“These processes are complicated by the nature of the activity itself, and therefore they are subject to a lot of misinterpretation and confusion,” said Emmert, who had participated in a similar mock investigation two weeks earlier along with a collection of university presidents. “And the more we can pull back the veil and let people see the inner workings, the better off we feel about it.”
During the daylong exercise, NCAA enforcement staffers guided reporters through the steps of an investigation process that typically spans 10 to 11 months. The process was familiar to many, if not all, of the scribes in attendance. It shared similarities — establishing the credibility of the information and of the information’s source, strategically planning out interview sequences, etc. — to the ones they employ when conducting investigations in their own line of work.
But there were a few striking differences. For example, NCAA investigators cannot use information from a confidential or anonymous source to support an allegation or to prove a violation occurred. Such information can only be used as the ignition point of an investigation.
While the NCAA does not possess subpoena authority, current staff members and athletes are obliged to participate in the infractions investigation process. However, enforcement staffers must notify an institution before conducting interviews with any of its employees or students.
Additionally, member institutions must provide to NCAA enforcement staffers any documentation requested before, during or after an investigation, and the timing of those requests is critical. Request a particular document — say, the academic transcripts of certain athletes — too early, and an investigator risks tipping his or her hand as to the exact nature of their inquiry. That might allow potentially guilty parties to “circle the wagons,” director of enforcement LuAnn Humphrey said.
NCAA investigators even can ask that an athletic department not inform particular coaches or athletes of certain document requests, and the athletic department officials must oblige or risk incurring penalties themselves.
If an eligibility issue is uncovered during the course of an investigation, it is the responsibility of the institution, rather than the NCAA, to declare an athlete ineligible. The athlete remains ineligible until undergoing the student-athlete reinstatement process, which is entirely separate from the enforcement process.
A completely separate staff decides on reinstatement, and that process can take as little as 24 hours — as was the case in December, when Auburn quarterback Cam Newton was reinstated less than a day after his school ruled him ineligible, despite an ongoing investigation into his recruitment — or it can span several weeks.
When the NCAA believes it possesses enough evidence to compel the Committee on Infractions (COI) to decide in its favor, enforcement staff will issue a Notice of Allegations to the institution, all involved parties outside the institution and the COI. A COI hearing takes place months later.
Andrea Myers, who served on the NCAA Division I Committee on Infractions from 2001 to 2006, noted that the enforcement staff and the COI are not the same entity.
During a mock hearing Tuesday, four tables were situated to form a nearly complete rectangle with a court reporter typing away on an island in the middle. Enforcement staff sat on one side of the COI’s table, and institution representatives sat on the other. Accused individuals sat at a shorter table across the room from the COI, which typically consists of eight members.
And indeed, the COI questioned the respective positions of all three sides with equal vigor. At one point, a COI member wondered whether a bad policy on the part of an institution would be the catalyst for an allegation of lack of institutional control — one of the most serious the NCAA can levy against a school.
“I disagree with a bad policy necessarily being the basis for a control finding, but that’s part of the process,” said Julie Roe Lach, the NCAA’s vice president for enforcement. “That’s the way it works. We do disagree often, the enforcement staff and the Committee on Infractions.”
Josephine Potuto, who served on the NCAA Division I Committee on Infractions from 2000 to 2009, said the standard of proof used in a COI hearing is “clear and convincing evidence,” much like the standard employed in civil cases tried in a court of law. This falls short of “beyond a reasonable doubt,” the standard employed in criminal cases.
In response to a question about the severity of the punishment handed out recently by the COI, Potuto said that during her final year as COI chair in 2008 the committee presented to the NCAA Board of Directors an assessment that suggested the COI, after consultation with member institutions, needed to “ramp up” the penalties being issued for various violations. Potuto said the Board of Directors never offered an official response.
Emmert said he is committed to toughening the NCAA’s penalty structure, as well as to bolstering its enforcement staff by various means, though he offered few specifics. The enforcement staff currently consists of 38 investigators.
He also said he is concerned that the current model of infractions, which consists of major and secondary infractions, is too “bivariate” and suggested the enforcement staff is looking into the possibility of expanding the infractions model to as many as five categories.
“We need to make sure,” Emmert said, “that our penalty structure and our enforcement process poses a thoughtful level of concern, and even fear, that the costs of violating rules exceeds the benefit.”