[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DUE PROCESS AND THE NCAA
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 14, 2004
__________
Serial No. 106
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
95-802 WASHINGTON : 2004
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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SEPTEMBER 14, 2004
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 2
The Honorable Spencer Bachus, a Representative in Congress from
the State of Alabama........................................... 3
WITNESSES
Mr. Jeremy Bloom, U.S. Olympic Skier and former University of
Colorado Football Player
Oral Testimony................................................. 18
Prepared Statement............................................. 19
Ms. Jo Potuto, Vice Chair, NCAA Committee on Infractions
Oral Testimony................................................. 35
Prepared Statement............................................. 36
Mr. B. David Ridpath, Assistant Professor, Sport Administration,
Mississippi State University
Oral Testimony................................................. 106
Prepared Statement............................................. 108
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared statement of Professor Gary R. Roberts, submitted by
Chairman Chabot................................................ 6
Letter from the NCAA to the Honorable J. Randy Forbes, a
Representative in Congress from the State of Virginia.......... 123
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Tom Osborne, a Representative
in Congress from the State of Nebraska......................... 129
Prepared statement of witness B. David Ridpath, Assistant
Professor, Sport Administration, Mississippi State University.. 129
Submissions from the Honorable Spencer Bachus, a Representative
in Congress from the State of Alabama.......................... 159
Letter and responses from the NCAA............................... 219
Letter and complaint from Furnier Thomas LLP, submitted by
Chairman Chabot................................................ 228
DUE PROCESS AND THE NCAA
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TUESDAY, SEPTEMBER 14, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:30 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. Committee will come to order.
We are going to try to move this hearing along today,
because we have an 11 o'clock bill that is being taken up on
the floor which many Members of the Judiciary Committee will be
involved in. So we are going to move this testimony along
today.
Mr. Scott, I was mentioning, at 11:00, we have this--this
Committee has a bill that we are going to be involved with on
the floor.
I want to thank all the Members for being here. I'm Steve
Chabot, the Chairman of the Subcommittee on the Constitution.
The NCAA is a voluntary organization comprised of some
1,200 member schools from 50 States. Many of these member
institutions are public colleges and universities. The NCAA's
goal is, quote, to initiate, stimulate and improve
intercollegiate athletic programs for student-athletes,
unquote. To this end, the NCAA conducted 87 championships in 22
sports across three divisions in the 2002-2003 school year.
That year, over 375,000 student-athletes competed in NCAA
sports.
One way the NCAA serves to initiate, stimulate and improve
intercollegiate athletics is by passing--and enforcing--rules
to ensure the integrity of the sports experience. The rules,
which are promulgated by its member institutions, govern, among
other things, recruiting, amateurism and academics. The rules
are published in each division's bylaws. The Division I bylaws
for 2004-2005 consists of some 457 pages. The NCAA enforces
these rules with its own paid professional staff and a
voluntary Committee on Infractions, which is comprised of
representatives from its member institutions.
The details of how the NCAA enforces its rules are quite
complicated, and we are very fortunate to have Jo Potuto, Vice
Chair of the NCAA's Committee on Infractions, here today to
explain how the rules work in practice. In brief, infractions
are divided into major and secondary violations, and the amount
of procedure to which an institution, coach or student-athlete
is entitled depends on the category of infraction in which the
violation falls. Additionally, student-athletes who are found
to be ineligible for any reason are subject to the NCAA's
reinstatement process if they want to regain their eligibility
to play college athletics.
Let me state at the outset what this hearing is not about.
It is not about the wisdom of any particular NCAA substantive
rule. Nor is it about the NCAA's authority to enforce its
rules. The NCAA provides a valuable function in policing
collegiate athletics, and we are not here to relitigate any
particular decision that the NCAA has made. This hearing is
about fairness, particularly the fairness the NCAA displays in
enforcing its rules. Merited or not, the NCAA has at least the
perception of a fairness problem. Evidence of this is found in
newspapers, such as stories regarding the NCAA's decision not
to restore eligibility to Jeremy Bloom, who is with us today,
and Mike Williams. It is found in courtrooms, where two former
Alabama assistant coaches have sued the NCAA for alleged
violations of procedural due process. It is also found in State
legislatures, such as the State of Nevada, which passed
statutes providing particular due process rights for NCAA
investigations conducted within their States. And it is found
in the NCAA's own 1991 study conducted by former Solicitor
General Rex Lee, which proposed 11 recommendations the NCAA
should undertake to improve fairness in its procedures.
It has been 13 years since Congress last examined the
procedures that the NCAA uses to investigate and enforce its
rules. In that time, the NCAA has made several changes, most
notably the addition of a more robust appellate system for
infraction cases, that have provided greater protections for
member institutions, coaches and student-athletes. However, the
NCAA has failed to take action on several recommendations of
its own 1991 study, most notably, those relating to the hiring
of independent judges to hear infractions cases and the opening
of these proceedings to all. This hearing will examine those
recommendations and the NCAA's decisions not to implement them.
We will also examine the investigated individual's role in the
process and their ability to participate fully in it. And we
will examine the NCAA's restitution rule, which punishes member
institutions in the event that student-athlete initiated
litigation is ever resolved in favor of the NCAA.
I would like to thank Congressman Bachus for requesting
this hearing and also Congressman Osborne for his interest in
this area.
I am sure that many of us will look to Tom Osborne for
guidance in this particular area as Congressman Osborne is
uniquely qualified, having coached for 36 years the Nebraska
Cornhuskers football team, I might note taking his team to a
bowl every season and averaging 10 wins per season. So
Congressman Osborne is someone we all look to around here when
it comes to college athletics.
I would also like to thank the NCAA for their cooperation
with our staff for this hearing and for their willingness to
appear before the Subcommittee to discuss their procedures.
Finally, I appreciate--we all appreciate our other witnesses'
attendance here this morning, and we look forward to hearing
from all of our witnesses. And I would now yield to the
gentleman from New York, the Ranking Member of the
Subcommittee, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I want to thank the witnesses for coming here
on such short notice. I had not realized that issues involving
the NCAA enforcement procedures is such an urgent matter. I had
not realized that the procedures of the NCAA came within the
jurisdiction of the Subcommittee on the Constitution.
Now due process does fall under the jurisdiction of this
Subcommittee, but that is generally due process by the United
States Government, not due process by a private organization,
such as the NCAA. Perhaps, however, it does come under the
jurisdiction of this Subcommittee, because I know in many
communities college sports are the nearest thing we have to an
established religion.
I would hope in the last few weeks of this Congress our
Subcommittee will be able to make time for some other pressing
issues that plainly implicate the constitutional rights of
millions of Americans. For example, I know that our colleague,
the gentleman from Virginia, has been working with the majority
in this Committee for some time trying to get an oversight
hearing on the extent to which the Department of Agriculture,
despite a consent decree, is still violating the rights of
African-American farmers and forcing some of them off their
land.
I would also hope that we could take time from our busy
schedule to examine whether citizens are being stripped of
their right to vote.
I wouldn't even object if the Bush Justice Department could
answer our questions from the March 2 oversight hearing on the
Civil Rights Division or if we could get the overdue report
from the privacy officer at the Department of Homeland
Security, an office this Committee established.
I hope that the chairmen of this Subcommittee and of the
Committee will agree to work with the minority on some of these
issues, and perhaps we can agree that these are issues that
deserve consideration and time before the playoffs.
I apologize to the witnesses before this Subcommittee.
Unfortunately, in the crush of business at the end of this
Congress, matters such as funding the Federal Government,
reform of our intelligence agencies and other matters, I will
not be able to stay for most of the hearing. I know this is an
important issue to many sports fans. I have the testimony, it
will receive my attention, but I apologize for not being able
to stay for most of the hearing.
Mr. Chabot. Thank you. I am not going to respond to
everything you said, but relative to the issue of the black
farmers, there is a hearing set for September 28.
Mr. Nadler. I am glad to hear it.
Mr. Chabot. The gentleman from Alabama, Mr. Bachus, is
recognized for the purpose of making an opening statement.
Mr. Bachus. Thank you, Mr. Chairman.
If you go back to the Magna Carta, 1215, the principle of
due process was first at least discussed openly in England and
embodied in the Magna Carta. Over the next several hundred
years, certain things became basically acceptable. One of those
things was open hearings. When people were deprived of their
freedom, their property, an open hearing was granted.
Some of you may have heard of the star chambers in England.
Our NCAA representative teaches constitutional law at the
University of Nebraska. The star chambers were originally--
sessions were open to the public. However, under Charles I and
other kings, they began to misuse their power, abused their
power, and one of the first things they did was to take away
the public hearings. They explained that away by saying it was
expedient and saved time, and also it was too much trouble to
allow the public to come in.
If you look at the Supreme Court decisions--and I have
several which I will submit for the record--but the Supreme
Court makes it clear that not only in criminal procedures but
in civil procedures, that our citizens should enjoy due
process. They talk about independent triers of the fact, public
hearings, right to confront the witnesses and know the
witnesses against you, that those should apply in all civil
matters of importance as well as criminal matters.
How does that apply to the NCAA, a, quote, so-called
volunteer organization? Well, first of all--and I have heard
the Chairman and others talk about a voluntary organization. I
think that anybody that has studied the NCAA readily realizes
that the athletes are not members nor are they invited to be
members, but the great number of decisions affect more athletes
than anyone else. Athletes are not members, and they have no
input, but they are controlled.
In fact, that is why the Harvard Business School said that
the number one monopoly in America is not Microsoft, is not
Wal-Mart, is not the West Coast Longshoremen's Union, not the
post office, it is not even OPEC. They said it is the NCAA,
which has total power and abuses that power. They also said
this, that the NCAA--with the NCAA in charge, the student
remains poor. With the NCAA in charge, the student remains
poor. They talk about the NCAA trying to maintain the high
ground but not doing a very good job of it.
And they pointed out, as did the NCAA--and this is maybe my
last poor point and the main point of this hearing--the NCAA
itself looked at their procedures. They assembled a Supreme
Court judge, a solicitor general, former attorney general,
several law school professors, and they studied how can we
better improve our system of enforcement.
I am going to submit three articles from 1991 and 1992.
They agree that two things they ought to do--and this was their
own committee. They agreed they ought to have public, open
hearings. And I can cite from Justice Marshall numerous--over
100 Supreme Court cases that talk about the importance of
letting the sunshine in. And you will see the explanation of
the witness for the NCAA and the reason that she gives for not
having open hearings, which is a rather unusual reason. But
they said that. They said they ought to have the right to
confront witnesses and, most importantly--and the cases are
very clear on this--an impartial trier of the fact.
Well, you know, these 1991 and 1992 articles say the NCAA
is going to adopt those and going to take the pressure off of
them from congressional hearings, court hearings, legislatures,
the public, which has demanded these things. Guess what? They
didn't do it. According to USA Today, the two most important
reforms they have failed utterly to do. And who has been
victimized by this? It is the student-athlete. You will hear
from one of them today.
And I can tell you, the longer you study this, you realize
that the NCAA and sometimes the member institutions trade off
and those that lose are those without power, the coaches and,
more often than the coaches, the athletes who are victimized by
this system. Four hundred and eighty-five billion dollars a
year in revenue goes into the system, yet the NCAA says it
cannot afford to give due process, something that our common
law tradition has been with us for hundreds of years. But that
tradition is not in NCAA.
With that, Mr. Speaker, I yield back any time that I have.
But I also think that Tom Osborne does have one good
suggestion here that he makes to this Committee and that is
let's do something for the athletes. A lot of the problems with
these cases is that the athletes are given scholarship money
but not money to live on. And as the Harvard business school
says and as the NCAA has said, most of these students are very
poor and it is very hard for them to even pay for their cost of
living. Yet the NCAA has really led the fight against a lot of
things for athletes, including compensating them at least for
their living expenses.
Mr. Chabot. The gentleman's time has expired.
I would note that Congressman Osborne just entered the
room. He missed all the flattering comments that I made about
him, unfortunately. But, in any event, we are happy to see you
here today.
Any minority Members who want to make a statement?
If not, any opening statements could be made part of the
record.
We would like to turn to our witnesses for today's hearing.
Our first witness is Jeremy Bloom, a U.S. Olympic skier and
former University of Colorado football player. Mr. Bloom has
been a member of the U.S. Olympic ski team since he was 15-
years-old and represented the United States at the Salt Lake
City Winter Olympics in 2002. He is the youngest person to win
the world grand prix title and the first American to win a
world championship gold medal in mogul skiing. Mr. Bloom is
also a gifted football player and holds a number of receiving,
punt return and kick return records at the University of
Colorado.
Our second witness is Josephine Potuto, Vice Chair of the
NCAA's Committee on Infractions and Richard H. Larson Professor
of Law at the University of Nebraska College of Law. Ms. Potuto
earned her Bachelor's degree from Rutgers Douglas College and
her J.D. at the Rutgers College of Law in 1974. In 2003, Ms.
Potuto was selected to be on the NCAA's Division I Management
Council, the chief administrative and legislative body of
Division I. She is in her sixth year as a member of the
Division I Committee on Infractions and her second as committee
Vice Chair. At the University of Nebraska, she teaches courses
on constitutional, procedural and criminal law as well as a
course in sports law.
Our third witness is Dr. B. David Ridpath, Assistant
Professor of Sport Administration at Mississippi State
University. Dr. Ridpath is the former compliance officer at
Marshall University in West Virginia.
Our fourth and final witness was to be Gary R. Roberts,
Deputy Dean and Director of the Sports Law Program at Tulane
Law School. Unfortunately, because of Hurricane Ivan and the
fact that it has veered close to New Orleans, Mr. Roberts had
to cancel at the last moment. He has submitted written
testimony, however, which will be put into the record.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Gary R. Roberts
I want to thank the Subcommittee for allowing me to share my views
on a matter of significance and importance to many of America's
institutions of higher learning, to hundreds of athletic coaches and
thousands of student-athletes at those institutions, and to millions of
fans of the athletic teams of those institutions--the procedures that
the National Collegiate Athletic Association (NCAA) should be required
to employ in its enforcement processes.
By way of introduction, I have been involved in litigating,
teaching, speaking, and writing about sports legal issues for about 28
years. Since 1983 I have been a professor of law teaching primarily
sports law, antitrust, business enterprises, and labor law at Tulane
Law School, where I founded and currently direct the nation's first
sports law certificate program. I was from 1995-97 the president of the
Sports Lawyers Association, a 1,100-member organization of lawyers who
work for or represent sports industry clients, on whose board of
directors I have served since 1986. I am also the editor-in-chief of
the SLA's on-line monthly newsletter, The Sports Lawyer. I often speak
at sports law conferences, have written several major law review
articles and two book chapters on sports legal matters, and along with
Professor Paul Weiler of Harvard Law School I have coauthored the
leading sports law textbook and supplement used in American law
schools, Sports and the Law, published by The West Group (formerly West
Publishing Company), now in its third edition. I also regularly work
with and am frequently cited by the print and broadcast media on sports
legal issues, and I have authored several columns in publications of
wide general circulation. This is the ninth time I have appeared before
a congressional committee in the last 12 years on some aspect of
sports, including college sports.
Perhaps even more relevant, I am and have been for 12 years Tulane
University's faculty athletics representative. In this position, I am
deeply involved in a wide range of matters involving the governance and
operation of both Conference USA and the NCAA as well as Tulane's
compliance with NCAA rules. I have over the years served on a variety
of committees within both organizations, and currently I am a member of
the NCAA's Division I Academics, Eligibility, and Compliance (AEC)
Cabinet. I have also become quite familiar with the NCAA's enforcement
procedures by having been involved in infractions cases involving
Tulane University as well as by having represented clients before the
NCAA Infractions Committee. Thus, I have a great deal of both academic
knowledge of and practical experience with the NCAA enforcement
process.
It must be emphasized, however, that while my positions described
above give me a familiarity with, and a variety of perspectives on, the
matter before the Subcommittee today, I speak here only as an
individual. I am not authorized to speak for or to represent Tulane
University, Conference USA, the NCAA, or the Sports Lawyers
Association, and the views I express here are mine alone.
I should make one additional preliminary comment. My testimony
today focuses only on the process and procedures employed by the NCAA
to deal with alleged violations of NCAA rules by member institutions or
their employees or ``representatives''--the so-called enforcement
process. This, however, is only one aspect of the NCAA's overall
governance effort. Processes and procedures are followed in a number of
other contexts that are also crucial to the operation of the NCAA, and
these too can sometimes be very highly publicized and controversial.
For example, there are mechanisms for NCAA member institutions to seek
and to appeal staff interpretations of NCAA rules; to request waivers
of initial or continuing-eligibility rules; to petition for the
reinstatement of athletes who have lost their eligibility (like in the
recent highly publicized cases of Division I-A football players Jeremy
Bloom from the University of Colorado and Mike Williams from the
University of Southern California); to review positive drug tests and
to appeal penalties for doping violations; or to seek a waiver for
extraordinary circumstances from any of the thousands of NCAA rules.
The procedures for each of these types of proceedings differ, and each
at one time or another has been criticized for being too rigid or
unfair.
I refer the Subcommittee to an article in which I have summarized
these various NCAA processes,\1\ although some procedures described
therein have since been modified. To study and critique each of these
processes here would require more time and space than is available. My
understanding is that the Subcommittee's primary interest today is in
the NCAA's enforcement process, and thus it is on that to which my
attention is directed here. Nonetheless, many of my general comments
and conclusions about the enforcement process are equally applicable to
all or most of the other NCAA governance processes as well.
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\1\ Roberts, Resolution of Disputes In Intercollegiate Athletics,
35 VALPO. U.L. Rev. 431 (2001).
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I. THE NCAA'S ENFORCEMENT SYSTEM AND PROCESSES: A SUMMARY OF CONCERNS
The NCAA's enforcement process and procedures for dealing with
alleged institutional infractions of its rules are set forth in
Articles 19 and 32 of its By-Laws. A brief summary of this system is
useful to understand the peculiarities of how it works and what might
trouble critics of that system. While almost all of the attention and
criticism of the enforcement process relate to the way the system
handles what are called ``major infractions,'' it is important to
understand that such major infractions constitute only a small
percentage of the total violations of NCAA rules by member
institutions, their staff members, or athletics ``representatives.''
The vast majority of what the NCAA rules define as ``secondary
infractions'' (minor breaches that do not give a violating institution
any competitive or recruiting advantage \2\) are initially discovered
by the institution itself, self-reported to the school's conference and
the NCAA enforcement staff, and resolved administratively with minor
penalties like reprimanding the offending coach or making anyone who
received a small impermissible benefit repay it. There are dozens of
such ``technical'' infractions committed by every Division I
institution every year, but they have little impact on the system and
attract virtually no public attention. They also virtually never give
rise to any legal issues or controversy.
