Biggest lessons learned at NCAA's Enforcement Experience
NCAA president Mark Emmert is virtually powerless in the area of enforcement
This is not a court of law -- "beyond a reasonable doubt" does not apply
Bottom line: This process is too complicated, too convoluted and too inconsistent
INDIANAPOLIS -- On Tuesday, I joined two dozen or so journalists who participated in the NCAA Enforcement Experience, an elaborately staged, daylong tutorial designed to educate us -- and by extension, you -- on the enforcement process. Midway through the morning, we were shown a video that we were told would illustrate the lengths investigators go to in order to interview their subjects. The video showed a fictitious investigator named Charlie Gadget speaking to an unseen man in a hollow-sounding room. At the end of the "interview," the camera pulled back to reveal that Mr. Gadget was sitting in a bathroom stall. His interviewee's shoes and lowered pants could be seen in the stall next door. The video ended with the sound of a toilet flushing.
Thus emerged the most shocking revelation of the day: The NCAA's enforcement staff has a sense of humor.
The Enforcement Experience was modeled after the mock selection seminar the NCAA holds each February to teach the media about the process for selecting and seeding the men's basketball tournament. The NCAA's new president, Mark Emmert, has said he wants to make everything about his association more transparent, and no area needs more transparency right now than enforcement. Said Emmert, "To the extent that we can provide you and your colleagues with better information, we want to do it."
The NCAA spent more than a year and put much effort into assembling this exercise. They even constructed a pretend infractions case and gave us a voluminous set of materials that included interview summaries, documents, timelines and all sorts of background information. We were asked to make critical decisions at every stage of the process, and at the end of the day we witnessed a pseudo infractions hearing conducted by actual former members of the Committee on Infractions. When the hearing ended, we broke into groups, deliberated on the case and meted out penalties.
As someone who has reported on numerous infractions cases over the years, the Enforcement Experience taught me many things I did not know and crystallized others I hadn't given enough thought to. My colleague Stewart Mandel has done an excellent job laying out a description of the mock case and how we went about deciding it. What follows below are my six biggest takeaways from my experience in Indianapolis. Flushing sound not included.
1) The NCAA has more investigative authority than I realized.
I've always wondered why accused parties tell the NCAA anything. After all, that's the only way the enforcement folks can get incriminating information. So why even bother meeting with an NCAA investigator if it can only hurt you?
The answer is, they have to -- and they have to tell the truth. (Theoretically, anyway.) Every school within the NCAA must cooperate with an investigation, and every student-athlete signs a statement at the beginning of the school year that commits that student to reveal knowledge of violations. Though the NCAA has to notify a school in advance that it is meeting with a student or staff member (including nonathletic personnel like professors), the investigators do not have to say ahead of time what they intend to ask. Indeed, they try to be as vague as possible so they won't tip anybody off.
Furthermore, before questioning begins the NCAA provides the interviewee with a format explaining how the interview will proceed, as well as a detailed explanation of the consequences of committing "unethical conduct" -- i.e., lying. All in all, it's a pretty intimidating scenario. No wonder so many people sing.
2) There is no "NCAA."
Ask yourself this: When your favorite radio host rails against the injustice or incompetence perpetrated by "the NCAA," whom is he talking about?
Is it the investigative team that makes up the NCAA's enforcement staff? Perhaps. That would be the team of 38 paid employees who work out of the NCAA's headquarters in Indianapolis. (Emmert said he wants to significantly add to the staff.) Those are the folks who field tips, marshal resources, conduct investigations and submit their findings. So if this were a criminal case (which it's not; more on that later), think of the enforcement staff as the police, the detectives and the prosecuting attorneys, all rolled into one.
Or maybe the radio host is railing against the Committee on Infractions. Those are the 10 faculty members, conference commissioners and/or outside attorneys who volunteer enormous amounts of time to conduct hearings and issue penalties. These folks are not a part of the NCAA's staff in Indianapolis. They are in effect the judge and jury -- and that includes judging the work of the prosecutors themselves. That's why the enforcement staff is so careful to make sure they have a solid case before they make a formal allegation that needs to be defended at a hearing. "The last thing we want as an enforcement staff is to go in front of the Committee on Infractions and have them say, 'What the heck were you thinking?' " said LuAnn Humphrey, who leads the group charged with investigating men's basketball.
