to tread carefully. The process is not intended to allow a party to plead guilty to a much lesser infraction. Instead, it is being offered to provide a fast track to guilty pleas.
Independent Accountability Resolution Process
The newly created Independent Accountability Resolution Process (“IARP”) was purportedly designed to hear complex infractions cases and to minimize potential conflicts of interest. The system is brand new, with multiple layers of committees overseeing and involved in the process, and the final investigatory unit still includes an employee from NCAA enforcement as part of that team, which calls into question whether this system is truly “independent”. As of the date of publication of this article, no cases have been heard by the IARP and there is no body of case law to serve as precedent for rendering decisions in the IARP.
There are only three ways that a request for referral to the IARP can be made: (1) the Institution; (2) the NCAA Vice President of Enforcement; and (3) the Chair of the Committee on Infractions (“COI”). Thus, individual coaches and student-athletes have no right to request referral to the IARP, though they do have an opportunity to respond to a request made by any of the three entities with the authority to make such request.
When a request is received, the standard of review used by the IRC is whether it is in the best interests of the NCAA to resolve the case under the IAR structure. The IRC’s decision is final. Once a case is referred to the IARP, it cannot go back to the regular process. And, while the NCAA does not comment on infraction matters in the peer review process, if the request for IARP is approved, the NCAA will make a limited public disclosure that the case is being handled by the IARP.
If a matter is accepted for IARP, the NCAA enforcement team that was working on the case exits the process and a new “team” called the Complex Case Unit (“CCU”) enters the matter. The CCU is comprised of one or more external investigators, one or more independent external advocates and one NCAA enforcement staff member. The CCU is responsible for reviewing the investigation that has occurred up to the point of referral to the IARP and determining if additional investigation or amendments to the charge are appropriate. This could involve subjecting witnesses to a second interview if the CCU is not satisfied with the prior investigation. The CCU then completes the investigation and continues with the case through review by the Independent Resolution Panel (“IRP”).
The panel for a case before the IARP consists of 5 members of the IRP, including one alternate. A Chief is assigned to handle procedural matters. Although no IARP hearings have occurred, according to the NCAA, the hearing process will be similar to the peer review side. Hearings will be confidential and only the hearing panel can ask questions of witnesses.
Notably, the NCAA does not intend for the IARP to be an attractive process that institutions will want to choose as an alternative to the peer review model. Instead, the NCAA intends for the IARP process to encourage parties to remain in the peer review process and to engage in what the NCAA views as cooperative behavior. The NCAA has not yet decided whether decisions from the peer review process will have any precedential value in the IARP model. Concerns have already been raised as to whether the inclusion of a member of the NCAA enforcement staff defeats the stated mission of independence of this process. That said, the IRP – the panel reviewing the case – will not have any individuals from member institutions serving on it which eliminates concerns raised from parties concerned with being peer reviewed. With the possibility of an “additional” investigation once the CCU enters the case, the lack of any precedential history, and the inclusion of an enforcement member on the CCU – will any institution voluntarily choose to be part of this process?