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\2\ See NCAA By-law 19.02.2.1 (``A secondary violation is a
violation that is isolated or inadvertent in nature, provides or is
intended to provide only a minimal recruiting, competitive or other
advantage and does not include any significant recruiting inducement or
extra benefit.'') Such secondary infractions are today handled almost
exclusively through the violating school's conference office, with the
NCAA staff playing only a minimal oversight role.
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The far more significant rules violations, the so-called ``major
infractions,'' however, often attract great public attention, involve
significant consequences for the offending institution, and give rise
to substantial factual and legal disputes. In this arena, so much is
often at stake that there is today a cottage industry of lawyers who
make a fine living doing nothing but representing member institutions
in major infractions cases.
The process is commenced when the NCAA enforcement staff is made
aware of a possible major rules violation.\3\ This awareness may come
from many sources, including the institution itself or the news media,
but more often it comes either from a ``tip'' from someone affiliated
with another institution or from an athlete involved in the violation
who has had a falling out with the coach or school and ``turns state's
evidence'' in retaliation.\4\ Regardless of the source of the
information, if the enforcement staff believes after some evaluation
and effort to corroborate the information that there is sufficient
suspicion to take the matter further (i.e., ``reasonably reliable
information'' that a violation has been committed), it will notify the
CEO of the suspected institution in what since last year is called a
``Notice of Inquiry'' (an NOI--see By-law Art. 32.5) and commence a
more formal investigation (NCAA By-law Art. 32.2), frequently by
dispatching an investigator to talk to potential witnesses and seek any
documentation that might shed light on the allegations. It may also ask
the target institution to investigate the situation and make a report
of its own internal findings. Once the enforcement staff has made
whatever inquiry it believes is appropriate, it will decide whether
there is sufficient cause to issue a second notice of specific rules
violations, called a ``Notice of Allegations'' (an ``NOA''--see By-law
Art. 32.6). It should be noted that this system of two notices at
increasing levels of enforcement staff confidence in the validity of
the accusations is new, having been adopted in 2003. Previously, a more
thorough investigation was conducted before any formal notice was given
to the institution, which, if the evidence warranted it, was then
followed by an ``official letter of inquiry'' (OLI) to the target
institution. While there is little experience with the new dual notice
process, it appears that in this new system the Notice of Allegations
is roughly the procedural equivalent of the old OLI--somewhat akin to a
criminal indictment.
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\3\ The NCAA Enforcement staff is today headed by David Price, Vice
President for Enforcement Services. There are under Mr. Price four
Enforcement ``Directors,'' and below them another 16 associate or
assistant directors. It is worth noting here that while I do not
personally know everyone on the enforcement staff, I do know Mr. Price
well. In my view he is an individual of strong character who strives
mightily to carry out his responsibilities with integrity, fairness,
and even-handedness. My experience with both him and the entire staff
convinces me that there is little or no reason to believe that the
enforcement staff pursues cases for any reason other than their
reasonable belief that the information available to them indicates that
their actions are required or appropriate under the NCAA's rules. I
believe it would be wrong and unjustified to believe that the NCAA
enforcement staff acts out of animus, bias, or any personal vendettas
against any individuals or institutions in carrying out its duties.
\4\ In this regard, the NCAA has created a limited immunity for
athletes who may have been involved in a violation, often by being the
recipient of some ``extra benefit'' from the institution. See NCAA By-
law Art. 32.3.8--Limited Immunity. Under this provision, the
enforcement staff may give an athlete who turns ``state's evidence''
against an institution a waiver from being declared ineligible for
athletics participation as a result of the violation he/she reports.
This sometimes results in the unseemly, yet often necessary, scenario
of an athlete who took money or other inducements from an institution
being allowed to transfer to another school and play while innocent
coaches and student-athletes at the first institution end up being
penalized (e.g., barred from post-season play) because their
institution has been disciplined.
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Of course, if an NOI, or in turn an NOA, is not issued, the matter
is dropped, at least for the time being. If both an NOI and then an NOA
are issued, the process becomes much more formal and significant.
An institution receiving an NOA is in trouble. I have asked various
former members of the NCAA enforcement staff and the Infractions
Committee if there has ever been an institution that after receiving an
OLI (which appears to be the rough equivalent of the new NOA) was
subsequently exonerated entirely. The response I have always received
leads me to conclude that while it is theoretically possible for an
institution to survive receipt of an NOA (previously an OLI) with
complete exoneration, no one can ever remember it happening. And if it
has, it was a freak occurrence. The reality is that any institution
receiving an NOA will be found guilty of some violation. Thus, an
institution given official notice of allegations (i.e., ``indicted'')
by the NCAA enforcement staff is in a very different position than many
criminal defendants in a public court. The ultimate goal for the
institution is virtually never to seek exoneration, but rather to
convince the Committee on Infractions to impose the lightest possible
penalties, often by confessing guilt, blaming the violation on an ``out
of control'' coach or booster with whom it has severed its
relationship, and imposing some penalties on itself that it thinks will
be enough to satisfy the Committee.
Once an institution has completed the required internal
investigation and has submitted its written report, the institution is
scheduled for a hearing before the Committee on Infractions. Each NCAA
Division has its own committee (which is really a quasi-judicial
tribunal, not a committee in the usual sense of that word). Of course,
the cases receiving the most attention arise in Division I, whose ten-
member committee today is chaired by Thomas E. Yeager, the commissioner
of the Colonial Athletic Association.\5\
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\5\ The current members of the Division I Committee on Infractions
are Paul Dee, athletics director at the University of Miami; Gene
Marsh, a law professor from the University of Alabama; Jerry Parkinson,
dean of the law school at the University of Wyoming; Josephine Potuto,
a law professor from the University of Nebraska; Eugene Smith,
athletics director at Arizona State University; Andrea Myers, athletics
director at Indiana State University; Thomas Yeager, the commissioner
of the Colonial Athletic Association; and three practicing lawyers,
Alfred Lechner, James Park, Jr., and Brian Halloran
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At the Committee on Infractions hearing, the institution is
entitled to representation by legal counsel, as is any allegedly
implicated current or former coach and/or student-athlete (what the
NCAA calls an ``involved individual''--see By-law Art. 32.1.5). The
hearing is closed and no one is allowed in the hearing room except the
NCAA enforcement staff, a few representatives of the accused
institution and its lawyer,\6\ and any involved individuals and their
lawyers. In the interests of saving time, hearings are limited to a few
hours on a single day. First, the staff makes its presentation to
support its NOA, and then each ``defendant'' is allowed to present a
position. No witnesses are allowed except the NCAA staff, individuals
representing the institutions, and directly affected coaches and
student-athletes. Thus, third persons making the accusations or those
who the ``defendants'' claim could exonerate them are not permitted to
appear or to present testimony. Neither are third parties who may be
implicated in the NOA as participants in the violations. Indeed, no one
gives ``sworn testimony.'' ``Testimony'' of third parties is given to
the committee only through hearsay (or often multiple hearsay) oral
reports, written transcripts, and accompanying written statements.
Thus, because most of the people with personal knowledge of the
relevant facts are not permitted to attend, cross-examination of
``witnesses'' is not possible. Rules of evidence are not followed, and
whatever the committee allows will be heard. In short, the proceeding
is quite informal and haphazard by judicial standards.\7\
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\6\ NCAA By-law Art. 32.8.6.2 provides: ``At the time the
institution appears before the committee, its representatives should
include the institution's chief executive officer, the head coach of
the sport in question, the institution's director of athletics, legal
counsel, enrolled student-athletes whose eligibility could be affected
. . . , and any other representatives whose attendance has been
requested by the committee.''
\7\ See generally NCAA By-law Art. 19 & Administrative By-law, Art.
32. Generally, the Committee on Infractions is empowered to establish
its own rules of evidence and procedure for the conduct of the hearing.
See By-law Art. 32.8.7. Most of this procedure is not set forth in any
published document and is subject to change at any time by the
Committee, including during the conduct of a hearing itself.
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Another way in which the proceeding is unlike a normal judicial
case is that the committee is not limited to finding violations that
are alleged in the NOA. If during the course of the hearing, the
committee finds evidence of violations not listed in the NOA, it may
rule that such violations have been committed without the institution
being given the opportunity to investigate or to prepare to rebut such
alleged violations and without the individuals affected by the ruling
being notified or consulted. This offers yet another reason why, unlike
a criminal defendant, institutions might feel constrained from
aggressively seeking to use all possible objections and tactics to
avoid any penalties--even in the unlikely event it proves that the
charges in the NOA are without merit, there can still be a price to
pay, especially if the committee becomes put off by overaggressive
posturing or believes that the institution does not display a
sufficiently cooperative or contrite attitude.
After the hearing, the Committee on Infractions issues its written
findings and imposes penalties. At this point the institution can
either accept the decision and penalties of the Committee on
Infractions or it may appeal to the five-member Infractions Appeals
Committee, which in Division I is currently chaired by Terry Don
Phillips, director of athletics at Clemson University.\8\ Since its
inception in the early 1990s, this committee has been surprisingly
independent and assertive in reversing some Committee on Infractions
findings and reducing penalties, although it has never exonerated an
institution that the Infractions Committee has found to have committed
one or more violations. This has undoubtedly had a significant
influence on the Committee on Infractions, whose unfettered discretion
is now subject to meaningful oversight and possible reversal.
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\8\ Current Members of the NCAA Division I Infractions Appeals
Committee are Terry Don Phillips, athletics director at Clemson
University; William Hoye, faculty athletics representative from Notre
Dame University; Noel Ragsdale, a law professor at and the faculty
athletics representative for the University of Southern California;
Alan A. Ryan, Jr., in-house counsel for Harvard University; and
Christopher Griffin, a practicing lawyer.
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The Infractions Appeals Committee's decision is final and
unappealable to any further body within the structure of the NCAA (see
By-law Arts. 32.11.4 & 32.11.5).
This NCAA enforcement process has come under much criticism, much
of it understandable, yet generally unjustified. Examples of aspects of
the enforcement process that have come under such criticism include the
following:
In almost every case, the incriminating evidence
against the accused institution and individuals is presented to
the Infractions Committee through narrative accounts by the
enforcement staff, backed up by written transcripts of
interviews and signed statements. The first-hand witnesses,
including the ``accusers,'' are not allowed to attend the
hearing or to give testimony even if they want to, no matter
how crucial their testimony is to the case. Thus, the accused
institution and involved individuals have no ability to
confront or to cross-examine the witnesses against them, or to
present witnesses in their defense. Audio or video tape
recordings of the interviews of first-hand witnesses are not
allowed to be played at the hearing so voice inflection, body
language, or even context cannot be evaluated by the
Infractions Committee.
Although the incriminating evidence against the
accused institution and involved individuals is presented in an
oral report by an enforcement staff investigator, counsel for
the ``defendants'' do not have a right to ask questions
directly of (i.e., cross-examine) even that investigator.
Although there is a four-year statute of limitations
(see By-law Art. 32.6.3), the exceptions to the rule
effectively eviscerate it.\9\ Thus, penalties are often handed
down many years after the violation and frequently end up
adversely impacting primarily coaches and student-athletes who
were not at the institution at the time of the violations and
are innocent of any wrongdoing.
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\9\ These exceptions are: ``(a) Allegations involving violations
affecting the eligibility of a current student-athlete; (b) Allegations
in a case . . . of willful violations on the part of the institution or
individual involved, which . . . continued into the four-year period;
and (c) Allegations that indicate a blatant disregard for the
Association's fundamental recruiting, extra-benefit, academic or
ethical-conduct regulations or that involve an effort to conceal the
occurrence of the violation.'' NCAA By-law Art. 32.6.3. Suffice it to
say that the great majority of major violations fall within one of
these categories, especially since they invariably involve some type of
willful violation and/or an effort to conceal the violation.
The Committee on Infractions is allowed to find
violations of rules and impose penalties even for
transgressions that were not alleged in the NOA. Thus,
institutions, coaches, or student-athletes can be found to have
violated rules with serious adverse consequences even though
they have been given no notice of any such charge against them
and have not had any opportunity to investigate or to prepare a
defense. I have no data as to how often this actually occurs,
but the mere possibility that it might can and does at least
occasionally deter ``defendants'' from defending the charges in
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the NOA as vigorously as they might.
An institution's or a staff member's failure fully to
self-report any violation that they knew or should have known
about (i.e., to turn yourself in) and that the enforcement
staff subsequently determines occurred is itself considered a
breach of the rules that can compound the severity of the
penalty imposed.\10\ Thus, the notion embedded in the Fifth
Amendment of the U.S. Constitution that a person does not have
to incriminate himself is given no recognition in the NCAA
enforcement process.
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\10\ NCAA By-law Art. 32.1.4 is captioned ``Cooperative Principle''
and states: ``The cooperative principle imposes an affirmative
obligation on each member institution to assist the NCAA enforcement
staff in developing full information to determine whether a possible
violation of NCAA legislation has occurred and the details thereof.''
Art. 32.2.1.2, captioned ``Self-Disclosure by an Institution,'' then
provides: ``Self-disclosure shall be considered in establishing
penalties, and, if an institution uncovers a violation prior to its
being reported to the NCAA and/or its conference, such disclosute shall
be considered as a mitigating factor in determining the penalty.''
A school that allows an athlete to play in an
athletic contest pursuant to a court order requiring it to do
so, but the athlete is later determined by the courts and the
NCAA to have been ineligible, may still be penalized by the
NCAA's Division I Management Council in any of a variety of
substantial ways ``in the interest of restitution and fairness
to competing institutions.'' \11\ This remarkable procedure,
under which an institution can be severely penalized for doing
only that which a court has ordered it to do, has nonetheless
been employed on several occasions and has been found by the
courts to be a lawful exercise of regulatory authority for a
sports governing organization.\12\
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\11\ NCAA By-law Art. 19.7, captioned ``Restitution,'' provides:
``If a student-athlete who is ineligible under the terms of the
constitution, by-laws, or other legislation of the Association is
permitted to participate in intercollegiate competition contrary to
such NCAA legislation but in accordance with the terms of a court
restraining order or injunction operative against the institution
attended by such student-athlete or against the Association, or both,
and said injunction is voluntarily vacated, stayed or reversed or it is
finally determined by the courts that injunctive relief is not or was
not justified, the Management Council may take any one or more of the
following actions against such institution in the interest of
restitution and fairness to competing institutions: [list of nine
categories of penalties is omitted].''
\12\ See, e.g., NCAA v. Lasege, 53 S.W.3d 77 (Ky. 2001). For recent
cases upholding an identical rule of a state high school governing
body, see Indiana High Sch. Athletic Ass'n v. Martin, 765 N.E.2d 1238
(Ind. 2002); Indiana High Sch. Athletic Ass'n v. Reyes, 694 N.E.2d 249
(Ind. 1997).
Other examples could be cited. It is sufficient here simply to make
the point that in many significant ways the NCAA enforcement process
employs methods or procedures that seem quite at odds with basic rights
of accused individuals or notions of fundamental fairness that
Americans have come to take almost for granted--rights involving due
process, equal protection, privacy, freedom from unreasonable searches
and seizures, the right to confront one's accuser, the right not to be
forced to incriminate oneself, and perhaps others. This fact, however,
does not necessarily lead to any overall conclusion about the
reasonableness of the NCAA's process or whether Congress or the courts
should as a policy matter impose greater requirements on the NCAA. My
own view, which I will expand on more in Part III of this statement, is
that while the government should strongly encourage the NCAA to invest
substantially more of its immense financial resources into creating a
more substantial and more professional enforcement process, it would be
unwise and do far more harm than good to impose traditional notions of
fairness appropriate for the criminal justice system on the NCAA.
II. CURRENT LEGAL CONSTRAINTS ON THE NCAA'S ENFORCEMENT PROCESS
Prior to the early 1980s, the NCAA was generally considered to be a
state actor and thus its rules and actions were subjected to judicial
review under traditional constitutional standards. Usually, the NCAA
was able successfully to persuade courts that its procedures were
adequate under due process standards,\13\ or that the rights being
asserted by plaintiff athletes were not constitutionally protected
property rights in the first place.\14\ Occasionally, the courts found
that eligibility to play college sports was a protected property right
and that the NCAA had failed to meet constitutional safeguards,\15\ but
this was the exception. However, after the Supreme Court's ``state
action'' trilogy in 1982,\16\ the Fourth Circuit clearly reversed
course in Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir. 1984), by holding
the NCAA to be a private actor immune from constitutional attack in a
case brought by a prospective student-athlete at Duke University, a
private institution. But even after Arlosoroff, many still believed
that this view was either an aberration or was limited to cases
involving only private universities.
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\13\ See, e.g., Regents of the Univ. of Minnesota v. NCAA, 560 F.2d
352 (8th Cir. 1977); Howard Univ. v. NCAA, 510 F.2d 213 (D.C. Cir.
1975); Justice v. NCAA, 577 F.Supp. 356 (D.Ariz. 1983).
\14\ See, e.g., Colorado Seminary v. NCAA, 417 F.Supp. 885 (D.
Colo. 1976), aff'd, 570 F.2d 320 (10th Cir. 1978).
\15\ See, e.g., Hall v. NCAA, 530 F.Supp. 104 (D.Minn. 1982).
\16\ These decisions were in Rendell-Baker v. Kohn, 457 U.S. 830
(1982); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982); and Blum
v. Yaretsky, 457 U.S. 991 (1982).
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The Supreme Court put an end to this confusion in 1988 in the
highly publicized case of NCAA v. Tarkanian, 488 U.S. 179 (1988). In a
5 to 4 decision written by Justice Stevens \17\ in a case involving
NCAA disciplinary action for numerous major infractions by University
of Nevada at Las Vegas men's basketball coach Jerry Tarkanian, the
Supreme Court held that the NCAA was not a state actor and thus was not
subject to having its rules or decisions challenged for alleged
violations of constitutional due process (and logically of equal
protection, free speech, unreasonable searches and seizures, privacy,
and all other rights provided for in the Bill of Rights of the U.S.
Constitution). Because the case involved an employee of a state
university, the scope of the Tarkanian ruling was sweeping, and since
then it has been universally accepted that NCAA rules and conduct are
beyond the reach of the U.S. Constitution.\18\
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\17\ In the majority were Justices Stevens, Blackmun, Rehnquist,
Scalia, and Kennedy. Dissenting were Justices White, Brennan, Marshall,
and O'Connor. Notable is that the division among the justices was not
along normal ideological lines, with some ``liberals'' and
``conservatives'' on each side.
\18\ It remains a legal mystery exactly what would happen if a
coach were fired by a state university at the direction of the NCAA and
then successfully established that the university, unquestionably a
state actor subject to constitutional requirements, had violated his
due process or other constitutional rights. If the court merely ordered
damages to be paid, it would not be a conceptual problem. But if the
court ordered the institution to rehire the coach, the school would be
put between the proverbial rock and a hard place--being threatened with
contempt of court if it did not reinstate the coach but with severe
sanctions, possibly expulsion, by the NCAA if it did. This scenario has
not yet played itself out so it is not clear what approach the courts
would take.
