The NCAA Investigative Process: Knowledge of the Bylaws Can Make or Break You!
The NCAA investigative process can be difficult to maneuver. However, having knowledge of and understanding the Bylaws used by NCAA staff responsible for investigations and processing is key. While this article will not address all the Bylaws involved in the investigative process, it will identify some important Bylaws with which individuals and institutions should be familiar as part of the NCAA infractions process.
Enforcement is one component of the infractions process. According to the NCAA, “the mission of the enforcement department is to uphold integrity and fair play among member schools; ensure that compliant schools and student-athletes are not disadvantaged by their compliance and provide fair procedures and timely resolution of cases.” As part of the infractions process, NCAA enforcement staff receives information about potential violations, as well as conducts investigations to discover facts.
Understanding Article 19 of the NCAA Division I Bylaws on the “Infractions Program” is pertinent in the investigative process. While there are many provisions in Article 19, this article will focus on the Bylaws relating to the importance of cooperation such as production of materials, participating in interviews, protecting whistleblowers, and the consequences if an institution or individual fails to cooperate.
- Importation of Facts (Bylaw 18.104.22.168.1)
The investigative process allows importation of facts by a decision or judgment of a court, agency, accrediting body, administrative tribunal, commission, etc., authorized by a member institution or its board of trustees, to be accepted as true in the infractions process. This means evidence submitted and positions taken in another proceeding may be considered in the NCAA infractions process, although it is a separate proceeding. So careful review of prior testimony, facts presented, or other issues that were addressed or raised in one of the above forums should not be ignored or disregarded if an institution or individual finds themselves involved in the NCAA infractions process.
- Failure or Refusal to Produce Materials (Negative Inference) (Bylaw 22.214.171.124.1)
The purpose of this Bylaw is to hold individuals involved in the investigative process accountable and maintain a timeline for efficiency. The Bylaw allows a hearing panel to infer that a violation may have occurred if a party fails to cooperate in the investigation. For example, if an institution or individual fails to produce requested materials, the hearing panel may infer that those requested materials would support the alleged NCAA violation. While the negative inference cannot be solely relied upon to support the existence of a violation, it certainly could harm the credibility of an institution or individual that fails to produce materials requested by enforcement staff.
- Failure or Refusal to Participate in Interview (Negative Inference) (Bylaw 126.96.36.199.2)
Similar to Bylaw 188.8.131.52.1, this Bylaw holds institutions and individuals accountable for not participating in an interview. Thus, if an individual fails to or refuses to participate in an interview requested by the enforcement staff, and that individual is later deemed to be an involved individual, the hearing panel could deem the failure to be interviewed as an admission to the alleged violation. The individual may then be subject to penalties, which cannot be appealed. So, unless one has a compelling reason not to sit for an interview, an individual would be best served by cooperating with enforcement staff.
- Responsibility to Cooperate (Bylaw 19.2.3)
Institutions and individuals should be careful not to violate this Bylaw, which is very broad. Bylaw 19.2.3 makes cooperation by school presidents and athletics staff a term (and condition the way the Bylaw reads) of their employment. In fact, the Bylaw mandates that language pertaining to this Bylaw “must be included in contracts or appointments executed on or after August 8, 2018” with penalties for failure to do so effective February 1, 2019. So, if this Bylaw is applicable to you, it is recommended that you review your contract to make sure you are in compliance.
The broad language in the Bylaw provides that “full cooperation” consists of timely reporting of violations; timely sharing of information with the enforcement staff; providing access to “all electronic devices, social media and other technology”; maintaining integrity and confidentiality of the investigation; and “instructing legal counsel/representatives to cooperate.” This Bylaw, while intended to be built on cooperation from both sides, puts the burden squarely on the alleged violator. For example, if an institution’s or individual’s counsel files a series of motions close to a hearing date that inhibit the efficient processing of the case, the actions of counsel can be held against the institution or individual. As such, it is important to timely respond and cooperate with NCAA enforcement staff, as well as be strategic with motions or other filings in a case, to avoid penalties.
- Protection for Cooperation (Whistleblower Protection) (Bylaw 184.108.40.206)
Those who come forward with complaints of NCAA violations are protected. A whistleblower is defined broadly in Bylaw 220.127.116.11 as a “current or former institutional staff member or prospective or enrolled student-athlete who voluntarily reports information about potential violations to his or her conference, member institution and/or the Association.” Similar to laws protecting employees against retaliation, the NCAA will not tolerate retaliation against a whistleblower. If there is retaliation, it could result in an allegation by the NCAA against the institution. Thus, once an institution learns of a complaint by a whistleblower, in addition to cooperating with the NCAA in investigating the matter, although the institution may not know the identity of the whistleblower, it should make sure those involved in the infractions process understand that retaliation is not permitted.
In addition to understanding an institution’s or individual’s duty to cooperate in the NCAA infractions process, it is also important to know the consequences for lack of cooperation in the enforcement process.
- Immediate Penalties for Failure to Cooperate (Bylaw 18.104.22.168.3)
Pursuant to this Bylaw, the NCAA Division I Committee on Infractions (“Committee”) or the Independent Resolution Panel (“Panel”) can impose “immediate penalties” on schools and individuals, including, but not limited to, a loss of revenue sharing during a postseason ban, a five-year postseason ban, suspension, and up to a full year of recruiting visit reductions. In addition, the lack of cooperation can be considered an admission to a violation. Think of this as an interlocutory order where the hearing panel has not yet heard an enforcement case and issued a decision; however, due to failure to cooperate, immediate sanctions can be imposed before a hearing is held. No institution or individual should want to be struck with any penalties during the enforcement process which may undermine the institution or individual’s credibility and ability to present their case.
- Authority and Duties of Committee (Bylaw 19.3.6-(j))
Lastly, this Bylaw expressly permits the Committee to issue sanctions to parties “and/or their representative(s) for behaviors that inhibit the committee’s ability to effectively manage the docket, ensure a professional and civil decorum in all proceedings or otherwise efficiently resolve infraction cases.” So, as noted above in the discussion about the duty to cooperate, not only can the named party in the allegation be subject to sanctions, but also their counsel or other representative. Thus, institutions and individuals need to recognize the broad power the NCAA has with regard to enforcement proceedings to maintain a good light before the Committee or Panel.
In closing, the NCAA has implemented the above Bylaws to facilitate an effective investigation. While the duty to cooperate may appear to be only on the institution or individual, it is important that an institution or individual understand what is expected of them during the infractions process to avoid incurring unnecessary penalties or negative inferences that could affect their ability to defend and/or present a case to a Committee or Panel.