After the Committee on Infractions renders its verdict, the case can be heard by an appeals committee, which is another, separate group of volunteers who are not a part of the NCAA's staff in Indy. So if you're counting at home, that's three separate groups who can all be defined as "the NCAA."
But whether the radio host knows it or not, when he complains about "the NCAA," what he's really complaining about are the schools themselves. More than anything else, the schools are the NCAA. This is, after all, an association, and it is run by the membership. The schools are the ones who set up the enforcement process and provide parameters for the people who run it. So if there are problems with how this process is carried out -- and we all know there are -- only the schools can change them.
3) The president has nothing to do with enforcement.
It's understandable why the public might be confused on this point because Emmert, unlike past presidents, has put himself out front by explaining recent enforcement decisions and delving into the details of cases. But the fact is, for someone with such a fancy title, Emmert is virtually powerless in the area of enforcement. He doesn't do any investigating, he doesn't conduct any hearings, he doesn't hear any appeals. He can't even change the rules and procedures. He can only make recommendations to the membership and hope that the schools enact them. Like I said, the enforcement process is set up by the schools in a way that serves their purposes. And right now they want the president to stay out of it.
4) This stuff is hard.
Most of the writers in the room (myself included) have at some point harshly criticized the NCAA for letting wrongdoers off too easy. But when we were presented with evidence in our mock case and asked whether it warranted an allegation of academic fraud against the most obviously culpable character -- who was an academic tutor, not even a player or coach -- just 60 percent of us said yes. Pretty close call.
Yet, a few hours later we found ourselves debating whether to give the university a one- or two-year postseason ban. That's quite a turnaround in less than a day. Ironically, it turned out that the media was the group that was way too lenient.
Which goes to show how much easier it is to lob grenades from behind the safety of a laptop than actually sit in those chairs and make decisions of consequence. During Tuesday's exercise, I often thought of Tom Cruise's line from A Few Good Men: "It doesn't matter what I know. What matters is what I can prove." It is no simple task to prove wrongdoing, but that is what the enforcement folks are asked to do each and every day. Better them than me.
5) This is not a court of law.
How many times have you heard someone complain that people who are accused by the NCAA of cheating are not treated as if they are innocent until they're proven guilty? There's a good reason for that: They're not. The standard of "beyond a reasonable doubt" applies to a criminal trial, but not to infractions cases.
To the degree that an infractions hearing is comparable to a legal proceeding, it's much more similar to a civil case as opposed to a criminal one. In a civil case, the standard a jury must reach is a "preponderance of the evidence." In an NCAA infractions hearing, the standard is "clear and convincing evidence" of a major violation. It was further explained to us that each piece of evidence does not need to meet this standard. Rather, the Committee on Infractions can evaluate the totality of the evidence and then judge whether it has crossed that threshold.
There are other differences between the enforcement process and a court of law. Unlike an actual prosecutor, the NCAA does not have subpoena power over people who don't work at or play for its member schools. This is, as Humphrey conceded, "a significant roadblock." On the other hand, the witnesses who do agree (or are compelled) to appear do not have the right to refuse to answer questions. Nor can they hide behind their attorneys to answer questions for them.
6) There is a limit to how much transparency can be applied to these cases -- and it's pretty low.
Even though our case was fictitious, the mock hearing was riveting. It actually felt more like a Congressional hearing, with a long set of tables arranged in a rectangle and a microphone at each chair. It occurred to me it would make great television, so I asked afterward why these hearings weren't televised.
I was told that part of the concern is whether that would be fair to the accused. "The fact is, we do bring charges the Committee doesn't find [to be true]," Humphrey said. The larger impediment, though, is the fear that it would dissuade witnesses from coming forward. Again, with no subpoena power the NCAA can't force anyone outside its purview to testify. Many key witnesses who come forward do so under the agreement that their identities will be kept secret. If those witnesses knew their names would be revealed to the public, they would be much less likely to provide incriminating information.
That answer speaks to the broader challenge the NCAA -- whoever that is -- faces in the coming days. For all the effort put into Tuesday's exercise, there is no denying that this process is too complicated, too convoluted and too inconsistent. With precedents so difficult to apply from case to case, it's no wonder the public gets the impression these folks are making it up as they go along. For the fans, the "enforcement experience" is unpleasant and confusing, and it cries out for more daylight, not less. The NCAA took a step in the right direction on Tuesday, but it was only a step, and the journey ahead is long.
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