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The Supreme Court reaffirmed this ruling in 2001 in Brentwood
Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288
(2001), another 5-4 decision,\19\ even though ironically the majority
there held that a state high school athletic association whose
membership was 84% public high schools was a state actor and could be
challenged for violating a member school's First Amendment free speech
rights. Justice Thomas' dissent argued that ``it [was] not difficult to
imagine that application of the majority's entwinement test could
change the result reached in [Tarkanian], so that the National
Collegiate Athletic Association's actions could be found to be state
action'' (see id. at 314, fn.7). However, writing for the majority,
Justice Souter expressly adopted the holding and reasoning in
Tarkanian, distinguished the two cases, and reaffirmed that the NCAA
was not a state actor and its actions not subject to constitutional
review (see id. at 297-98). Thus, the narrow 5-4 holding in Tarkanian
was expanded and entrenched since all nine justices in Brentwood
Academy took the view that the result in Tarkanian was intact and
correct.
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\19\ In the majority were Justices Souter, Stevens, Ginsberg,
Breyer, and O'Connor. Dissenting were Justices Thomas, Rehnquist,
Scalia, and Kennedy. Notable is that the division among the justices
was sharply along normal ideological lines, with Justice O'Connor
casting her frequent swing vote in this case with the ``liberals'' in
the majority.
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In addition to being immune from attack under the U.S.
Constitution, the NCAA is apparently also immune from state
constitutional or statutory provisions establishing due process and
other similar constitutional-like protections. Shortly after Tarkanian,
at least four states (Nevada, Nebraska, Illinois, and Florida) adopted
legislation that specifically required the NCAA to grant various
degrees and types of due process to individuals and institutions
accused of violating NCAA rules.\20\ When in 1990 the NCAA received
information that Jerry Tarkanian had again violated its rules and
Tarkanian in turn demanded in a letter that he be given a number of
procedural rights not provided for under the NCAA's rules, including
access to a number of documents, the NCAA challenged the Nevada statute
in a declaratory judgment action filed in Las Vegas. Both the District
Court and in turn the Ninth Circuit, relying on several cases that had
struck down state laws designed to regulate professional sports
leagues,\21\ held that it violated the Dormant Commerce Clause of
Article II of the U.S. Constitution for a single state to attempt to
set the standards for NCAA rules and procedures when those rules and
procedures necessarily have to be applied uniformly nationwide, as most
NCAA rules do due to the inherent nature of the athletic competition
activity that it regulates. Accordingly, Nevada's statute (and of
course the other states' as well, assuming their circuits would agree
with this ruling) was held to be unconstitutional and could not be
enforced against the NCAA.\22\ See NCAA v. Miller, 795 F.Supp. 1476 (D.
Nev. 1992), aff'd, 10 F.3d 633 (9th Cir. 1993).
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\20\ For a brief look at the differing approaches of the Nebraska
and Nevada statutes, see Weiler & Roberts, Sports and the Law (3d ed.)
at pp.757-58 (West Group 2004).
\21\ See, e.g., cases holding that state antitrust laws cannot
apply to professional sports leagues--Flood v. Kuhn, 407 U.S. 258, 284
(1972); Partee v. San Diego Chargers Football Co., 34 Cal.3d 378, 194
Cal.Rptr. 367, 668 P.2d 674 (1983); State of Wisconsin v. Milwaukee
Braves, 31 Wisc.2d 699, 144 N.W.2d 1 (1966); Matuszak v. Houston
Oilers, 515 S.W.2d 725 (Tex.Ct.App. 1974); or holding that state labor
laws cannot apply to professional sports leagues--Hebert v. Los Angeles
Raiders, 2 Cal.Rptr.2d 489, 820 P.2d 999 (Cal.App. 1991).
\22\ Interestingly, in the wake of a recent controversial
investigation involving the University of Alabama's football program,
the Collegiate Athletic Association Procedures Act was introduced in
the Alabama House of Representatives in 2003. It would require that the
NCAA provide due process to any Alabama institution accused of rules
infractions and would give the Alabama state courts jurisdiction to
review NCAA findings and penalties. Unless the Eleventh Circuit takes a
different view of this issue than the Ninth Circuit did in Miller, this
legislation, should it pass, would likely suffer the same fate as
Nevada's did over a decade ago.
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Thus today, after Tarkanian, Brentwood Academy, and Miller, it
seems reasonably clear that, except to the limited extent federal
legislation might apply,\23\ the NCAA's enforcement process and
procedures are unconstrained by either federal constitutional or state
law. Thus, the question for Congress to consider is whether it would be
appropriate for new federal legislation to impose any procedural
requirements on the NCAA, and if so, what those requirements should be.
---------------------------------------------------------------------------
\23\ So, for example, the NCAA arguably could, if threshold
statutory elements are met, still be subject to the substantive
requirements of the Americans With Disabilities Act, the Civil Rights
Act of 1964, Title IX of the Education Amendments of 1972, or the
antitrust laws, just to name a few. While the NCAA has been sued for
alleged violations of all of these federal statutes in recent years,
none of the cases remotely implicates the NCAA's process or procedures
for dealing with alleged rule infractions by member institutions, and
it is hard to imagine a case in which one would.
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III. THE IMPLICATIONS OF IMPOSING STRICTER PROCEDURAL REQUIREMENTS ON
THE NCAA ENFORCEMENT PROCESS
In order fully to understand and appreciate the NCAA's process and
procedures for enforcing its complex array of substantive rules
governing eligibility, recruiting, academic standards, and amateurism
(the ``enforcement process''), it is first necessary to understand the
larger culture in which those procedures exist and operate. The NCAA
enforcement process is simply the mechanism for enforcing the
substantive rules that govern intercollegiate athletics, and it can
only be understood in the context of that underlying ``law.'' The
degree of difficulty of enforcing these rules cannot be overstated, in
significant part because the idealized purpose and vision of
intercollegiate athletics that the NCAA's substantive rules purport to
preserve stand in stark contrast to the commercial market realities
that dictate the priorities and create the behavioral incentives for
those operating within this system. In other words, the market-driven
commercial and psychic incentives for coaches, athletic administrators,
boosters, and even university presidents and faculty to ``cheat'' are
enormous. In such an environment, where the urges of so many within the
system to violate the rules are great, yet the ``law enforcement
powers'' of the entirely private organization entrusted with enforcing
those rules are very limited, it requires extraordinary authority,
vigilance, and aggressiveness to prevent wholesale disregard for the
``law,'' chaos, and eventually the deterioration of the system
itself.\24\
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\24\ There are many who would argue that the ``system'' of big-time
intercollegiate athletics has become so corrupt, exploitive, and
hypocritical that it is not worth protecting. Whatever the merits of
that larger philosophical argument, it is not relevant to an assessment
of the fairness of the enforcement process established for the purpose
of preserving the system. One can only reasonably assess the fairness
and effectiveness of any process by evaluating it in terms of how it
achieves the goals for which it was established, not whether the goals
were legitimate in the first place.
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It should be noted that for purposes of my testimony today, I am
specifically focusing on Division I-A football and Division I men's
basketball. I am aware that the vast majority of college athletes do
not play for NCAA Division I member schools, and that even in Division
I the vast majority of athletes do not play I-A football or I men's
basketball. But to a greater or lesser extent, the overwhelming
majority of these thousands of student-athletes in all of their various
sports roughly resemble the amateur ideal of the student-athlete that
the NCAA is entrusted to preserve, and while there are still some
psychic, reputational, and even financial incentives for coaches and
others in these other sports and divisions to violate the rules, they
exist at a much lower level with very little commercial or public
influence. Thus, a great majority of the serious violations of NCAA
rules, of the time and effort of the NCAA's enforcement staff, and the
public and media attention on infractions occurs in the two sports of
I-A football and I men's basketball. And it is not mere coincidence
that these two enormously commercialized sports generate a huge
percentage of intercollegiate athletic revenues. If it were not for I-A
football and I men's basketball, the process and procedures that we are
discussing today would be little noticed, would probably work well
without controversy, and would draw no interest from Congress. So it is
on I-A football and I men's basketball that I focus here.
As I have often said and written before, the intercollegiate sports
``industry'' is a peculiar animal. On the one hand, the statement of
the NCAA's ``Fundamental Policy'' claims that:
The competitive athletics programs of member institutions are
designed to be a vital part of the educational system. A basic
purpose of this Association is to maintain intercollegiate
athletics as an integral part of the educational program and
the athlete as an integral part of the student body and, by so
doing, retain a clear line of demarcation between
intercollegiate athletics and professional sports.\25\
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\25\ NCAA Constitution, Art. 1.3.1.
On the other hand, multi-billion dollar television contracts for the
Division I men's basketball tournament (known as ``March Madness''),
over $15 million payouts to each team participating in a Bowl
Championship Series football game every year, and the frequent
revelations of academic cheating, paying athletes and their families,
using sex and drugs to recruit, criminal rap sheets, and illiterate
``student''--athletes suggest a very different reality. Division I-A
football and I men's basketball are big business, and the economic,
morale, and public relations consequences for an institution of success
or failure on the field or court are substantial. Winning head football
and men's basketball coaches today routinely make millions of
dollars,\26\ whether or not most of their players fail to graduate,
commit major crimes, or can even read or write. On the other hand, it
is generally accepted and understood that a coach who loses too many
games will soon find himself unemployed no matter how successful he is
in running a ``clean'' program.
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\26\ A perfect example is in my home state of Louisiana. Because
his team won the BCS national championship last year, LSU's football
coach Nick Saban was rewarded by having his contract renegotiated so
that he is now earning $2.3 million in 2004, with increases over the
next several years to $3.0 million annually.
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Thus, with so much at stake, there are enormous incentives for
``revenue sport'' coaches and others to do as much as possible to gain
a competitive advantage, even if that means breaking an NCAA rule.
There is no doubt that the incentives to cheat are great, the
opportunities to cheat are numerous, the likelihood of getting caught
appears to be fairly small, and every institution is suspicious that
its competitors are ``getting away with something'' and thereby gaining
some competitive advantage. It is this environment that the NCAA is
charged with adopting and enforcing its complex set of rules designed
to preserve the ideal of the amateur student-athlete. This is obviously
no easy task.
The task is made even more difficult by the fact that the NCAA is a
private organization, and thus it lacks the authority to employ
important investigative and prosecutorial techniques available to
public law enforcement and criminal justice authorities. It has no
power to compel individuals to provide information. It cannot subpoena
witnesses to attend depositions or hearings. It cannot hold individuals
in contempt for not complying with its procedural rules or requests. It
cannot impose fines or imprison individuals who violate the rules or
lie. It cannot arrest or detain anyone. It cannot grant anyone immunity
from criminal prosecution should his ``testimony'' reveal illegal
activity. In short, as a purely private membership organization, the
NCAA must rely entirely on the voluntary cooperation of those who have
relevant information to provide that information, and its only
``power'' is the ability to withhold or condition the benefits of
membership.
Thus, the NCAA enforcement process necessarily must try to carry
out its mission in an environment in which the deck is heavily stacked
against it. Furthermore, it is critical to recognize that, just like
with any public criminal justice system, no process for ascertaining
facts, determining guilt, and handing out punishment is perfect. Even
with our criminal justice system and all of its constitutional
protections for defendants, we often read about convicted ``criminals''
being released from prison, sometimes from death row, after many years
of incarceration because new evidence has established their innocence.
Over the years many people have been falsely accused and often
convicted of crimes that they did not commit, just as many guilty
individuals have escaped justice. Thus, it is pointless to ask if the
NCAA's system is imperfect, for it inevitably is and will be. No matter
how much power is entrusted to enforcement authorities and how few
protections are given to the ``accused,'' some who are guilty will
escape; and no matter how many rights are guaranteed, some who are
innocent will be unjustly accused and perhaps even found guilty.
Rather, the appropriate question is how should the NCAA structure its
process to minimize both the false positives (those wrongfully accused
or found guilty) and the false negatives (those guilty of violations
who escape punishment), and thereby deter further wrongdoing, while
maintaining an acceptable balance between those two undesirable but
inevitable dysfunctions.
In that context, I emphasize two points. First, like the Lee
Commission over a decade ago,\27\ I believe that there are things the
NCAA can do to improve the fairness, or at least the appearance of
fairness, of its enforcement system, provide greater procedural
protections for institutions and involved individuals, and reduce the
chances of a false positive without seriously undermining its ability
to enforce its rules effectively and thereby deter even more rampant
misconduct. This, however, would require that the NCAA invest
additional resources in its enforcement system, as I will urge and
explain shortly. But with billions of dollars flowing through Division
I college athletics, the level of expenditure needed to upgrade the
enforcement process to an appropriate level would be a relatively tiny
investment in order to achieve fairness, justice, and public confidence
in the system.
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\27\ In the wake of the Tarkanian and Miller cases, the NCAA came
under a great deal of public criticism for the methods it used in the
enforcement process, which in turn led NCAA Executive Director Dick
Schultz in April 1991 to bring together a group of distinguished
individuals, chaired by President Reagan's Solicitor General, Rex Lee,
to study and make recommendations for improving the enforcement
process. This Lee Commission issued its report on October 28, 1991,
with eleven recommendations. Many of the recommendations have
subsequently been adopted to a greater or lesser extent by the NCAA,
for example (1) establishing a preliminary notice of impending
investigation (the NOI), (2) establishing a summary disposition
procedure in appropriate major infractions cases (see By-law Art.
32.7), (3) establishing an appellate body (now the Infractions Appeals
Committee), and (4) expanding the extent to which decisions of the
Committee on Infractions are publicly reported, and (5) establishing a
conflict of interest policy for members of the enforcement staff (see
By-law Art. 32.2.2.2). Other recommendations have either entirely or
largely not been adopted, most notably (1) to establish a group of
neutral former judges as hearing officers entrusted with resolving
factual disputes before the Infractions Committee decides penalties,
and (2) opening up the Infractions Committee hearings to the public
except when highly confidential matters are being presented. See
generally, Report and Recommendations of the Special Committee to
review the NCAA Enforcement and Infractions Process (The Lee
Commission), October 28, 1991 (on file in my office).
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That said, however, I also am firmly convinced that while some of
the procedures employed by the NCAA seem rather severe and out of step
with traditional American notions of due process and fairness, in fact
the NCAA's enforcement process is remarkably accurate. It seldom
wrongfully accuses and even more rarely mistakenly ``convicts.'' That
is to say, there are very few false positives. There is occasionally
controversy about whether a penalty imposed is inappropriately severe,
but it is extremely rare that there is any serious doubt about whether
a violation has been committed. I believe that this is true in part
because the enforcement staff has little or no incentive to pursue
false charges against anyone; if anything there is an opposite
incentive not to pursue any but the most clear cases simply because of
the public pressure and vilification that is often heaped on those who
threaten popular athletic programs. Furthermore, often unlike public
prosecutors, members of the enforcement staff are not in a position to
use the process to build a reputation or career. They are generally
young, notoriously poorly paid, have no axe to grind, and invariably
toil anonymously and out of the public eye. There is almost no
evidence, other than the occasional unsubstantiated accusations of
undoubtedly ``guilty'' coaches who are desperately trying to save their
privileged status and large incomes, suggesting that the enforcement
staff has ever acted in anything but reasonably cautious good faith.
The staff, being generally young and frequently inexperienced, is
certainly not perfect and can undoubtedly make mistakes, but the
mistakes seem to be relatively few (far less than those made in our
criminal justice system) and always made in good faith.
Given that there are very few ``wrongful convictions,'' giving
accused institutions and involved individuals more procedural
protections would produce virtually no greater justice.\28\ On the
other hand, giving accused institutions and involved individuals
significantly greater procedural rights in some forms might well enable
many to escape ``conviction'' based on what we have come to think of as
technicalities--factors not really having anything to do with the
innocence or guilt of the defendant--which would in turn likely cause
more to violate rules because of a greater sense of impunity. Thus,
imposing more stringent procedural obligations on a small and generally
inexperienced staff and on the all-volunteer Infractions Committee
would likely do far more damage than good by increasing significantly
the number of false negatives, and thereby encourage even more
violations, while not reducing the essentially non-existent false
positives. In a system in which the incentives and opportunities to
cheat are already enormous, this shift in favor of more false negatives
and a lesser deterrent against misconduct could have a serious adverse
effect on the integrity of the college athletics industry (such as it
is).
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\28\ One might envision that giving accused institutions and
individuals more leeway in presenting evidence and challenging the
credibility of the evidence against them might result in the
Infractions Committee imposing less severe penalties. Of course,
whether that would be more or less appropriate would be a wholly
subjective judgment and not susceptible to normative evaluation. Thus,
I mention it only in passing here.
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As an example, if the law were to require that accused institutions
and individuals have the right to cross-examine those who provide
evidence against them and preclude the use of hearsay evidence, it
would severely diminish the ability of the system to find and to
penalize violations. Witnesses with personal knowledge of violations
are frequently young, poor, and unfamiliar with legal processes who
would often decline to cooperate rather than be subjected to
interrogation and inevitable public scrutiny.
Another example relates to the ``Restitution Rule'' under which the
NCAA can penalize an institution for allowing an ineligible player to
participate even if it did so under a court order. While this seems
fundamentally unfair at first blush, on closer analysis its value
becomes apparent. If an institution were not subject to penalties in
such a situation, coaches could recruit a number of ineligible players,
seek short-term injunctions just before important contests from local
judges who often act out of partisan or parochial interests, and then
allow the player to participate to the substantial competitive
advantage of the team (and unfair disadvantage to its opponents), all
without any fear of subsequent penalty when the appellate courts
inevitably reverse the injunction. This has been the reasoning of the
courts that have uniformly upheld the legality of the Restitution
Rule--that the NCAA members voluntarily agreed to be subject to it and
without it schools could easily obtain unfair competitive advantage
through dishonorable means.\29\ Thus the rule may seem unfair on the
surface, but it is important to preventing a means for wholesale
evasion of the NCAA's eligibility rules.
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\29\ See cases cited at n.12, supra.
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IV. Recommendations
In the final analysis, the most fundamental problem confronting the
NCAA enforcement process is the inevitable one of trying to enforce a
complex set of rules designed to preserve aspirations that are at odds
with reality. Division I-A football and Division I men's basketball are
businesses driven by commercial pressures and incentives. Winning is of
great value and is rewarded; losing is problematic and is punished. Yet
in every game one team must win and one must lose, so there will always
be huge pressures on every institution to achieve the former and avoid
the latter, even though inevitably there will always be losers and few
champions. History teaches repeatedly that while ``higher values'' can
be imposed by law up to a point, when market forces become great
enough, law-breaking will become widespread and the laws will become
increasingly difficult to enforce.\30\ Therefore, the one clear way to
reduce the cheating and to improve the fairness of the enforcement
process is to reduce the commercial pressures that today drive Division
I intercollegiate athletics and define its ``win at all costs''
culture. I could make several recommendations in this vein for
``cleaning up'' college sports, such as capping coaches' salaries,
capping expenditures for recruiting or prohibiting recruiting
altogether (as many high school associations do), limiting the revenues
and number of TV appearances for a football or basketball team, and/or
requiring athletic revenue to be widely shared among all schools in
Division I. Such reforms, however, would be counter to the interests of
the millions of fans who now ``consume'' college athletics as an
entertainment product, and implementing them would require either
direct government regulation or at least an antitrust exemption for the
NCAA. But such sweeping reform of college sports is beyond the scope of
this hearing and is likely politically unrealistic.
