The decisions of the NCAA Division I Committee on Infractions during the 2011 calendar year provided a unique snapshot of enforcement trends that can be used by institutions to improve athletics compliance programs in 2012. The Michael L. Buckner Law Firm analyzed the findings of major rules-violations listed in the 15 infractions reports released by the Committee on Infractions from January 1-December 31, 2011. This article summarizes the firm's review in two areas: (a) enforcement trends; and (b) compliance strategies.
2011 ENFORCEMENT TRENDS
The firm's analysis of the 2011 public infractions reports produced the following enforcement trends:
1. The Committee on Infractions imposed: (a) an average probation period of 2.267 years; (b) an average post-season ban of .133 years; and (c) an average show-cause order of 2.18 years.
2. The Committee on Infractions processed eight (8) summary disposition cases. [Note: The NCAA describes the summary disposition process as "a more streamlined method to process major violations when the institution, enforcement staff and involved individuals are in agreement about the findings. When successful, it avoids the need for an in-person hearing before the Committee on Infractions, eliminates the costs associated with such a hearing and reduces the amount of time needed to bring the case to closure."]
3. The bylaw categories cited the most by the Committee on Infractions in findings of major rules-violations were: Bylaw 13: Recruiting (80 occasions); Bylaw 14: Eligibility (21 occasions); Bylaw 10: Ethical Conduct (18 occasions); and Bylaw 16: Awards, Benefits and Expenses (12 occasions).
4. The top 16 bylaws cited by the Committee on Infractions in findings of major rules-violations were:
Bylaw 10.1 (Unethical Conduct)
Bylaw 13.2.1 (General Regulation)
Bylaw 188.8.131.52 (Specific Prohibitions)
Constitution 2.8.1 (Responsibility of Institution)
Bylaw 10.01.1 (Honesty and Sportsmanship)
Bylaw 184.108.40.206 (Electronic Transmissions)
Bylaw 13.11.1 (Prohibited Activities)
Bylaw 19.01.3 (Responsibility to Cooperate)
Bylaw 32.1.4 (Cooperative Principle)
Bylaw 11.1.1 (Honesty and Sportsmanship)
Bylaw 220.127.116.11 (Responsibility of Head Coach)
Bylaw 18.104.22.168.2 (Exception—Football)
Bylaw 22.214.171.124.1 (Institutional Coaching Staff Members—General Rule)
Bylaw 13.15.1 (Prohibited Expenses)
Bylaw 14.11.1 (Obligation of Member Institution to Withhold Student-Athlete from Competition)
Bylaw 126.96.36.199 (General Rule)
BEST PRACTICES AND SOLUTIONS
Presidents/chancellors, general counsel and athletics administrators should consider implementing the following best practices, strategies and tactics to minimize the rules-violations identified by the Committee on Infractions in the cases decided during the 2011 calendar year [Note: Contact Michael L. Buckner ( 954-941-1844 ; email@example.com) for additional compliance strategies.]:
1. Monitor trends from the decisions of the NCAA Division I Committee on Infractions and, thereafter: (a) develop relevant compliance strategies; (b) emphasize emerging enforcement trends in rules-education activities; and (c) devote sufficient staff and resources to the athletics compliance office.
2. Enhance the athletics compliance office's monitoring activities by purchasing and implementing commercial software programs to facilitate a more accurate and comprehensive review of various compliance-related issues (e.g., text messages, recruiting telephone calls, social-media).
3. Schedule annual or semi-annual, in-person meetings for each head coach with the president, director of athletics, administrator with sports oversight and faculty athletics representative to review the institution's expectations concerning: (a) compliance; (b) ethical conduct; and (c) a head coach's monitoring responsibility.
4. Diversify the rules-education program with a variety of education and training methodologies, techniques and activities, including, but not limited to: on-campus workshops/seminars; small group discussions; outside speakers; webinars; video presentations (followed by small group or one-on-one discussions); attendance at off-campus meetings and seminars (e.g., NCAA regional rules seminars, conference meetings); newsletters; e-mails; memoranda; websites; social-media (e.g. blogs, Twitter, Facebook); and examinations.
5. Videotape workshops and seminars conducted on-campus. The recorded sessions can be presented to persons who were unable to attend the live activity or to new employees at a later date.
6. Include all athletics employees, senior campus leadership, governing board members, campus constituencies (e.g., faculty senate), employees external to athletics with athletically-related duties and outside groups (e.g., booster and alumni organizations, local merchants) in the rules-education program.
7. Establish protocols for spot-checks of compliance-related documentations and records (e.g., telephone logs, eligibility-certification determinations).
8. Provide quarterly or annual compliance reports to the president/chancellor and director of athletics containing: summary of the athletics compliance office's strategies; review of the rules-education activities; detailed analysis of all reported rules-violations, as well as the implementation of self-imposed penalties and corrective actions; status on any investigations of alleged rules-violations; discussion of future plans or activities concerning athletics compliance; briefing on important compliance-related trends and issues; and any other relevant information.
9. Conduct a strategic review of the compliance needs of the institution and, thereafter, ensure the athletics compliance office possesses the necessary staff and resources to maintain compliance with NCAA legislation.
