First of all, I don't intend to use this article as an excuse to further attack the NCAA's actions with respect to Penn St. That ship has sailed, for the moment, and is useful for other discussions at the appropriate time. This article will discuss the NCAA Board of Directors' endorsement of some recommendations that significantly alter their enforcement landscape.
First of all, let's look at the proposals that were adopted, from their own press release:
- Switching from the current two-tier violation structure to four tiers, to provide more flexibility.
- Increasing the size of the Committee on Infractions, which hears all the cases, from 10 up to 24. This would allow panels formed from this larger pool to hear cases on a more regular basis and allow cases to be resolved more efficiently.
- Expanding the make-up of the committee members to include current or former university presidents, vice presidents or other senior administrators, current and former directors of athletics, former NCAA coaches, conference officials, faculty, athletics administrators with compliance experience and members of the general public with a legal background.
- Creating new penalty guidelines to hold those who step outside the accepted code of conduct more accountable for their actions. The new guidelines would allow the Committee some discretion, although limited, in prescribing penalties while also assuring stronger and consistently applied penalties.
- Enforcing the fact that head coaches set the tone and culture for compliance within the program. When there is failure by the head coach to fulfill these expectations, the new enforcement model holds head coaches individually accountable.
First of all, all these changes are designed to do one thing -- improve the PR of the NCAA. They are designed to make the NCAA appear less worthy of criticism for inconsistent penalties, and appear tougher on the bad guys and not as toothless as many have accused them of being over the years.
The purpose of splitting violations into four tiers is to somewhat mirror what happened to the federal courts in 1984 when the United States Sentencing Reform Act was passed. Essentially, it appears to give the NCAA less flexibility in deciding punishments, giving the appearance that every level contains only a discreet set of remedial actions and punishments available to the Committee on Infractions. In reality, all it does is make their discretion more transparent to the discriminating observer while at the same time making it more opaque to the general public. Consider this:
The committee will have the discretion to increase core penalties or prescribe more lenient core penalties, if the committee finds that an extenuating circumstance exists. It is expected that any deviation from the guidelines would be rare.
Essentially, this creates a more rigid penalty structure within each category, but allows the Infractions Committee all the latitude they need to place each violation into a particular category, or failing that, modify the core penalties (which because of the aforementioned, they will rarely need to do). In other words, this is a shell game that attempts to make the NCAA look more stern and penalties both more fair and more severe by limiting discretion, but it doesn't limit the discretion of the committee to select the penalty by deciding which category to put it in.
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For the record, the categories are thus:
Level I: Severe breach of conduct
Level II: Significant breach of conduct
Level III: Breach of conduct
Level IV: Incidental issue
Basically, these four levels split the former categories of "major violation" and "secondary violations" more or less down the middle. This allows greater granularity and permits the committee to hide behind its classification, both for good and ill. If it feels strongly one way or the other, the committee may freely assign a violation to a higher or lower category under the rubric of "aggravation," as there seem to be no guidelines other than the vague descriptions as to which violations go where. They must merely come up with a plausible reason to put each violation in a particular category, and off they go.
This will do nothing to quell the criticism from those in the know, as they will pay attention to the types of violations that go in each category, and the so-called "aggravation" or "mitigation" over time. Inevitably, these decisions will be challenged, but it will offer them some cover, particularly early in the change, which is what the NCAA are apparently hoping for.
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The second item is the expansion of the committee to include 24 people, and more diversity, including former AD's coaches, current and former presidents, etc. In principle, this sounds like a good idea - I have always had doubts about the committees as currently constituted.
In practice, this has to be carefully managed. How would it look if a Duke AD were passing judgment on a North Carolina case, or Jim Calhoun passing judgment on a case potentially involving John Calipari? That would create a major problem with individual schools. Potential conflicts of interest and rivalries would have to be addressed with care. A simple random assignment will create more problems than it solves, eventually.
The greater number getting to hear more cases? I suppose that's fine. It's hard to criticize the NCAA for spending more of its money on enforcement if they actually do, a criticism I leveled against them here.
The "enhanced" penalties don't really look enhanced to me. As far as I know, the NCAA has always had the ability to impose these sorts of penalties, and with what they did to Penn St., they proved that they need no structure when it comes right down to it -- they can just empower Emmert or whoever is the Kommissar For A Day to do whatever he wants to do.
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The only thing this does is codify harsher penalties, which were always an option available under the old system, giving it an imprimatur of impartiality, something like what the Federal Sentencing Guidelines were intended to do. The trouble is, the NCAA has demonstrated the ability to simply disregard all that on a whim, and did nothing to disclaim that capability here. Are you convinced now that they've written down something on a matrix that everything will be formulaic, as they intend for us to believe?
What we have left is "Accountability of those in charge." For this one, I think it's best to quote:
The new enforcement model stipulates that when there is failure by the head coach to create a culture of integrity and direct his/her staff to uphold NCAA bylaws, the head coach will be held individually accountable.
Further, presidents and directors of athletics (and/or other senior administrators who oversee athletics) must be held accountable for oversight of their athletics programs. The group recommends publically identifying these individuals should an "institutional control" or "failure to monitor" violations occur.
My question here is, what does this mean? Do you mean to tell me that when the head coach has failed to create a culture of integrity up until now that they have just been ignoring it? If so, under what bylaw do we hold the NCAA accountable for their malfeasance?
As to presidents and AD's, what the NCAA says is that they are going to "publically Identify" the presidents and AD's if they find lack of institutional control or some similar institutional impropriety. Oh, my paws and whiskers! The dreaded scarlet letter! A pox on you, you evil AD. May 1,000 syphilitic camels drag their dangly bits around the rim of your coffee cup! The head coach gets potentially blacklisted from making a living for as long as 10 years, and the administrators and presidents get the dreadful penalty of their names being published in a report which maybe 5,000 people will read carefully. Next thing you'll tell me is that the NCAA will have their names published in the Federal Register. The horror!
I am not knocking the show-cause penalty, I think it is necessary in some cases, and certainly needs to be applied more often than it currently is. However, I always have a problem with imputing responsibility at one level in a meaningful way, and then not allowing that accountability to be carried up the chain. To me, that's a scapegoat in sheep's clothing.
If the coach gets banned from coaching for ten years, the AD should at minimum get fired, and the president penalized in some meaningful way, not just mentioned in a report that most people will never read. The inherent absurdity of that boggles the mind.
My read on this is that there is some good, but it is mostly a public relations dodge to reduce criticism of the political vagaries of the NCAA that have been exposed and ridiculed over the years. This could represent meaningful change if properly implemented, like serious penalties for senior administrators who don't do their job, or approaching the punitive aspect in a way that forces schools to take meaningful action, like giving them the option of applying financial penalties to audited compliance efforts with active NCAA oversight rather than tossing them into the NCAA general fund.
Bottom line: This looks to me like an attempt to hand us all a sow's ear, and tell us it's a silk purse. It could be implemented meaningfully, but as proposed, it falls well short. This proposal does little to mitigate the largely arbitrary actions that the NCAA calls "due process," does nothing to constrain the NCAA against abuse of its members, fails to appropriately define the offenses and the punishments therefore (although it does make a baby step in that direction), and leaves far too much to committee discretion. Finally, it does nothing to stop the NCAA from going all Penn St. on anyone that it feels will assuage a rapacious media outrage.
Until the NCAA shows it is serious about creating a set of defined, enforcible rules, violations and penalties, provide a transparent and public due process which is rigorously followed, and stops leaving open the possibility of throwing all their procedures out the window whenever the public winds blow that way, it will remain the ineffective, arbitrary, and capricious organization it is right now.