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\30\ There is perhaps no better example of this phenomenon than the
Eighteenth Amendment to the U.S. Constitution, which imposed a ban on
the manufacture, sale, or consumption of alcoholic beverages. The
market demand for such beverages was so enormous that the law simply
could not be effectively enforced and it was repealed by the Twenty-
First Amendment. Moral principles were eventually forced to give way to
economic reality.
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Focusing just on the NCAA's enforcement process, I would not
recommend that Congress pass legislation imposing due process
requirements, either generally or specifically, on the NCAA. Turning
over the regulation of the NCAA enforcement process to courts that are
unfamiliar with the peculiar culture of Division I athletics, courts
that are invariably located in the very communities where passions in
any particular case will run the highest, would only serve to undermine
the NCAA's ability to enforce its rules and maintain some semblance of
conformity with the values and mission of college sports. It would
almost certainly greatly increase the number of rules violators who are
able to escape detection and penalty while not decreasing the number of
innocent institutions and individuals who are wrongfully accused and
punished.
Nonetheless, I do believe that the enforcement process could be
significantly improved in ways that would both result in more
``convictions'' of guilty parties while also enhancing fairness and the
public's confidence in the integrity of intercollegiate athletics. But
the key to these improvements is not specific legal mandates, but
rather increasing the NCAA's investment in the process so as to create
a larger, better, and more professional enforcement system. An
enforcement staff of only 21 mostly young, inexperienced, and lowly
paid investigators to police well over a thousand institutions
employing tens of thousands of coaches who recruit hundreds of
thousands of student-athletes, in a climate where there are substantial
incentives to cheat, is grossly inadequate. Furthermore, the high rate
of turnover among the staff, undoubtedly in part the result of
relatively low compensation, diminishes its effectiveness. Were there
to be a substantially larger and more stable and highly paid
professional staff of experienced investigators, the likelihood of
detecting violations would be greater, the confidence of everyone in
the thoroughness and reliability of investigations would be greater,
and the need to rely on ``rats,'' to cut corners, and to employ
questionable tactics would be greatly diminished.
Furthermore, I believe that both the Committee on Infractions and
the Infractions Appeals Committee in Division I should be composed of
paid professional jurists--not necessarily current or former public
judges, but highly respected individuals with training in law and
dispute resolution whose motives, knowledge, and skill could not
reasonably be doubted. These two crucial committees are really
adjudicatory ``courts,'' not ``committees'' in any normal sense of that
word, and staffing them with volunteers who come solely from within the
NCAA system is not appropriate. Because the members of the Infractions
Committee have limited amounts of time they can devote to this
``volunteer'' activity, hearings must be streamlined and cut shorter
than they need to be or should be. And because the committee members
are not trained or experienced adjudicators, implementing more complex
procedural processes would be difficult for them to manage. There is no
good reason why witnesses, especially crucial witnesses, who are
willing to attend and testify at a hearing should be prevented from
doing so, as they are now, other than that the proceedings would become
longer and more complicated, taxing both the time and judicial skills
of the volunteer judges. Other procedures employed during hearings seem
designed solely to create efficiency, not a better result or more
confidence in the fairness of the process, and could be improved if the
``judges'' were paid, experienced, properly trained, and available for
however long was required. While I am unaware of any current or former
member of either committee who has ever acted with any but the highest
degree of integrity and good faith, this is not their primary job or
even an important part of their professional careers. Without casting
any aspersions on anyone who has served on either of these committees,
the old adage that ``you get what you pay for'' seems particularly apt.
Thus, I would recommend that Congress urge and even pressure the
NCAA to invest far greater resources into its enforcement process,
including expanding the size and improving the compensation of the
enforcement staff and establishing a ``judiciary'' of paid and properly
trained ``judges.'' The NCAA is and always has operated its enforcement
process ``on the cheap'' despite having huge resources at its disposal,
and the process predictably suffers as a result. Congress should use
its influence to change this and to require the NCAA to make
enforcement one of its highest priorities. If it does, the specific
ways that the procedural rules could be made more fair without
sacrificing the effectiveness of the process would, I am convinced,
naturally follow.
One final recommendation I would make is rather radical, but
compelling. I believe Congress should fully explore and structure a
mechanism for the NCAA enforcement staff to obtain search warrants and
subpoenas from federal courts, which would enable it to obtain evidence
and compel testimony from reluctant or unwilling individuals under
penalty of perjury. Likewise, if witnesses could be compelled to appear
and testify under oath before the Committee on Infractions, many of the
impediments to providing institutions and involved individuals with
greater procedural rights and protections would be greatly diminished
since witnesses would not have to be coddled with promises of being
insulated from exposure or cross-examination. If, as the mere fact that
the Subcommittee is holding this hearing suggests, NCAA enforcement
action can have substantial consequences that economically and
psychologically affect a large segment of the general public, then
public policy would be furthered by providing these basic law
enforcement tools to those who are entrusted with enforcing the NCAA's
rules.
V. Conclusion
While there are many aspects to the NCAA's enforcement of its rules
that are often criticized for being unfair or that violate some
traditional sense of due process or other fundamental rights of the
``accused,'' I do not share that general criticism. There are indeed
many specific procedures employed during the course of an NCAA
infractions case that could make the process at least appear, if not
actually be, more ``fair,'' but in the end there is no evidence to
suggest that the NCAA's enforcement system is fundamentally flawed or
makes major mistakes. Wrongful convictions are extremely rare and the
penalties assessed are remarkably predictable and consistent. In the
cultural environment in which the enforcement process operates in
Division I, most of the seemingly questionable measures and procedures
employed can be quite reasonably justified. In I-A football and I men's
basketball, the commercial incentives and opportunities to cheat are
enormous, the likelihood of detection is slight, and proving violations
can be quite difficult. To impose judicially enforceable due process or
other strict procedural requirements on the enforcement staff or the
Infractions Committee as they are constituted today would only be
likely to diminish their ability to detect, ``convict,'' and penalize
violations that if allowed to become widespread and unpunished could
undermine the entire structure of intercollegiate athletics.
Furthermore, creating such a legal obligation would give all those
found guilty of rules violations a guaranteed avenue of further appeal
to the courts, which would impose both time and financial costs on the
NCAA, undermine the effectiveness of its enforcement system, and
further burden public courts that are already strained. If reducing the
number of frivolous lawsuits is desirable, this would not be a way to
achieve it.
Meaningful positive reform of the enforcement process would require
much more than simply imposing ``due process'' or other simple-sounding
requirements on the NCAA. The NCAA could and should be pressured to
make a substantially increased investment of resources in its
enforcement process. First the NCAA should greatly increase both the
size and the compensation of its enforcement staff so as to enable a
larger and more stable and experienced investigative staff more
effectively to detect, pursue, and prove rule violations without resort
to unnecessary short-cuts or questionable tactics. Second, the NCAA
should establish in Division I a paid professional administrative
``court'' to replace the all-volunteer Committee on Infractions and
Infractions Appeals Committee so that properly trained and experienced
jurists could devote the necessary time, skill, energy, and attention
to judging every case thoroughly and fairly. The NCAA has historically
carried out its extraordinarily important enforcement function by
devoting precious few of its enormous financial resources to it, and
inevitably in this environment corners must be cut and the appearance
of fairness compromised for the sake of efficiency. Congress should
insist that the NCAA substantially increase its financial investment in
and commitment to its enforcement process.
Finally, Congress should also consider establishing a mechanism for
the NCAA enforcement staff and Infractions Committee to obtain warrants
and subpoenas so that evidence could be obtained and testimony taken
under penalty of perjury. Armed with such law enforcement tools,
policed by a large and well paid investigative staff, and heard by a
``court'' of properly trained professional ``judges,'' there is every
reason to believe that the NCAA's enforcement process would be even
more effective than it currently is at detecting and penalizing
violations of its rules while maintaining an eminently fair and just
(albeit inevitably imperfect) process.
Mr. Chabot. I would also note that, without objection, all
Members will have 5 legislative days to submit additional
materials for the hearing record; and it is the practice of
this Committee to swear in all witnesses appearing before it.
So if the witnesses would please stand and raise your right
hand.
[Witnesses sworn.]
Mr. Chabot. We do have a lighting system here, as you might
have noted. There are two boxes on the desk there, and each
witness is allowed 5 minutes to testify. When 4 minutes have
gone by, a yellow light will come in and tell you that you have
1 minute to wrap up. When the red light comes up, we'd
appreciate you wrapping up. We appreciate you trying to stay
within the 5-minute rule. And then the Members of the panel
will have 5 minutes to question each of the witnesses.
Mr. Chabot. And we will begin with you, Mr. Bloom, if you
would testify for 5 minutes.
TESTIMONY OF JEREMY BLOOM, U.S. OLYMPIC SKIER AND FORMER
UNIVERSITY OF COLORADO FOOTBALL PLAYER
Mr. Bloom. Distinguished Members, I'm honored to testify in
front of you today. I'm a former student-athlete, and I intend
to give you a perspective into personal experience with the
current procedures and practices of the NCAA.
The current procedural system for a student-athlete to
dispute interpretations of the NCAA bylaws is flawed. In the
United States, when there is a conflict, a dispute or
disagreement between two parties, fairness is ultimately judged
by our peers or by impartial court proceedings. In the NCAA,
the judgment of the dispute is formed exclusively within their
organization by their own members. They are the judge, the jury
and the executioner; and although they may be a voluntary
organization for the institutions, they don't give the student-
athlete much of a choice but to become a member. For instance,
if any person decides to play professional football, they
effectively must take part in the NCAA.
In the current system, a student-athlete must allow his or
her university to plead the case of the student-athlete to the
very members at the NCAA who disagree with them. It is not
rational to believe that the procedures that are subject to
bias can produce just and impartial decisions. When the NCAA
does rule against a student-athlete, the student-athlete's
ability to appeal their decision is flawed as well.
In my own experience, I argued my appeal with the NCAA's
Reinstatement Appeals Committee. The NCAA states after 1999
their way of hearing appeals changed by appointing members to
hear appeals from outside their NCAA memberships. This was not
the case in my appeal. The committee was made up of five
members, all of whom had direct NCAA administrative ties. Two
were current members of the NCAA conferences, and the remaining
three were current administrators at NCAA member institutions.
I believe it is difficult to find impartiality with an appeals
committee that is made up of members who have direct ties to
those who were previously denied relief.
Secondly, NCAA restitution bylaw 19.7 falls far short of
promoting impartiality at the court level. In brief, 19.7 above
states that if a student-athlete is granted relief by a court
and if at any time in the future that decision is reversed by a
higher court, the NCAA reserves the right not only to place
sanctions on the player but reserves the right to impose
financial as well as forfeiting penalties against the
university for following the court order. In my experience,
this restitution bylaw brought much concern to the judge who
heard my case as well as spurred university officials to notify
me that, even if I were granted injunctive relief by the court,
that the university would not take the risk of allowing me to
play for fear of possible sanctions.
In conclusion, I believe 19.7 is against public policy; and
I believe it does not promote due process. The NCAA has had
decades to institute necessary changes to their practices and
procedures. It seems like any time a congressional body of any
kind suggests changes to the NCAA, they always answer in a way
that they are currently attempting to improve the system, but
nothing ever changes. You are the only people in this country
that can initiate change and oversight, and I encourage all of
you to do so.
Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Bloom follows:]
Prepared Statement of Jeremy Bloom
Distinguished Committee Members,
My name is Jeremy Bloom and I am a 22 year old former NCAA student-
athlete (effective August 24, 2004) from Loveland, Colorado and the
defending World Champion in Moguls Skiing. I have been a professional
skier and member of the U.S. Ski Team since I was 15. I represented the
United States in the 2002 Olympic Games in February, 2002 in SLC. In
2002 at 19 years of age, I became the youngest person ever to win the
World Grand Prix Title and the third ever American. I enrolled at the
University of Colorado in the fall of 2002 and I currently hold a
number of receiving, punt return and kick return records at the
University of Colorado. I also hold the Big XII Championship Game
record for the longest punt return. Additionally, I earned Freshman
All-American honors in 2002 and All-Big XII honors in 2003. In 2003 I
also became the first American to win a World Championship Gold Medal
in Mogul Skiing. My cumulative GPA is a 3.0. On August 24th of this
year the NCAA declared me ineligible and as a result I have lost the
last 2 year of my football eligibility.
I submit to you my testimony today not to try and improve upon my
own situation, nor to attempt to alter or change past injustices.
Rather, I submit to you today to expose the injustice and hypocrisy of
the NCAA in an effort to create change for the millions of student-
athletes to come. My objective is to demonstrate to you today through
my experiences with the NCAA, that the organization does not provide
due process, as
defined in the U.S Constitution, to its student athletes. I intend
to show to you that the NCAA enforces its by-laws governing student
athletes in an arbitrary and capricious manner and that its process of
resolving disputes with student athletes is prejudiced and partial.
NCAA BACKGROUND
In 2001, after I was offered a scholarship to the University of
Colorado, but prior to my enrollment at the University, I began to
inquire at the University Compliance office about the NCAA rules on
competing as a professional in another sport, which I had been doing as
a skier since 1998. The compliance officer informed me that NCAA by-
laws allow a student-athlete to compete as a professional, but they do
not allow a student-athlete to receive endorsements. Unfortunately, in
my sport, skiing, the only way a professional skier can make money is
through endorsements (there is nominal prize money if you win a World
Cup event). The U.S Ski Team pays no salary, but it does fund a
fraction of an athlete's training, provides a uniform, and covers in-
season travel costs (only for A & B Team). All other equipment,
training expenses, living expenses, insurance, food, travel, etc. is
paid for by the athlete. It is customary for professional skiers to
endorse ski equipment, resorts and other products to pay for these
expenses. In this instance the two separate rules in the NCAA by-laws
conflict with one another. Because of the contradiction in terms of
these NCAA by-laws, the University of Colorado Compliance Officer
advised me that the only approach to resolve the situation was for the
University to file a waiver on my behalf, essentially asking the NCAA
to make an exception in my unique case. Ironically, while I was
actually competing in the Olympic Games, the NCAA denied my waiver
request.
Following the NCAA's denial of the waiver, I sought relief from the
District Court of Colorado. Unfortunately, in part because of the NCAA
rule 19.7 (which was referred to as 19.8 back in 2002), District Court
Judge Hale ruled against my request for preliminary injunction. His
judgment is attached.
Subsequently, due to my desire to play college football, I
relinquished all of my endorsements and enrolled at the University of
Colorado. During this time I submitted an Appeal to the Colorado State
Court of Appeals. While I felt that I could sacrifice, in competitive
terms, to be under-funded in 2003 and 2004, I was certain that with the
Olympic Games looming only 2 years away that I could not afford to
continue in this manner and have a chance to achieve my objective of
winning an Olympic Gold Medal for my country in 2006. As a result,
after playing football for the University of Colorado for two years
while forfeiting all endorsement revenue, in January of 2004 I
announced that I was beginning to except endorsements and planned to
play football for the University of Colorado.
In March of 2004, I signed my first endorsement contracts since
enrolling at the University of Colorado.
On April 7, 2004 the Colorado State Court of Appeals heard my case
and six weeks later upheld the original ruling.
At this point, I believed my football career was essentially over.
However, in the days leading up to my appeal being heard (on 4/7/04),
information was brought forward that, until then, only the NCAA, the
University of Iowa, Tim Dwight and Dwight's representative had
available to them. This information established that in 1999 that Tim
Dwight, a professional football player who had accepted promotional and
endorsement monies related to his professional sport of football was
reinstated by the NCAA and allowed to run track for the University of
Iowa, and was allowed to keep those monies and arrangements. The Tim
Dwight case is virtually identical to my own case. (I will cover the
Dwight case in further detail later in this testimony in order to
establish to the committee that the NCAA practices are prejudiced,
unfair and arbitrary).
With this newly discovered information, the University of Colorado
submitted a reinstatement request, on my behalf. The basis of the
request was the precedence that had been set in the Tim Dwight case.
Although Mr. Dwight's case was virtually identical to my case, the NCAA
denied my request. The only rationale that the NCAA provided that I am
aware of (because I have never been provided with one document from the
NCAA during the entire administrative process within the NCAA system)
in ruling for Mr. Dwight, while denying me, is that I ``knowingly''
violated the NCAA by-laws. Apparently, the NCAA believes that Mr.
Dwight did not, although he provided my attorney with a signed
affidavit that says that he did.
My final opportunity to gain reinstatement was to have the
University of Colorado, on my behalf, appeal this decision. They did
so, and I was allowed ten (10) minutes to state my case to the
Reinstatement Appeals Committee. Like all of the NCAA committee's that
made decisions on my eligibility, the Reinstatement Appeals Committee
is solely made up of people that work directly for the NCAA or are
directly affiliated with the NCAA. In the case of the five (5) members
of the Reinstatement Appeals Committee: Two (2) representatives came
from Conference's within the NCAA and three (3) representatives were
from three separate NCAA member institutions (Universities). Needless
to say, the make-up of this committee does not seem to promote
impartiality. They ruled against me and officially ended my college
football career.
One monumental and first time finding which Judge Hale established
in the District Court, and which was later affirmed by the Colorado
State Court of Appeals, is that a student-athlete is a third party
beneficiary of the contract between the NCAA and it's member
institutions.
Judge Hale's ruling states:
The NCAA has conceded its Constitution and By-Laws constitute a
contract between it and its members which approximately 1,267.
Mr. Bloom claims that he is a third party beneficiary of that
contract. As a threshold matter I deem it appropriate to
determine whether Mr. Bloom is a third party beneficiary of the
Contract. If he is not, that is the end of the inquiry for the
claimed breech of contract. I find that Mr. Bloom is a third
party beneficiary to the contract between the NCAA and its
members and CU in particular.
NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF IMPARTIALITY
The NCAA's administrative process as it relates to disputes with
student-athletes has been constructed to be many things, but fair and
impartial it certainly is not. This system is inherently biased and is
designed to produce almost exclusively prejudiced results. The NCAA
architecture is diametrically opposed to the one that our forefathers
carefully and painstakingly crafted over two hundred years ago. The
NCAA internal judicial process resembles more that of tyrannical regime
than it does a democratic process. All student athletes are appointed,
by virtue of NCAA rules, sole and exclusive representation during any
proceedings within the NCAA administrative system by an NCAA member
institution; in my case, the University of Colorado. Furthermore, every
NCAA panel, committee and appeals committee member that reviewed and/or
rendered a decision ``on my behalf'' was directly associated with the
NCAA, a member institution, or one of its conferences. There is no
independence within the NCAA administrative process; therefore there
can be no impartiality.