10. Review the institution's NCAA eligibility-certification process to ensure the system: includes a team approach to certification decisions; provides for check-and-balance procedures regarding the eligibility determination of each student-athlete; requires all persons with eligibility-related duties are regularly and thoroughly trained on applicable NCAA legislation; and mandates the adequate documentation of all eligibility-related decisions.
11. Require all new full-time athletics employees, as well as staff external to athletics with athletically-related duties, to participate in a mandatory compliance orientation session within a reasonable time of the employees' date of initial employment.
12. Enhance recruiting policies and procedures to require detailed monitoring and documentation of prospective student-athletes' lodging, transportation and meal arrangements during unofficial visits. For example, compliance records should document prospects' residence, specific travel arrangements, and the names and contact information for any persons who provided prospects with lodging, transportation and/or meals during unofficial visits.
Sources: NCAA LSDBi database; NCAA Committee on Infractions, A Guide to the Summary Disposition Process (September 1, 2006), at 4.
Contact Michael L. Buckner ( 954-941-1844 ; firstname.lastname@example.org) for recommendations on enhancing your institution's compliance program.
Division I Column:
Implementing a Professional Sports Counseling Panel
Author: Justin P. Sievert (Of-Counsel)
This article is intended for use by NCAA Division I institutions. NCAA Division II and III institutions should review their division-specific NCAA Manuals for the appropriate legislation. (NCAA Division II: Bylaw 12.3.4; NCAA Division III: Bylaw 12.3.3).
The conclusion of the National Football League's Super Bowl begins another phase in the football calendar: the NFL Draft. As student-athletes without remaining eligibility begin to sign with sports agents and other professional advisors, it is important for institutions to be reminded that NCAA legislation permits the establishment of a professional sports counseling panel. A professional sports counseling panel is designed to assist exiting student-athletes with transitioning into professional sports. A professional sports counseling panel also can assist the institution's athletics compliance office with ensuring consistent application of NCAA legislation in several ways, including: to maintain student-athletes' eligibility at the institution; and to provide education and guidance to student-athletes without remaining eligibility.
NCAA Bylaw 12.3.4 permits an institution's professional sports counseling panel to provide the following services:
1. Advise student-athletes about a future professional career;
2. Assist student-athletes with arrangements for securing a loan for the purpose of purchasing insurance against a disabling injury or illness and with arrangements for purchasing such insurance;
3. Review a proposed professional sports contract;
4. Meet with the student-athlete and representatives of professional teams;
5. Communicate directly (e.g., in person, by mail or telephone) with representatives of professional athletics teams to assist in securing a tryout with that team for a student-athlete;
6. Assist student-athletes with selecting an agent by participating with the student-athlete in interviews by agents, by reviewing written information player agents send to the student-athlete and by having direct communication with those individuals who can comment about the abilities of the agent (e.g., other agents, a professional league's players' association); and
7. Visit with player agents or representatives of professional athletics teams to assist the student-athlete with determining his or her market value (e.g., potential salary, draft status).
In light of NCAA Bylaw 12.3.4 and recent NCAA enforcement cases involving amateurism and awards and benefits rules-violations, the Michael L. Buckner Law Firm recommends institutions take the following steps when establishing a professional sports counseling panel:
1. Per NCAA Bylaw 188.8.131.52, an institution's panel should consist of least three persons. The panelists should be appointed by the institution's president or chancellor (or his or her designated representative from outside the athletics department).
2. Per NCAA Bylaw 184.108.40.206, the majority of the members of the panel should be full-time employees outside of the institution's athletics department. Further, a maximum of one panel member should be a representative employed in the institution's athletics department.
3. A sports agent or a person employed by a sports agent or agency cannot be a member on the panel.
4. The institution's senior compliance administrator (or his or her appropriate designee) should identify all panel members to the NCAA national office on an annual basis or when the panel membership changes.
5. The panel should provide educational workshops for student-athletes. The topics of the workshops should include relevant NCAA legislation, professional sports opportunities, the operation of professional drafts, any applicable state laws regarding sports agents or other professional advisors, the selection process of a sports agent or other professional advisors and real-world experiences of current and former professional athletes.
6. The panel should provide customized services for student-athletes, including: individualized consulting services for evaluating career potential; guidance regarding participation in professional combines, tryouts and camps; a "Sports Agent Program", which provides student-athletes an opportunity to meet with sports agents or other professional advisors in a structured environment; a program providing assistance in interviewing and selecting sports agents or other professional advisors; individualized services regarding personal financial planning upon exit from the institution; and individualized advice regarding the components of a professional sports contract.
7. The panel should make available resources that include agent information (including registration status, current clients, credentials, services offered), sample contracts, draft and salary reports, sport-specific information, professional sports directors and other pertinent information.
Contact Justin P. Sievert ( 954-941-1844 ; email@example.com) for more recommendations on creating a professional sports counseling panel at your institution.
Divisions I, II and III Column:
Investigation Best Practices: Encouraging and Receiving Complaints of Alleged Violations