The NCAA has consistently defended its position by claiming to be a
voluntary club, which the U.S. Courts have demonstrated great
reluctance to interfere upon. The NCAA may be correct in that it is a
voluntary club with regards to the member institutions, however,
student athletes, while third party beneficiaries to the contract
between the NCAA and its voluntary members, are not voluntary members
of the club. And, in fact, the NCAA does not operate as, nor remotely
resemble, a voluntary club with regards to its student-athletes. In
most instances it acts and operates as a well insulated and neatly
protected monopoly. In the instance of football, like many other men's
and women's sports, the NCAA is the only game in town. It is the minor
league system for the NFL. If a young person aspires to play
professional football in this country they have to, almost exclusively,
go through the NCAA's college football system. While the Arena Football
League has been established, comparing it to the NCAA would be like
comparing Microsoft to Apple Computers. Furthermore, the Arena Football
League gets the vast majority of its players from the NCAA ranks as
well.
Unfortunately, it has proven to be virtually impossible for a
student athlete to get relief or due process within the courts as well,
as a result of the NCAA's restitution by-law, 19.7. Through this by-law
the NCAA has effectively imposed partiality and prejudice even within
the U.S. court system. NCAA by-law 19.7 states:
19.7 RESTITUTION
If a student-athlete who is ineligible under the terms of the
constitution, bylaws or other legislation of the Association is
permitted to participate in intercollegiate competition
contrary to such NCAA legislation but in accordance with the
terms of a court restraining order or injunction operative
against the institution attended by such student-athlete or
against the Association, or both, and said injunction is
voluntarily vacated, stayed or reversed or it is finally
determined by the courts that injunctive relief is not or was
not justified, the Management Council may take any one or more
of the following actions against such institution in the
interest of restitution and fairness to competing institutions:
(a) Require that individual records and performances achieved
during participation by such ineligible student-athlete shall
be vacated or stricken;
(b) Require that team records and performances achieved during
participation by such ineligible student-athlete shall be
vacated or stricken;
(c) Require that team victories achieved during participation
by such ineligible student-athlete shall be abrogated and the
games or events forfeited to the opposing institutions;
(d) Require that individual awards earned during participation
by such ineligible student-athlete shall be returned to the
Association, the sponsor or the competing institution supplying
same;
(e) Require that team awards earned during participation by
such ineligible student-athlete shall be returned to the
Association, the sponsor or the competing institution supplying
same;
(f) Determine that the institution is ineligible for one or
more NCAA championships in the sports and in the seasons in
which such ineligible student-athlete participated;
(g) Determine that the institution is ineligible for
invitational and postseason meets and tournaments in the sports
and in the seasons in which such ineligible student-athlete
participated;
(h) Require that the institution shall remit to the NCAA the
institution's share of television receipts (other than the
portion shared with other conference members) for appearing on
any live television series or program if such ineligible
student-athlete participates in the contest(s) selected for
such telecast, or if the Management Council concludes that the
institution would not have been selected for such telecast but
for the participation of such ineligible student-athlete during
the season of the telecast; any such funds thus remitted shall
be devoted to the NCAA postgraduate scholarship program; and
(i) Require that the institution that has been represented in
an NCAA championship by such a student-athlete shall be
assessed a financial penalty as determined by the Committee on
Infractions. (Revised: 4/26/01 effective 8/1/01)
This single by-law grants the NCAA absolute power. The NCAA is the
only organization (that I am aware of) with the power to retroactively
penalize a person, community, and/or member institution because they
followed a court order. In practicality, by the time the NCAA exhausts
a dispute through the U.S. Courts, always with a chance that a decision
could be overturned on appeal at some point by the U.S. Supreme Court,
a student athlete will have grown from a teenager to a young man or
woman in their mid-twenties (possibly without ever competing). In my
own proceedings the process took 2 years and I was only at the State
Appeals Court level.
Here is the real affect on the judgment that was delivered in my
own case at the district court level in Colorado. At that time the by-
law was referred to as 19.8. Judge Hale wrote in his decision:
The harm to CU (University of Colorado) would be that an
injunction mandating that they declare Mr. Bloom eligible and
allow him to compete on the football team would risk the
imposition of sanctions pursuant to by-law 19.8, which would
allow the NCAA to impose sanctions if an injunction was
erroneously granted. These sanctions could include: forfeiture
of all victories, of all titles, TV revenue, as well as others;
forfeiture of games would irreparably harm all of the member of
the CU football team who would see their hard earned victories
after great personal sacrifice nullified; the loss of revenues
would harm all student athletes at CU who would find their
various programs less economically viable; imposition of NCAA
sanctions would harm CU's reputation; and sanctions would
reduce the competitiveness of various sport teams at CU.
I find that the harm to CU and the NCAA is more far reaching,
especially because it could harm other student athletes, than
the harm to Mr. Bloom. Therefore, the public interest would not
be served by an injunction.
These findings in no way diminish my belief that an
accommodation without court involvement could have been reached
without causing harm that would arise from an injunction
Clearly this by-law prohibits a student athlete the right to due
process and is against public policy.
NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF FAIRNESS
As I briefly described previously in the Background section of this
testimony, The University of Iowa's Mr. Tim Dwight had a virtually
identical situation to mine back in 1999 and one which would normally
constitute precedence and be referred to as a basis for decisions in
future cases like mine. However, as the NCAA has no oversight, no one
to answer to, and is essentially self-governed and self-policed, the
NCAA failed to even mention or cite this case, and when I requested
information about his case via the NCAA administrative process, I was
supplied with false, misleading and deceptive facts.
In 2001, following procedure, my agent, Andy Carroll, on my behalf
inquired through the University of Colorado's Assistant Director of
Compliance, Sherri McKelvey, and requested that she look into the Tim
Dwight case, which we had been informed was similar to mine. Ms.
McKelvey inquired to her colleague, Mr. Fred Mims, at the University of
Iowa about the details of the case and was incorrectly informed that
Mr. Dwight returned all of his endorsement money and ended his
agreements in order to be reinstated. Ms McKelvey also inquired within
the NCAA Administrative offices and was informed of the same thing. In
an e-mail dated January 25, 2002 to Mr. Carroll, Ms. McKelvey wrote:
``Nothing on Tim Dwight--he paid back all his endorsement money to get
reinstated.'' The e-mail is attached. The NCAA never submitted to Ms.
McKelvey the actual ruling in this case. Either due to systemic
administrative failure, or through a conscious effort to mislead and
suppress information in order to subvert my request, or just by
insufficient effort or incompetence by my sole representative to the
NCAA, I was delivered the false facts with regard to this case. As a
result, this course of action was never really further pursued.
Not until much later, April 4 2004, was I able to attain the actual
ruling and it was provided to me not by the NCAA but by Tim Dwight's
agent. It is attached for your review. The rationale given by the NCAA
is:
The staff informed the institution that it would not require
repayment inasmuch as the SA's promotional monies related
solely to his football participation.
After the newly surfaced and accurate details of Tim Dwight's NCAA
reinstatement was revealed to me by Tim Dwight's agent, the University
of Colorado compliance office used this as the basis for my
reinstatement request in August, 2004. The University of Colorado was
of the understanding from the NCAA, that if I agreed to suspend my
endorsement contracts while enrolled, that I may be reinstated. Just as
the NCAA decided in the Tim Dwight case. In this instance the NCAA
arbitrarily decided that my situation was different because I
``willfully violated numerous NCAA bylaws.'' Apparently, the rationale
was that Tim Dwight accidentally violated the rules and therefore was
allowed to be reinstated.
Subsequent to this ruling, the University of Colorado issued the
last and final appeal on by behalf (as per NCAA bylaws) to the NCAA
(Sub) Committee on Student-Athlete Reinstatement. As part of this
appeal, we provided a signed-written affidavit from Mr. Tim Dwight that
states:
To: Whom is may concern
The purpose of this statement is to clarify my thought process
and actions during my time as a NCAA track athlete and
professional football player.
I want to make it clear that I ``knowingly and willfully''
accepted endorsement and appearance monies, which is considered
a normal part of my salary as a professional football player,
even though my intentions were to run track for the Univ. of
Iowa after my first year as a professional athlete.
Being ``well aware'' of the NCAA rules governing amateur
athletes, it was my assumption that I ``could'' accept
endorsement monies as a professional football player but not as
an amateur track athlete. I had based my assumptions on the
NCAA precedent that you can be a professional in one sport, and
an amateur in another.
The NCAA (Sub) Committee on Student-Athlete Reinstatement was
unmoved by this new information and upheld the original subcommittee's
ruling that I am ineligible.
SUMMARY
In summary, the courts have ruled that student athletes are in fact
third party beneficiaries of the contract between the NCAA and the
member institutions. As a result they do in fact have rights in the
NCAA contract. I hope that I have effectively demonstrated from my
experience that the present procedures and bylaws that exist under the
NCAA strongly inhibit the student-athletes ability to receive a fair
and impartial hearing within the NCAA or in the court. Given the fact
that impartiality is a guaranteed right in the 5th and 14th amendment
under due process, I do not believe that student-athletes receive due
process in the present system that the NCAA currently has in place.
ATTACHMENTS \1\
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\1\ Additional materials submitted by Jeremy Bloom were not of
sufficient quality for reproduction but are on file with the
Subcommittee on the Constitution.
Mr. Chabot. Ms. Potuto, you are recognized for 5 minutes.
TESTIMONY OF JO POTUTO, VICE CHAIR,
NCAA COMMITTEE ON INFRACTIONS
Ms. Potuto. Thank you, Mr. Chairman; and thank you Members
of the Subcommittee. I will only highlight a few points here
and otherwise rely on the written testimony that I submitted.
As the Chair indicated, I'm a professor of law at the
University of Nebraska and hold a Chair in constitutional law.
I'm here today in my capacity as the Vice Chair of the Division
I Committee on Infractions.
The NCAA is a private association run by its member
institutions through committees with separate and distinct
functions that administer different NCAA bylaws. Staff from the
member institutions and their conferences sit on these
committees. NCAA staff do not.
Jeremy Bloom describes, although not accurately, the
student-athlete appeals process. That process, the infractions
process and the enforcement process are all three separate and
distinct, with no overlap of function, membership or even of
NCAA administrative staff support. Infractions and student-
athlete reinstatement decisions are appealable to separate
appeals committees, again with no overlap in membership.
The infractions committee decides cases where institutions
are charged with major violations. It does not conduct
investigations. It does not interview witnesses. Its decisions
are based solely on the hearing record. The enforcement staff
as well as the involved institutions, coaches and other
individuals each choose what to include in that hearing record.
The committee is independent and impartial. It has two
former judges--one State, one Federal. It always has had
university professors as members, currently two and as many as
five. Past members include law professors Charles Alan Wright,
a former President of the American Law Institute and author of
a multi-volume treatise on Federal practice; Frank Remmington,
who was a member of the Supreme Court's standing committees for
both civil and criminal procedure; and Jack Friedenthal, co-
author of one of the most widely used civil procedure case
books.
The committee also is savvy about intercollegiate
athletics. Its membership deliberately includes athletics
administrators. They have credibility with the member
institutions because they understand the particular pressures
of college athletics. That same athletics' experience and
background also means they cannot be conned.
The rules, investigative and adjudicative processes are all
there to ensure that student-athletes have fair and equal
opportunities to compete. An even playing field means more than
simply evenhanded and consistent application of rules on the
field. It also includes evenhanded and consistent application
of rules off the field.
As directed by the member institutions, the Committee on
Infractions has two critical jobs, first, to provide parties a
full and fair opportunity to be heard and to treat them the
same way as others charged with major violations; second, to
ensure the broader systemic interests of NCAA member
institutions, to ensure they are advanced. These include timely
and efficient resolution of cases in a manner that safely
applies NCAA legislation.
As all nine members of the current Supreme Court recently
said, the NCAA is not a State actor. Even so, its enforcement,
infractions, and hearing procedures meet due process standards.
In fact, they parallel, if not exceed, those procedures
provided by public institutions.
Certainly, it is important that all NCAA processes,
infractions and student-athlete reinstatement included, both be
fair and seem to be fair. The perception problem is fed in part
by the natural inclination of those who suffer adverse findings
and penalties to justify their conduct sometimes by
misrepresenting what they did, sometimes by misrepresenting the
process itself, sometimes by doing both.
As public officials, the Members of this Subcommittee know
better than I do the potential for media reports to be
inadvertently inaccurate or to create misconceptions by telling
only part of the story. If there are misconceptions about the
enforcement, infraction or student-athlete reinstatement
processes, the remedy lies in better communication about how
these processes work and then perhaps a more discerning and
less uncritical reception of descriptions by interested and
disappointed parties regarding these processes, not by fixing
systems that ain't broke at the risk of breaking them.
Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Ms. Potuto follows:]
Prepared Statement of Josephine (Jo) R. Potuto
I am Josephine (Jo) R. Potuto, the Richard H. Larson Professor of
Law at the University of Nebraska-Lincoln College of Law. I am the vice
chair of the NCAA Division I Committee on Infractions (COI) and in that
capacity I submit this written testimony to the House Judiciary
Committee's Subcommittee on the Constitution. I appreciate the
opportunity provided by the subcommittee to discuss the NCAA
infractions process as adopted by the NCAA member institutions. This
process protects the interests of individuals and institutions charged
with violations by assuring them a full and fair opportunity to be
heard regarding alleged rules violations. At the same time, this
process advances the broader, systemic interests of all NCAA
institutions by providing a timely and efficient resolution of
infractions matters in a manner that treats all institutions equally
regarding the assessment of the severity of violations and the
penalties to be imposed.
The NCAA is a private association comprised of approximately 1000
four-year colleges and universities (329 in Division I) that have
joined together to provide and administer standardized rules governing
the conduct of intercollegiate athletics programs. It is an association
formed, organized, and run by these member institutions. All NCAA
bylaws and rules, including the enforcement process and investigative
procedures, have been adopted by the membership; the administration of
these bylaws and rules (as well as waivers from their application)
ultimately is vested in committees comprised of staff members from
member institutions or their conferences.
NCAA BYLAWS
As adopted by the membership, NCAA bylaws regulate, among other
things, recruiting, academic eligibility, financial aid, awards and
benefits for student-athletes, competition and practice limitations,
and amateurism issues. In the totality of their interrelationship, NCAA
bylaws and regulations advance and preserve the collegiate model of
competitive athletics. They are implemented with the prime objective to
protect and enhance the educational and physical well-being of all
student-athletes and they reflect considered judgment as to how best to
balance a host of competing and legitimate interests, including the
varying interests of different cohorts of student-athletes. NCAA bylaws
and regulations also, and obviously, are intended to assure that any
competitive advantage realized by particular athletics programs, teams,
or student-athletes is achieved through fair play, rules compliance,
ethical conduct, and good sportsmanship, and not by willful violation,
rules avoidance, evasion, or ignorance.
First and foremost among the responsibilities imposed by all member
institutions on each member institution is that of institutional
control of its athletics program to assure rules compliance, academic
integrity, student-athlete well-being, and the promotion of the highest
level of sportsmanship and ethical conduct. Institutional control, as
adopted by the membership, locates the primary responsibility for rules
compliance squarely on each institution and requires each institution
both to self-police and to self-report when potential violations are
uncovered. If we lived in a world where all institutions at all times
had perfect ability and willingness to self-police AND where all
institutions at all times had perfect trust and confidence in the self-
policing of all other institutions AND where self-policing handled
exclusively at the institutional level nonetheless achieved across all
institutions a consistent approach to evaluation of the severity of
violations and the appropriate penalties attendant on any such
violations, THEN there would be need for neither NCAA enforcement staff
nor the Committee on Infractions. In the real world, however, both are
necessary to assure the integrity of the process and consistency of
treatment among and between institutions. In the real and competitive
world of intercollegiate athletics, moreover, both are necessary to
provide a comfort level to each institution that all are being held to
the same standard.
NCAA violations may be major or secondary. They may be committed by
coaches or other institutional staff members or those acting at their
behest, by individuals formally outside an athletics department but
nonetheless sufficiently associated with it to be considered
representatives of the program (boosters), and by prospective or
enrolled student-athletes. The Committee on Infractions hears only
those cases involving potential major violations in which there is
potential institutional culpability. Institutions are responsible for
the conduct of their staff members and for the conduct of student-
athletes and others when such conduct is known, or in the appropriate
exercise of oversight and monitoring should have been known, by the
institution.
SEPARATE COMMITTEES; SEPARATE STAFFS; SEPARATE FUNCTIONS
The enforcement and student-athlete reinstatement processes are
separate, perform different functions, and are handled by different
NCAA committees. The enforcement and student-athlete reinstatement
staffs are separate and comprised of different staff members. The
student-athlete reinstatement staff reports to the vice-president for
membership services, not the vice-president for enforcement. The
membership and role of the COI is separate and distinct both from the
enforcement staff and the enforcement process and the student-athlete
reinstatement staff and from the student-athlete reinstatement process.
STUDENT-ATHLETE REINSTATEMENT PROCESS
If a violation occurs that affects a student-athlete's eligibility,
it is the institution's responsibility to declare the student-athlete
ineligible and, in the event restoration of eligibility is desired, to
seek reinstatement through the NCAA student-athlete reinstatement
process. In only about one percent of the cases is the violation so
serious and the responsibility of the student-athlete so significant
that reinstatement is not warranted. In the other 99 percent of these
cases, a student-athlete's eligibility is fully reinstated or
reinstated with conditions.
On commission of major and certain secondary violations a student-
athlete is ineligible for competition from the time that an institution
discovers the violation until the matter is resolved by the student-
athlete reinstatement process. In cases where restoration of
eligibility is desired, the process typically requires that the
institution file a petition for reinstatement on behalf of the
ineligible student-athlete, setting forth the facts and circumstances
of the violation as determined by the institution. The student-athlete
reinstatement staff has the authority to resolve reinstatement matters
in order to expedite the process, and to entertain waivers. This
authority may be exercised, however, only pursuant to national
guidelines and precedent established by the Student-Athlete
Reinstatement Committee and the 49-member Management Council. This
process also provides a right of appeal to the Student-Athlete
Reinstatement Committee. The Division I Student-Athlete Reinstatement
Committee is composed of five individuals from various Division I
institutions and conference offices.
The student-athlete reinstatement process provides for the
evaluation of information submitted by an NCAA member institution on
behalf of a prospective or enrolled student-athlete who has been
involved in violations of NCAA regulations that affect eligibility. The
institution submitting the reinstatement request is responsible for
determining the facts of the case and what violations have occurred.
Once a case reaches the reinstatement staff, an institution already has
decided that NCAA violations were committed. The objective of the
reinstatement staff review is to assess the degree of responsibility of
the student-athletes and to determine appropriate conditions for
reinstatement of eligibility, if any, pursuant to national standards
established by NCAA member institutions, and the Management Councils
and Student-Athlete Reinstatement Committees of Divisions I, II, and
III. The reinstatement staff has no authority to make a finding of
violations. Its sole authority is to determine if reinstatement is
warranted, and under what conditions.
ENFORCEMENT PROCESS
It is the responsibility of the NCAA enforcement staff to conduct
investigations of potential NCAA violations within the procedural and
investigative parameters set forth by the membership and the COI
(Bylaws 19 and 32) and to present to the COI cases the enforcement
staff has determined to involve commission of major violations for
which institutions are responsible. Specific enforcement staff
responsibilities include collecting and validating information to
determine the possible existence of a violation; classifying violations
as major or secondary; tape recording or otherwise memorializing the
substance of an interview; disclosing the purpose of a campus visit;
permitting representation of counsel at interviews; providing
institutions and individuals alleged to have committed major violations
timely notice of an inquiry that includes a list of particulars
relevant to the violation; providing timely disclosure of information
relevant to an alleged violation; maintaining a custodial file of all
information relevant to an investigation at a location convenient to
institutions, individuals, and their counsels; conducting a pre-hearing
conference independent of the COI to narrow the issues in dispute and
to gain information leading to the possible amendment or withdrawal of
allegations; and to provide an enforcement staff case summary for the
COI hearing that sets forth the allegations, together with the facts
and circumstances relied on to substantiate the allegations.
The enforcement process is cooperative, not adversarial. Although,
obviously and necessarily, preparing an enforcement staff case summary
and presenting a case to the COI entails a staff determination that
there is sufficient information from which to believe that major
violations were committed, nonetheless the enforcement staff is
required to present exculpatory as well as inculpatory information and
to present a balanced rendition that gives full sway to information
indicating that violations either were not committed or cannot be
proved to the evidentiary standard required by the COI. In addition,
the enforcement staff has the general responsibility to assist
institutions and individuals in their efforts to gather information
relevant to alleged violations. Procedural protections include timely,
and periodic, notice of the progress of an investigation; the right to
assistance of counsel; access to all information relevant to a
violation; and a statute of limitations that, with limited and
specified exceptions, requires that any alleged violation presented to
the COI must have been committed within four years before issuance of a
notice that an investigation has been initiated.
COMMITTEE ON INFRACTIONS
A. In General. The hearing procedures adopted by the membership
have produced an infractions process that most resembles a type of
administrative hearing akin to those employed in hearings conducted at
public universities. Self-enforcement and the cooperative principle are
at the heart of the process. The enforcement and hearing processes have
evolved over time in response to concerns raised by the membership and
others that a better and more balanced process could be implemented.
Among the changes have been the addition of public members to the COI,
the creation of an Infractions Appeals Committee, the addition of a
summary disposition process that avoids the costs in time and money
attendant on a full hearing, the adoption of a formal conflict-of-
interest policy for COI members, and the provision of a database of COI
reports.
Other suggested changes have been considered. Among these have been
recommendations that infractions hearings be public and that the
hearing process be turned over to hearing officers. With regard to the
use of hearing officers, the membership adopted bylaws permitting
institutions and others appearing before the COI to request that a
hearing officer, rather than the COI, hear the case. In the ten-plus
years this option was available; only one request ever was made and, in
that instance, came from an individual while the institution in the
matter preferred a full hearing. Ultimately, the hearing officer option
was eliminated, on unanimous votes both of the NCAA Management Council
and of the NCAA Board of Directors. With regard to public hearings, the
NCAA, through its membership, has embraced the philosophical position
that confidentiality is an important component of the process, both in
the particular case and with regard to the overall interests of the
membership. The cooperation of witnesses outside the athletics
enterprise is often critical to building and proving a case. Many are
willing to provide information and to be identified within the process
both to institutions and individuals alleged to have committed
violations but might be far less willing to provide information if
subject to a full public disclosure. Further, the extreme public
interest among media and fans might create difficulties in maintaining
an appropriate hearing atmosphere.
B. Composition and Role. The Division I COI is comprised of eight
members who adjudicate cases and two members who coordinate appeals to
the Infractions Appeals Committee. The regulatory and adjudicative
process by which the COI operates was adopted by the membership and at
any time may be changed by the membership when, if, and how a majority
of institutions believe change is needed. As is clear from the
regulatory and adjudicative process currently in place, the membership
has a concrete and particular conception of the infractions process and
the role to be played by the COI. It has created a hearing body that
(1) is independent of the NCAA enforcement staff; (2) understands and
appreciates the various facets of administering an athletics program;
(3) provides a full and fair opportunity to be heard by member
institutions and staff members alleged to have committed major
violations and provides equal treatment between and among member
institutions and their staffs; (4) is committed to the proper
application of the rules and bylaws adopted by the membership to govern
intercollegiate athletics and the conduct and behaviors of institutions
and their staffs, and (5) is mindful of the interests of the membership
as a whole when adjudicating the facts of a particular infractions
case.
1. Independence. Independence is assured by the status of COI
members, by formal structures of separation, and by the clear
demarcation of COI functions. COI members neither are employed by nor
report to the NCAA national office. They are appointed by the Division
I Management Council on recommendations from the various conferences.
Their professional roles outside the NCAA are ones of high
responsibility, typically embodying high-level administrative
positions. The two public members of the COI, moreover, not only are
not employed by the NCAA but they also are not employed by any member
institution. As such they are independent both of the NCAA and also of
the world of intercollegiate athletics as practiced on the campuses or
in conference offices.
The COI does not investigate alleged major violations. It does not
conduct pre-hearing witness interviews. It does not engage in pre-
hearing fact-finding. It does not participate in pre-hearing
conferences. It neither sees nor reviews correspondence between the
enforcement staff and institutions or other interested parties. It
neither sees nor reviews information surfaced by the enforcement staff,
institution, coaches or staff members alleged to have committed major
violations unless that information is made a formal part of the hearing
record. NCAA staff liaisons to the COI work exclusively with the COI.
They are not members of the enforcement staff. COI deliberations and
case-relevant discussions are confidential within the COI.
2. Experience with the collegiate athletics enterprise. Membership
on the COI, in its totality, reflects a breadth of expertise regarding
aspects of intercollegiate athletics and intercollegiate life in
general--and deliberately so. The current eight committee members who
sit as the adjudicative body, for example, are, or have been, athletics
directors, coaches, student-athletes, and a conference commissioner.
Several handle or have handled compliance matters on campus and prepare
or have prepared waiver requests on behalf of student-athletes. From
the perspective of the institution or individuals appearing before the
COI, this athletics experience assures a sensitive appreciation of the
athletics enterprise and the particular pressures generated by college
athletics. From the perspective of the membership as a whole, this
athletics experience also assures that the COI will be able properly to
evaluate claims that might seem persuasive or compelling to one with
little or no knowledge of the athletics world. The faculty status of
two COI members brings a faculty perspective to the table and a focused
appreciation of the academic mission. With regard to sensitivity to due
process concerns, the COI has as members two former judges
(representing trial and appellate and state and federal court
experience) and three additional lawyers, one of whom dealt with
university administrative hearings in his role as general counsel at
his university.
3. Full and Fair Hearing Opportunity and Equality of Treatment. In
many, if not most, cases heard by the COI, there is substantial
agreement regarding the facts between the institution and the
enforcement staff. Typically the institution and enforcement staff have
engaged in a cooperative effort to uncover a clear picture of the
circumstances surrounding potential violations. Often they participate
at least in part in joint interviews. In these cases, as well as in
cases in which there is substantial disagreement, institutions and
individuals appearing before the COI have notice of the allegations
charged against them and, in the enforcement case summary, a list of
particulars regarding each allegation and the information relied on by
the enforcement staff. At least some of this information will have been
provided by the institutions during the investigation pursuant to the
NCAA cooperative principle, which imposes an affirmative duty on member
institutions to cooperate with the enforcement staff in investigating
potential violations. Institutions and individuals also have ample pre-
hearing opportunity to discuss the allegations with the enforcement
staff; often these discussions lead to the withdrawal or amending of
allegations. Moreover, the only alleged violations that the enforcement
staff may present to the COI are those supported by sufficient
information to warrant a conclusion that a violation has been
committed.
Institutions, coaches, other staff members, and student-athletes
who may be subject to imposition of a penalty have the right to appear,
with counsel, at the COI hearing concerning their institution and to
submit a written response. They also have available to them the
complete file of information developed by the enforcement staff that is
relevant to the case. They are entitled to submit interview transcripts
or tapes, and any other documents they believe relevant to a full
consideration of an alleged violation. Yet another aspect of the
hearing process is that the COI may find a violation proved only if it
is supported by information that is ``credible, persuasive, and of a
kind on which reasonably prudent people rely in the conduct of serious
affairs.'' Not only do NCAA rules mandate the exclusion from COI
consideration of any information provided by a source that is not
identified to the COI, institution, and individuals, subject to a
penalty, but the COI considers with particular care the credibility of
individuals providing information, the internal consistency of that
information, and any corroborative information. In thus exercising its
adjudicative function, the COI frequently does not make findings of
violations. The final aspect of the due process afforded institutions
and individuals is the availability of an appeal to the Infractions
Appeals Committee, both on the merits of any particular finding and on
the penalties imposed.
In sum, then, the procedural protections afforded in the COI
adjudicative process include (a) notice of the allegations; (b) a list
of particulars regarding each allegation that includes the names of
individuals providing information and a summary of the information on
which the allegation is based; (c) an opportunity pre-hearing to
discuss the substance of the allegations and to present information
leading to the enforcement's staff's amendment or withdrawal of
allegations; (d) access to all information relevant to an allegation;
(e) an opportunity, and sufficient time, to provide exculpatory or
explanatory information and a written response to the allegations; (f)
a requirement that information provided to the COI must come from
sources identified to the COI and to the institution and any
individuals appearing before the COI; (g) representation by counsel at
the hearing; (h) a full opportunity at the hearing to present one's
case; (i) an independent fact-finder; (j) fact-finding based only on
that information made part of the hearing record; (k) a finding of
violation requiring a high burden of proof; (l) a written report by the
COI that sets forth the grounds for its decision; and (m) the
opportunity to appeal adverse findings or penalties to the Infractions
Appeals Committee.
4. Proper application of rules and bylaws. Another function
performed by the COI is to provide consistent, uniform, and informed
application of NCAA bylaws and rules. While the NCAA interpretations
process is designed to assure informed and uniform application of
rules, by their nature these interpretations do not cover the world of
potential issues. The student-athlete reinstatement process, as noted
earlier, involves no fact-finding but relies instead on the rendition
of the facts and circumstances as provided by an institution. The COI,
by contrast, is in the unique position to evaluate rules and bylaws in
the context of concrete factual situations. The COI takes seriously its
responsibility to understand the thrust and significance of rules and
bylaws as adopted by the membership and to assure their correct and
fair application to the conduct and behaviors of institutions and their
staffs.
5. Interests of the membership as a whole. There is a natural,
perhaps inevitable, tension between the interests of an institution or
individual involved in a particular infractions case and the interests
of the membership as a whole. What might be the most pleasing
resolution of a matter to an institution facing findings and penalties
might be detrimental to the overall policy considerations and interests
of the membership and, in fact, might be so perceived even by the
particular institution once it is removed from the infractions process.
The COI is ever mindful of the larger intercollegiate context into
which its findings and reports must fit.
C. Practical Considerations. The jurisdictional authority of the
COI runs to member institutions and their staffs. The COI has no
subpoena power or other ability to compel cooperation by those outside
institutions, including even family members of student-athletes or
prospective student-athletes. While decisions by the COI undeniably may
have an impact on individuals who are not institutional staff members--
boosters, for example--the direct authority to compel cooperation and
to impose sanctions is exercised only on member institutions.
Cases within the jurisdiction of the COI are initiated by
information received by the enforcement staff from a number of sources,
including media reports. While often the first information about
potential violations is reported by the involved institution, on
occasion a major case is initiated by information provided by an
individual seeking to remain anonymous. This process is no different
from a confidential informer used in a criminal case or a law firm's
use of a private investigator to follow investigative leads that
ultimately produce information relevant to a court proceeding. In each
case, the confidential source's information serves only as a
directional signal, leading investigators to individuals with
information both concrete and relevant to a charge. It is that
information, and those individuals, on which and on whom the COI relies
in making its findings. The use of confidential source information is a
necessary component of an effective enforcement system. Without such
information, many fewer major infractions cases would be identified and
the commission of many major violations would go undiscovered--to the
detriment of all those institutions and individuals who act with
integrity and in compliance with the rules. In recognition of the
procedural fairness due institutions and individuals, however, NCAA
procedures dictate that information provided by a confidential source
may not be presented to the COI and may not be relied on by the COI in
making its findings.
Although a private actor for purposes of formal imposition of the
due process protections of the 14th amendment, the NCAA in its
infractions process clearly meets and very likely exceeds applicable
14th amendment procedural protections. It is a truism that the process
that is due varies according to context, with the highest end of
procedural protections afforded to defendants in criminal cases. The
test for what process constitutionally is due requires an evaluation of
the substantive value of the interest maintained by the individual
seeking additional procedural protections (in other words, whether
there is a liberty or property interest at stake), an evaluation of the
likelihood that, and the extent to which, provision of the additional
procedural protection will advance or impede the truth-finding function
and reduce or increase the risk of error in the decision-making, and an
evaluation of the fiscal and administrative burdens of providing
additional procedural protection.
Boosters are not subject to NCAA rules or bound by the cooperative
principle. Nor do they have a due process liberty or property interest
in the right to make financial or other contributions to an athletics
program, to travel with athletics teams, to visit locker rooms, to
stand on the sidelines at games, or to do a host of other things
enjoyed by them--even when they conduct themselves appropriately and in
compliance with NCAA rules and bylaws. Certainly, then, boosters have
no due process liberty or property interest in their continued
association with an athletics program when they are determined to have
committed NCAA violations.
Institutions are subject to NCAA rules and are bound by the
cooperative principle. They also are responsible for the actions of
boosters and others associated with their athletics programs when they
know, or in the appropriate exercise of institutional control and
monitoring should have known, of booster rules-violative behavior. In
any case in which the institution believes the booster to not be
culpable, the institution has every interest in representing and
defending the booster's interest before the COI. In these cases,
booster interests will be reflected in the university's response in as
full a rendition as the university chooses to make. In many cases,
however, the institution independently and prior to hearing itself
determines there is booster culpability and disassociates the booster
from its athletics programs. In either case, the booster has no
independent right to appear before the COI just as there is no
independent, and cognizable, due process interest in maintaining his/
her contact with the athletics program. While certainly procedural
protections may extend beyond what is minimally required by due
process, and while a right to appear would seem to promote booster
interests, the impact on the truth-finding function and institutional
and greater public policy considerations must be weighed in the
balance. As to the latter interest, there might well be a detrimental
impact reflected in hearing delays, potential obstructive conduct, and
in the overall efficiency of the process. As to the former interest, it
is doubtful that the truth-finding function will be improved as a
booster has a full opportunity to present his/her case through an
institution in any situation in which the institution supports the
position of the booster. Moreover, big-time boosters are fully apprised
of NCAA rules as they apply to them. There are ample opportunities
provided for instruction, including game day programs, periodic
mailings to boosters, and in-person instructional sessions
conclusion
I have attached to my testimony several documents that amplify and
add depth and context to my remarks. Thank you very much for the
opportunity to submit this testimony and attachments.
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5
ATTACHMENT 6
ATTACHMENT 7
ATTACHMENT 8
ATTACHMENT 9
ATTACHMENT 10
Mr. Chabot. Dr. Ridpath.
TESTIMONY OF B. DAVID RIDPATH, ASSISTANT PROFESSOR, SPORT
ADMINISTRATION, MISSISSIPPI STATE UNIVERSITY
Mr. Ridpath. Thank you, Mr. Chairman.
I'm truly honored to be before this Committee today. As a
parent of young children and a former military officer, very
little intimidates me, but I must admit I'm a little shaky
being here. I found out just late yesterday I needed to get
here from Mississippi to Washington, D.C., and managed to pull
that off with the assistance of Congressman Bachus' office; and
I do appreciate that.
Let me start out by saying, I cannot disagree with Ms.
Potuto more; and I think I'm going to detail that in my
testimony. You will hear differing opinions through written
testimony and what you have heard today on the enforcement and
infractions process and the monopolizing-cartel-like power of
the NCAA and the NCAA national office.
There are facts and opinions on all sides of these issues,
but let me address these issues from the perspective of a
person who has been through two major infractions
investigations and who is a person who once vigorously defended
the very processes that Ms. Potuto just defended. But I'm also
a person who has had my career and reputation ruined by this
patently unconstitutional and unfair process.
This is not a process that truly punishes the rule
breakers. It is a process that can ruin careers and trample
rights all at the same time. It is simply a process that is
unAmerican and threatens the very foundation of higher
education in America.
I represent today many people who have been unfairly
targeted and blamed to protect the true rule breakers. There
are many scapegoats out there just so the tax-free, money-
making enterprise of college sports can keep running with the
facade that somehow the NCAA is actually policing itself. It is
an insider's game, just like the old fox guarding the hen
house, and they are getting away with it.
In brief, I'm a former distinguished military graduate from
Colorado State University, and I served this country honorably
for almost 12 years. I'm a man of principle and integrity. I
left the stability of a distinguished military career to pursue
my dream of working in college athletics. I never had my
integrity, my competency or my abilities questioned until
confronted by this process and the NCAA investigators and
Members of the Committee on Infractions. My treatment and the
treatment of others by the NCAA and the NCAA Committee on
Infractions was unprofessional, caustic, adversarial and
completely out of line without any remedy of fairness, due
process and constitutional protection.
My story is this: I was hired at Marshall University in
1997 as Assistant Athletic Director For Compliance. I was hired
to clean up the compliance program that was in disarray. I did
that, and I did more, and in the process of cleaning up the
mess, I discovered violations that had existed in the athletic
program, which I reported, as per rules, to the MidAmerican
Conference and the NCAA.
The NCAA launched an investigation into our athletic
program. One of the major violations concerned an illegal
employment scheme for football and men's basketball athletes.
The employment program had been going at Marshall University
for almost 7 years prior to my arrival and had been covered up
by various administrators and coaches, who, incidentally, still
work in college athletics throughout.
It was a scheme that I did not know or was told about. It
was a coverup. To make a long story short, I was blamed and
held publicly at fault for these intentional violations
committed by others in the public NCAA infractions report. I
had made an inadvertent, isolated and very minor mistake
regarding athlete employment in a totally unrelated matter.
While I still vehemently disagree with the NCAA's
interpretation of that specific issue, it is what it is, a
minor violation. Unfortunately, the NCAA investigative staff
and the Committee on Infractions bootstrapped this violation,
in collusion with the institution, to scapegoat me and blame me
for violations that I had nothing to do with and had no power
to prevent. Although I did everything required by NCAA rules,
told the truth throughout the investigation, my career and
reputation were in tatters, while those who started the program
maintained the program and covered up the program are still
working in college athletics today.
What is wrong with this picture--and it is not just me.
College athletics is a very seductive business that has forced
good people to do bad things and bad people to do worse things.
There is so much money and power involved, particularly with
highly paid coaches, that many institutions will do whatever
they can to protect what Ms. Potuto so eloquently calls the
``vital interests'' and the Committee on Infractions plays a
role in protecting that vital interest, but it is not fairness
and due process, it is protecting the money-making machine. In
short, don't bite the hand that feeds you. Thus, politically
expendable individuals are often left holding the bag, with
literally no recourse against one of the strongest monopolies
in the world.
Fighting back against this un-American process has been
taxing on my family. I have had to start and create a whole new
professional career for myself. But I reflect back on one
simple piece of advice, ``Do the right thing,'' and now the
right thing is not being done, and I must do whatever I can to
make changes. The NCAA is not omnipotent. They can and do make
mistakes. They do have unfair and archaic practices, and there
are many things that need to be done to right the ship.
I truly believe that the only thing that can correct over
100 years of failed reform and change a process that continues
under a shroud of secrecy, that can destroy lives and careers
with impunity, is Government intervention and that is why I'm
here today.
I thank the Committee for the time, and I thank Congressman
Bachus for having the courage to pursue this important matter.
I urge the Committee to take whatever steps are necessary to
reform this process and protect those with integrity and ensure
their constitutional rights are protected.
I end today with a quote from a politician, former Governor
Frank Keating of Oklahoma. In his resignation from the National
Labor Review Board studying the recent clergy sex abuse crisis,
he said, ``to suppress names of offending clerics, to deny, to
obfuscate and to explain away, that's the model of the criminal
organization, not my church.'' Unfortunately, the NCAA is
operating like this criminal organization specifically in its
enforcement and infractions process which operates in the same
way.
I thank you again for the time today to tell my story and
I'll submit further documentation and statements which I was
not able to do because of the short notice.
Mr. Chabot. Thank you very much, Dr. Ridpath.
[The prepared statement of Mr. Ridpath follows:]
Prepared Statement of B. David Ridpath
Chairman Chabot, Congressman Sensenbrenner, distinguished members,
ladies and gentlemen,
My name is Dr. Bradley David Ridpath, Assistant Professor of Sport
Administration at Mississippi State University. I am also Associate
Director of The Drake Group a national consortium of faculty and higher
education administrators committed to intercollegiate athletic reform.
I am profoundly honored to be before this committee today, as a parent
of young children and as a former US Army Field Artillery officer, very
little intimidates me, but I must admit that being here on Capitol Hill
is a very incredible experience and I do hope that my testimony today
is helpful as this committee addresses this very important matter.
You have heard and will hear differing opinions on the NCAA
Enforcement and Infractions process and the monopolizing cartel like
power of the NCAA and the NCAA national office. There will be facts and
opinions from all sides on these issues, but let me address these
issues from a perspective of a person who has been through two NCAA
investigations and as a person who has had his reputation and career
ruined by patently unfair process that exists now. I cannot disagree
more strongly with Ms. Potuto. This is not a process that truly
punishes the rule breakers. It is a process that can ruin careers and
trample rights all at the same time. It is simply a process that is un-
American and it threatens the very foundation of higher education in
America.
I represent many people who have been unfairly targeted and blamed
to protect the true rule breakers. There are many scapegoats out
there--just so the tax free money making machine of college sport can
keep running with the facade that somehow the NCAA is policing itself.
In reality its primary mission is to protect the billions of dollars at
stake. It is an insider's game, just like the fox guarding the
henhouse--and they are getting away with it.
In brief, I am a former distinguished military graduate from
Colorado State University and served this country for almost 12 years
in the Army and National Guard. I am a man of principle and integrity.
I left the stability of a distinguished military career to pursue a
dream of working in college athletics. I served honorably at three
schools including at Marshall University. I never had my integrity
questioned, my competency questioned, or my abilities questioned until
confronted by this process while at Marshall. My treatment, and the
treatment of others, by NCAA investigators and the NCAA Committee on
Infractions was unprofessional, caustic, adversarial, and completely
out of line with any remnant of fairness, due process and
constitutional protection.
I was hired at Marshall University in 1997 as Assistant Athletic
Director for Compliance and Student Services. I was hired by Marshall
to clean up a rules compliance program in
Disarray. I did that job and more. In the process of cleaning up
the mess, I discovered several minor violations, and two major
violations, which I reported to the Mid American Conference and the
NCAA. The NCAA launched an investigation into our athletic program. One
of the major violations was an illegal employment scheme for football
and men's basketball athletes. This employment program had been going
on at Marshall University for almost seven years prior to my arrival
and had been covered up by various administrators and coaches
throughout. It was a scheme that I did not know or was told about. To
make a very long story short, I was blamed and held publicly at fault
for these intentional violations, by others, in the NCAA Infractions
Report. I had made an inadvertent, isolated, and minor mistake
regarding athlete employment in a totally unrelated matter. While I
still vehemently disagree with the NCAA's interpretation of this issue,
it is what it is, a minor violation. The NCAA investigators and the
Committee bootstrapped this unrelated violation in collusion with the
institution to scapegoat me and blame me for violations I had nothing
to do with. Although I did everything required by NCAA rules and told
the truth throughout the investigation, my career and reputation were
in tatters, while those who actually started the program, maintained
the program, and covered up the program are still working in college
athletics today. What is wrong with this picture? I will tell you.
College athletics is a very seductive business that has forced good
people to do bad things and bad people to do worse things. There is so
much money and power involved, particularly with highly paid coaches,
that most institutions will do whatever they can to protect what they
perceive to be a vital interest--often the Committee on Infractions
plays the same tune. In short, don't bite the hand that feeds you.
Thus, politically expendable individuals are often left held holding
the bag with literally no recourse against one of the strongest
monopolies in the world. Fighting back against this un American process
has been taxing on my family, but I reflect back to simple advice--Do
the Right Thing--and right now the right thing is not being done and I
must do whatever I can to make sure it changes.
The NCAA is not omnipotent. They can and do make mistakes, they do
have unfair and archaic practices, and there are many things that need
to be done to right the ship. I truly believe the only thing that can
correct over 100 years of failed reform, and change a process that
continues under a shroud of secrecy that can destroy lives and careers
with impunity is government intervention--that is why I am here today.
I thank the committee for the time today and I especially thank
Congressman Bachus for having the courage to pursue this important
matter. I urge this committee to take whatever steps necessary to
reform this process to protect those with integrity and insure their
constitutional rights are protected.
I close today with a quote by a politician most of us know--Frank
Keating former governor of Oklahoma. In his resignation from the
national lay review board studying the recent clergy sex abuse crisis
he said, ``to suppress names of offending clerics, to deny, to
obfuscate, and to explain away--that is a model of a criminal
organization, not my church. Unfortunately the NCAA, specifically in
its enforcement and infractions process operates in the same way.
Thank you for the time today to tell my story
Thank you
Mr. Chabot. The Members of the panel will now have 5
minutes each to ask questions, and I'll begin--I recognize
myself for 5 minutes.
In your written testimony, you state that you were given 10
minutes to put forth your side of the story to the NCAA's
committee on student-athlete reinstatement. Was this your first
opportunity to speak directly to the NCAA? And, if so, do you
feel you would have benefited from an opportunity to personally
state your reasons for reinstatement earlier in the process?
And did you attempt to speak to the NCAA on your own? And, if
so, what was the outcome of that?
Mr. Bloom. That was my first opportunity. And back in 2002
after the Olympics, when I started this process and wanted to
help the NCAA understand a different breed of two sport
athletes, I requested to have a meeting with them, speak with
them. I was denied the right to meet with Mr. Brand, the
President, or any of the members, to speak with them directly.
I had to allow the University of Colorado to represent me in my
dispute with them.
I believe this situation would have never gone to the
court, would have never taken this long if I had the
opportunity to a public hearing with the NCAA members, with an
impartial governing body making the decision.
Mr. Chabot. Ms. Potuto, would you please share with us your
views on the Lee committee recommendations and whether the
NCAA's membership has gone far enough in adopting those
recommendations.
Ms. Potuto. Yes, Mr. Chairman. The Lee Commission had a
number of recommendations, most of which were adopted by the
NCAA member institutions. In fact, the particular proposal for
an independent hearing officer was also adopted by the member
institutions.
Having said that, in the several years in which that
particular option was available to member institutions and
individuals, it was only requested once by an individual and,
in that instance, the institution opposed the use of a hearing
officer.
As I said in my opening remarks, it is critical to the
process to have people adjudicating cases who know what happens
behind the scenes, can understand a proposed penalty that, in
fact, isn't a penalty, can appreciate and give credibility
because they have been there. It is not a situation in which it
is a body where no one has walked a mile in the shoes of the
people who appeared before it.
Mr. Chabot. Dr. Ridpath, taking into consideration the
testimony that you gave us just a few moments ago, what
suggestions would you recommend for changing the process to
make it fair, both to institutions but especially the student-
athletes and the coaches and everybody involved?
Mr. Ridpath. There are several. I recently wrote a letter
to the editor to the NCAA News suggesting some things that
needed improvement.
One is one that has been discussed today, and that is
opening up the infractions and hearings process to the public,
making those hearing transcripts public, letting the media
participate in that. Do not do something behind closed doors.
It is the shroud of secrecy that makes it appear like something
wrong is going on.
I also feel the Committee on Infractions, although Ms.
Potuto has stated that she feels it's a fair and impartial
jury, that is not the case. There are athletic directors on
that committee. There are faculty athletic reps. They get perks
for being part of that committee and know several of the people
that they sometimes are even investigating or adjudicating. And
these individuals, they have used this bully pulpit to settle
old scores and/or cast chips in.
I state my number two, after public hearing, is an
independent Committee on Infractions, not anybody from member
institutions. I respect the fact that they have people like
Frederick Lacey on the committee, but that does not take away
the conflict of interest.
The other thing is everybody who is involved in an NCAA
investigation--I use my situation as a clear example--need due
process and their constitutional rights protected, that if an
institution makes someone a corrective action for some
woebegone reason, that the NCAA needs to know, if they are as
experienced as Ms. Potuto is claiming--I do dispute that--to
know what really goes on behind closed doors and know that they
are scapegoating the lowest common denominator, they do not
have to accept that as a corrective action. The fact that they
do, they are as complicit in, really, the false policies of
this committee.
Those are three initial ones that I can think of, Mr.
Chairman.
Mr. Chabot. Thank you very much, and my time has expired.
Is the gentleman from New York here?
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
I had an inquiry about a scheduling for preseason games.
Did the NCAA make a decision on preseason games especially
affecting Hispanic universities?
Ms. Potuto. Congressman, the NCAA national office could
answer that question. The Committee on Infractions doesn't deal
with that, and anything I'd say would be from what I would get
from the public record also. So I think--there are people here
from the NCAA that could address that for you now or after the
hearing.
Mr. Scott. I guess the problem with this whole subject is,
if there is a disagreement, who gets to make the final
decision? And we have heard Mr. Ridpath refer to it as a
cartel. A lot of the Little League and all kinds of leagues
have a commissioner who has final authority on everything, and
his decision is final, and that's it, and everybody has agreed
to that process. Should schools, Mr. Ridpath, be able to agree
to be bound by the NCAA, even if it is a cartel?
Mr. Ridpath. It's the only game in town right now. It would
be tough to go elsewhere, although I do think that needs to be
studied.
You talk, Mr. Scott, about who is the final decisionmaker.
You mentioned the term commissioner. I do often sometimes
chuckle at that even in professional leagues where
commissioners actually work for the owners.
I had a very distinguished athletic director tell me about
the current president of the NCAA, Dr. Myles Brand, saying very
clearly to me, and he said to me, ``Dave, he works for us.''
Now while he might be trying to do some good things, the bottom
line is he works for the constituency that wants to make the
money, and that's where the conflict arises.
Mr. Scott. Who should be--if it's not the NCAA as the final
arbiter, who should be able to have the final decision?
Mr. Ridpath. I truly believe it is time for faculty to take
charge of their own institutions.
I'm associate director of a national consortium of faculty
and staff for intercollegiate athletic reform collegiate called
the Drake Group. And I do believe once faculty take control and
enforce academic standards on their campuses, it will almost
eliminate the need to have an NCAA governing body because those
standards will be enforced by tenured faculty at their
institutions, and many of the problems we have today will
evaporate.
Mr. Scott. You asked us to do the right thing. And maybe
Harry Truman said, doing the right thing is easy. Figuring out
what the right thing is is the hard part. What is the right
thing for Congress to do?
Mr. Ridpath. What I would like Congress to do and
specifically--there are many other things, and I know I'm off
on a little tangential area here talking about athletic reform.
Specifically, on the NCAA infractions and enforcement process,
break down the shroud of secrecy, bring true independent
oversight to that committee and guarantee fairness and due
process for all.
Mr. Scott. And exactly how do we--do we pass a statute?
What statute would we pass to require the NCAA to adopt
specific rules and regulations? And how are we assured that
they actually follow them?
Mr. Ridpath. To be totally--not quite sure I can answer
that question, sir, in that I'm not quite sure what Congress
can do, and that's why I'm here today, to look at different
proposals. I don't know what type of law can be enacted or what
type of oversight can be done on an independent organization,
but I do think on a voluntary organization, quote, unquote, the
Congress needs to look at and explore situations and potential
statutes and legislation that can actually give a check and
balance to a process that right now has absolute power and has
no check and balance in place.
Mr. Scott. Ms. Potuto, you have an anti-trust exemption, is
that right?
Ms. Potuto. There is no anti-trust exemption.
Mr. Scott. The NCAA doesn't have an exemption under the
anti-trust laws?
Ms. Potuto. I don't believe so.
Mr. Scott. No further questions.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. I point out, since the Chair has identified me as
the gentleman from Iowa, my focus does come on the Tim Dwight
case; and I'd ask one short question of Mr. Bloom. In your
written testimony, to your knowledge at least, there is not a
distinction between the Tim Dwight case and your case. And
since those decisions came down exactly opposite, could you
inform this Committee as to why you believe those decisions
were opposite to one another?
Mr. Bloom. I have no idea, and no one holds them
responsible to explain.
Tim Dwight was a junior at Iowa. He went pro in football,
signed endorsement deals his junior season, filed for
reinstatement his senior year to return to Iowa to run amateur
track. The NCAA allowed him to do so and stated that his
football ability was the reason for those endorsements.
I'm a professional skier on the Olympic level. I must have
endorsements to travel the country. I did the same thing--the
University of Colorado filed for the identical reinstatement
request as the University of Iowa did. I was denied; he was
allowed. I have no explanation. They didn't talk to me. I have
no paperwork, nothing.
Mr. King. Thank you, Mr. Bloom.
I yield the balance of my time to the gentleman from
Alabama, Mr. Bachus.
Mr. Bachus. Professor Potuto, you--in your statement, you
stress timely and efficient resolution as one reason for not--I
think you have in the past--for not having open hearings or
public hearings. Is that one of the considerations?
Ms. Potuto. Yes.
Mr. Bachus. Now I notice this instance on the cost of it,
not having public hearings and not having people allowed to
confront the witnesses against them and that thing. You took
the same tact I think in opposing Title IX, the continuation of
Title IX as it related to women's participation in athletics,
is that correct?
Ms. Potuto. Congressman, I'm not sure I understand what the
reference is.
Mr. Bachus. Well, I'm reading an article, ``Cost of Title
IX Now Outweigh Benefits,'' by Josephine Potuto.
Ms. Potuto. Yes.
Mr. Bachus. You say, the costs of implementation of Title
IX are heavy and outweigh the benefits they have produced.
Ms. Potuto. I did say that, but I wasn't referring to
economic costs, Congressman. I was referring to the impact on
male student-athletes who are interested in competing even
without scholarship.
Mr. Bachus. It said costs, and I wonder what that meant. I
appreciate that. But you are opposed to the continuation even
though you realize they brought about a sea change in respect
to women's opportunities----
Ms. Potuto. I'm not opposed to the continuation of Title
IX, Congressman. I support a relook and adjustment to reflect
the equities and interests of both genders.
Mr. Bachus. You have changed--at this time, you are not for
the continuation?
Ms. Potuto. I have never said in any written or public
statement that I'm not for the continuation of Title IX.
Mr. Bachus. In your statement, when you talk about the
reason for not having public hearings, you mention the reason
not to have public hearings on page 8: ``Extreme public
interest among media and fans might create difficulties in
maintaining an appropriate hearing atmosphere.''
Ms. Potuto. That's right.
Mr. Bachus. One reason not to have open public hearings is
extreme public interest?
Ms. Potuto. It is. It's not the only reason, probably not
the dominant reason, but it is certainly one reason.
Mr. Bachus. One reason not to have an open hearing is the
public's interest in the hearing?
Ms. Potuto. The public's extreme interest in a hearing that
can not only affect the atmosphere of the hearing but may well
have an impact on those individuals who are not associated with
institutions who come forward with probative information and
then are thrust in a media circus and held up to scorn and
pressure in their own home communities.
Mr. Bachus. You are aware--you teach constitutional law and
are aware of the number of cases and philosophy that public
awareness, public interest should be encouraged and that
actually it has a cleansing--sunshine laws effect on hearings?
Ms. Potuto. Yes. And I'm also aware public institutions,
when they are looking at disciplinary actions against faculty,
dismissals, promotions in tenured positions----
Mr. Bachus. Well, we're not talking about that here.
Let's say an athlete, and the athlete wanted to appear
before the committee, wasn't even allowed, but had he been,
these are private hearings? What if the athlete or the coach
under investigation says, ``I want a public hearing''?
Ms. Potuto. First, if we are talking about the Committee on
Infractions, there may be several different individuals in
addition to the institution that all have varying interests as
to what they want. Mr. Ridpath talks about an impact on his
reputation. I do not see that a public hearing would alleviate
that impact. If we are talking about a student-athlete, I'm not
in the best position to describe the process as it affects
Jeremy Bloom. We have here a member of the student-athlete
reinstatement staff that dealt with it that can give particular
information and I think challenge the information that Mr.
Bloom describes in terms of the processes available to him and
his opportunity to participate fully and at several stages in
the process and, I might add, before several committees.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Jenkins, is recognized
for 5 minutes.
Mr. Jenkins. Professor, I have a poor copy of the judge's
ruling in the District Court of Colorado, and it appears to be
incomplete. But what was the basis of the judge's ruling in
that case? And why was Mr. Bloom denied?
Ms. Potuto. That is a student-athlete reinstatement issue.
I can't tell you that I have recently read that particular
opinion so I can share with you the particulars. But, having
said that, the judge, as I recall that opinion, upheld the
NCAA's opportunity to self police and to administer its
programs as a private institution. It granted Jeremy a status
before the court in order to reach the merits and then found
that there were no substantive, procedural issues and that
fundamental fairness was provided.
Mr. Jenkins. Have the courts across the land ever in any
cases found that the student-athlete had rights and they have
proceeded to enforce those rights?
Ms. Potuto. Not that I'm aware of. As you well know, Mr.
Congressman, in order to reach due process issues as a legal
constitutional principle, the individual challenging has to
have a substantive property or liberty interest. The
opportunity to play intercollegiate athletics does not rise to
that level.
In Mr. Bloom's written statements, he talks about the
deprivation he is suffering because the college athletics are a
minor league for the pros. Well, I would dispute whether any
intercollegiate program sees itself as simply or even partly
training athletes to be professionals, although that may well
be a side effect of playing intercollegiate athletics.
Mr. Jenkins. This may be a question that may be
appropriately addressed to Mr. Bloom. But from Mr. Bloom's
testimony, it states on the second page, in January of 2004, I
announced that I was beginning to--it says, except, e-x-c-e-p-
t. I assume that means to accept endorsements and planned to
play football for the University of Colorado. And maybe Mr.
Bloom--Mr. Bloom, did you make that decision on your own, with
full knowledge of what the rules were?
Mr. Bloom. Yes, I did. In 2004, I spent two seasons
foregoing any type of money coming in from companies; and the
NCAA does allow me to receive prize money, which if you did win
every competition in a year you are not going to be able to----
Mr. Jenkins. You set out to be rebellious and a pioneer and
to challenge this rule that you knew very well that was very
clear, is that correct?
Mr. Bloom. I don't believe I set out as a pioneer. I set
out as an athlete who has dreamed every day since I was 5 years
old of winning a gold medal in skiing. And when my career was
put in jeopardy because of the restrictions placed by the NCAA,
I was put in no other positions to accept endorsements and keep
my ski career alive.
Mr. Jenkins. If you had made the decision not to accept
endorsements, you would not be here today, and there would be
no difficulty with respect to your future for you?
Mr. Bloom. I would not be here today. I would be with the
University of Colorado football team, and I would be retiring
from the sport of freestyle skiing.
Mr. Jenkins. Dr. Ridpath, I was unclear after Mr. Bachus'
questions about--you asked us clearly to intervene and you
outlined, after Mr. Scott's questions, some of the things you
would want us to do. Now, you know, you are kind of bucking the
trend, too. Most people come up here to the Hill and they ask
the Congress to keep our nose out of their business. And are
you sure now that you want us to intervene and to do the things
that you would ask of us to do now and get into this?
Mr. Ridpath. I'm absolutely convinced, and it is not just
me, but it's the Drake Group, of which I'm a member of the
coalition. Several outside groups that have reviewed
intercollegiate athletic policies and procedures, we are at the
level right now that Government intervention is the only way to
stop this train.
Mr. Jenkins. What about your suggestion that it is time for
the schools themselves to take control of this?
Mr. Chabot. Gentleman's time has expired.
Mr. Ridpath. I wanted to say the only people that have the
power to enforce true academic standards, true standards that
enforce real college students, students like Jeremy Bloom are
the faculty--and right now the faculty are completely out of
the process. The only faculty that are involved are ones who
have a vested interest in athletics.
Throwing sunshine in the process, to respond directly to
Ms. Potuto, would have absolutely ameliorated my process
because it would have exposed how the committee acted. They are
unprofessional, caustic, and have an adversarial attitude and
how I was completely railroaded, I don't think they would have
acted that way if it was a public hearing.
[10:35 a.m.]
Mr. Chabot. The gentleman's time has expired.
The gentleman from Alabama.
Mr. Jenkins. Mr. Chairman, I believe the lady would like to
respond to that. Would it be all right if she takes the time
to----
Mr. Chabot. I will give the gentlemen an additional minute
and let the gentlelady----
Ms. Potuto. Thank you. And I would also like to add and
emphasize that with regard to Mr. Bloom's particular situation,
there is a member from the NCAA staff that is fully prepared to
make that record clear and to correct several misstatements
from Mr. Bloom.
But, to get to Mr. Ridpath, the Committee hearing before
Mr. Ridpath had no allegations against him. In fact, he was
named in an allegation that the enforcement staff dropped
before the hearing. He was not named in the public report.
There was no finding in the case made against him.
He was reassigned by his employer to another responsibility
in the university before the infractions report ever issued. So
that--and I would direct the Committee's attention to that
report if anybody thinks that Mr. Ridpath was unfairly
characterized with regard to his compliance responsibilities. I
stand by that report, and I would be delighted if you read that
report.
Mr. Chabot. We are not going to get sidetracked on this
particular case here. So the gentleman from Alabama is
recognized. If he wants to delve into that, he is certainly
welcome to do that on his 5 minutes.
Mr. Bachus. Professor, I am sort of struck by your
definition of--that participation in college athletics doesn't
rise--that activity doesn't rise to the level that ought to be
protected by the constitutional rights of due process.
Ms. Potuto. It's not my reading of that. It's, I think, the
reading of all, or virtually all, courts that have looked at
it. And I might add that the fact that it doesn't rise to a
constitutionally protected interest, the fact that nine members
of the current Supreme Court says the NCAA is not a state actor
and doesn't need procedural due process does not mean that we
don't provide it.
There are a number--I heard--Mr. Congressman, I heard you
before say persons who are alleged to have violated have no
right to confront their witnesses. Anybody who appears at that
hearing has the right, and I can cite you the bylaw provision,
to ask questions of any individual or party at that hearing.
Mr. Bachus. So anyone charged with an offense has the right
to appear at the hearing and cross-examine all of the
witnesses?
Ms. Potuto. I don't know, cross-examining might not be the
correct term for it, but certainly the right to inquire of
anyone else who appears. And, yes----
Mr. Bachus. To talk--to question the witness?
Ms. Potuto. Of course. And anybody----
Mr. Bachus. Well, all right. Well, I was under the----
Ms. Potuto.--with a violation clearly has the right to
appear before the----
Mr. Bachus. I was under the misunderstanding that you
didn't allow people to confront the witnesses.
Ms. Potuto. We do. And I can give you the bylaw provisions.
Mr. Bachus. Let me say this. You have talked about the
Supreme Court decision. Now, the Supreme Court decision said
you are not a state actor. It certainly didn't give you a
license to disregard peoples' constitutional rights, to
mistreat people, to abuse people.
And, in fact--and also it did not say that the
participation in college athletics was not something that was
not a constitutional right. In fact, I will give you several
cites that actually say that property--you know, guarantee of
life, liberty and property includes the right of travel, the
right of enjoyment of occupation, the right to practice a
profession, the right to raise a family, a right to----
Ms. Potuto. But not the right to play an intercollegiate
sport supported by scholarship at a university.
Mr. Bachus. Is that right?
Ms. Potuto. Congressman, that doesn't mean that the NCAA or
the member institutions would not be vigorous in providing
procedural rights. I teach constitutional law----
Mr. Bachus. In fact, I thought the NCAA was formed in 1905
to protect and promote the interests of college athletics----
Ms. Potuto. Precisely.
Mr. Bachus. --and to encourage participation in it, not to
wall it off.
Ms. Potuto. Precisely. And I teach constitutional law. I am
certainly a fan of intercollegiate athletics, both men and
women, both revenue and nonrevenue. But I value my professional
interests in the Constitution and in civil liberties generally
and my integrity as an individual much more than the
opportunity to sit at a Nebraska volleyball game or to watch
swimmers or to watch a Nebraska football game.
Mr. Bachus. Now, let me ask you this: Do you agree with
Justice Marshall when she says, just as in criminal cases, an
impartial decision-maker is essential to the rights in a civil
proceeding. This neutrality helps to guarantee that life,
liberty, and property will not be taken on the basis of an
erroneous or distorted concept of the fact of the law. At the
same time, it preserves both the appearance and reality of
fairness by ensuring that no person will be deprived of his
interest in the absence of proceeding in which he may present
his case with the assurance that the arbiter is not predisposed
or influenced against him.
Now, the finders of fact are all under the regulation and
the power of the NCAA, which is the body bringing that action
against him, right?
Ms. Potuto. Well, but the NCAA doesn't pay my salary. In
fact, when I go to an infractions hearing, I go through major
grief because of where Lincoln, Nebraska, is located.
Mr. Bachus. You are not representing to this Congress--in
fact, the Lee Commission recommended an independent arbiter of
the facts, and the NCAA has rejected that.
Ms. Potuto. That is not quite accurate.
Mr. Bachus. But you are not representing to us that you all
go out and get independent hearing officers, independent
arbiters of the fact, are you?
Ms. Potuto. No. And what I would say is due process
requires a balancing of several interests. Of course, the
interests of the individual who is subject to a penalty is of
primary interest, but so are the interests in efficiency and
fairness, uniformity of treatment.
Mr. Bachus. Cost. In other words, efficiency, cost?
Ms. Potuto. Certainly we can have a different system for
intercollegiate athletics that balanced those rights more, but
at the cost of other interests. And we all know that the law of
unforeseen consequences sits out there as a looming presence
when we start making substantial changes to a process.
Professor Roberts, in his written testimony----
Mr. Bachus. Let me close by saying that I appreciate that,
but I would hope the NCAA would look at who generates the
revenue. It is the student athletes.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized
for 5 minutes. It is my understanding that we are going to have
votes on the floor relatively soon, so I want us to keep it
moving along.
Mr. Hostettler. I thank the Chairman.
Dr. Ridpath, I have one question about your--following on
Mr. Jenkins' line of questioning with regard to a new mode of
regulating college athletics, and that is turning this--the
situation over to the school faculty. How would that work?
The reason I ask is because that would be a voluntary
environment. I assume that colleges would voluntarily enter
into a new covenant, new compact, to regulate themselves. But
they would do it--as opposed to the regime now--they would do
it through school faculty.
How would school faculty not bring into the situation a
similar bias that is claimed now with regard to the NCAA?
Mr. Ridpath. Thank you, Mr. Hostettler. I would direct you
to the Website www.thegreatgroup.org that details--and I will
submit this afterward--but details our seven-point plan to
solving the majority of the ills that confront college
athletics today with the faculty as the driving force.
It would be incumbent upon individual faculty senates to
adopt these proposals. These proposals would ensure that
college students are playing college sports. This would ensure
that college students--that college athletes are treated as
college students. This would ensure that there is no multi-
million-dollar academic eligibility mill to keep not just kids
who might be academically unprepared to go to college. I think
somebody who wants to go to college is the key, but I can
strongly disagree with Ms. Potuto. There are several kids, many
kids, hundreds of kids, who come to college to go pro, and that
is the only avenue right now they have to go pro.
Enforcing the great group standards will finally break down
the dirty little secret that the NFL and the NBA and the NCAA
have right now of forming minor leagues, giving these other
kids who have no desire to go to college another place to go.
Then, therefore, you have college students who are interested
in going to college playing college sports.
Again, I would direct you to the Website and our seven-
point plan, but I do believe that it is foolproof.
Mr. Hostettler. For the record today, and this may be
unfair as an example, but are you saying that Colorado
University professors, faculty, would determine, for example,
if Jeremy Bloom could play college football at Colorado
University?
Mr. Ridpath. Absolutely. Eligibility decisions at an
institution should be the decision of the institution that fits
the academic profile. There is no reason, absolutely no logical
reason, that Jeremy Bloom was not suited up for the Washington
State game last week.
Mr. Hostettler. And I am just wondering, do you think that
that--I mean, if a university will determine its own
eligibility requirements, because that is what you are saying,
essentially get rid of the NCAA rules as they are now and say
if a particular college wants a particular athlete to play,
then that college would determine if that athlete could play
and defend a national championship or whatever?
Mr. Ridpath. Certainly we advocate, of course, a 2.0 grade
point average and meeting admission standards as the academic
profile of the incoming class, not bringing someone in who has
no interest in playing--interest in going to school, coming in
with a 12 ACT score and basically warehoused for a year.
Mr. Hostettler. If that were the qualifications of the
university, that would be what they would do?
Mr. Ridpath. If that was the qualification of the
university. But I don't know too many that do that.
Mr. Hostettler. Not today?
Mr. Ridpath. There are rare exceptions, but they do for
athletes, yes.
Mr. Hostettler. And secondly, Dr. Potuto, if I could ask a
question with regard to the situation between Tim Dwight and
Jeremy Bloom. And all I am concerned about is the substantive
difference, because, if I understand it right, with regard to
NCAA rules, an amateur--an athlete can be amateur status in one
sport and be a professional in another sport.
And could you just give me the substantive differences? I
am not concerned about what you think about his testimony today
or anything like that. I just want to know the substantive
differences between Tim Dwight being a professional football
and an amateur track athlete and Jeremy Bloom being a
professional skier and an amateur football player. What is the
difference?
Ms. Potuto. Congressman, I certainly could do it, but I
think Ms. Strawley is in a better position to respond.
Mr. Hostettler. That would be fine. And, Ms. Strawley, your
name for the record as well as were you also involved in the
Tim Dwight case?
Ms. Strawley. Certainly. My name is Jennifer Strawley, and
I am the director of membership services and student athlete
reinstatement.
I was not actually involved in the Tim Dwight case in 1999.
However, the differences between the cases are, in Tim's
situation he asked forgiveness for what was reported as an
unintentional violation of NCAA rules. In Jeremy's case, he
went through, asked for interpretation of the rules, sought
waivers on behalf of our rules through two separate committees,
and then, under his own admission, knowingly committed willful
violations of NCAA rules. Jeremy has referenced in his
statement that----
Mr. Hostettler. Let me--my time has run out. So I asked for
substantive differences between the two. You have given me
procedural differences with regard to asking forgiveness as
opposed to asking permission. But what are the subjective
differences, if the--if the Chairman will----
Mr. Chabot. And the gentleman's time has expired. But if
you can respond to the question.
Ms. Strawley. The substantive difference is a willful
violation of NCAA rules, and a knowing commitment of a
violation of NCAA rules, when, in fact, he knew it was against
the rules to engage in that activity.
Mr. Hostettler. I thank the Chairman.
Mr. Chabot. Thank you.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. One of the things I love about college
athletics is the passion and the intensity--I specifically love
Big 10 football and SEC football. I am from Florida. This is
the first time that the ACC--right, my friend, Congressman
Forbes wants me to remind how intense that competition is.
First time I am aware of it spilling over into the United
States Judiciary Committee, though.
I guess I start with the initial bias that I absolutely
believe that there are unfair decisions probably made by the
NCAA from time to time, just like the United States Supreme
Court made a horrible decision in the Dred Scott case and has
made other decisions that I think are horrible and offensive. I
think any judicial body is going to be imperfect, but the
question is whether or not Congress ought to act.
Another bias I have is that I doubt there is any situation
that Congress can't make worse if it is not careful. And one of
the things I would like to do is put pressure on the NCAA to
find ways to be more responsive if there are serious problems
with the way that it enforces its rules.
But that is sort of where my bias is. I am not here to
defend individual decisions that may have been very much wrong.
One of the things that I would like to ask, you know, Dr.
Ridpath. You say that the NCAA is a cartel and a monopoly, and
obviously they have had a great deal of power. If I want to
play college athletics, as a practical matter, on a very
competitive high level, I don't have any choice but to play by
the NCAA rules, like it or not.
So I do agree with your contention that they have an
awesome amount of power. But there are other options for me. If
I happen to be a very skilled hockey player, hockey players get
drafted at 16, 17, 18 years old. The same thing with baseball
players. A talented football player, 99 times out of 100, maybe
more, goes through the college programs first. But that may be
a little bit of an exception. But in basketball we have got
people from the time that Mr. Dawkins was drafted at what, 17,
18 years out of high school.
So this is not the only outlet for a talented athlete like
Mr. Bloom himself who is actually demonstrably skilled in more
than one sport. If he didn't like the NCAA rules, he clearly
had options.
And I would ask you whether this is really a monopoly or
cartel that keeps people out of a pursuit that they want to
pursue, but more importantly livelihood, which would be a
problem, in my view.
Mr. Ridpath. I would say on the surface what you are saying
seems very logical. But, again, facts are stubborn things. Yes,
hockey players can go pro at a very young age. Baseball players
can. Other sports can. They don't generate the revenue that
football and men's basketball does.
The NCAA and NFL are in collusion to make sure that kids
cannot participate in the NFL until 3 years after they graduate
from high school, and the NBA is going to try to pursue that
same rule. Why? The NCAA wants to keep the best players and
generate that revenue which is their main, vital interest,
generate the revenue to pay those salaries.
Mr. Feeney. Thank you. And now you have, in my view,
implemented--or you have implicated the potential for an
individual constitutional right, denying somebody the right to
make a living is a very different question than what we are
doing here.
Ms. Potuto, I would like to ask you about whether or not--
because one of the issues is whether these hearings ought to be
more open. Now, this is a private, voluntary association,
according to U.S. Supreme Court decisions. I think most of us
are biased in favor of openness. I would like to be a voyeur at
a lot of key decisions that are made.
Does the Buckley amendment have an implications that would
prohibit, at times, when students are involved, publicizing
proceedings?
Ms. Potuto. There may well very be privacy interests both
in State and Federal law. The Buckley amendment, I believe,
goes to records particularly. But there are interests like that
replete in those hearings. I assume one of the prime reasons by
which you have the hearings, in terms of termination and
student athlete disciplinary proceedings, are in private and
held to be confidential.
Mr. Feeney. Well, and you outline some of the practical
problems with--you know, the 14th amendment, as I understand
it, does not apply to private or voluntary organizations. It
does not apply to the NCAA, so long as it is, in fact, a
voluntary, private association, and not a state actor.
One of the practical effects, if a Supreme Court, or if
Congress would mandate this, for example, but if the Supreme
Court says that the 14th amendment does apply to due process,
substantive and procedural concerns, what does it mean for the
practical implications for the recruiting process, academic
eligibility, financial aid, competition and practice
limitations? Are we going to have lawyers on behalf of students
go in and say that it is too hot to practice, for example?
Have you thought through some of the potential concerns
with guaranteeing due process for every decision that an
institution or the NCAA makes?
Ms. Potuto. Of course. And as a professor of a law school
whose salary depends on students going to law school, it is an
attractive proposition to create more processes which need more
lawyers.
In fact, even if the--the Congress were to determine or to
declare that the NCAA is a state actor, none of the processes
that currently are being engaged in I think would have to
change, because I think the NCAA committees exceed what
procedural due process requires.
Now, but to get to the heart of the question, which is,
were additional procedures put in place, would it change the
dimensions, make it more formal? Certainly. You put a lawyer in
the mix, and you always have a more formal hearing. Rules of
evidence are created not to expand the information that can be
provided to a hearing officer, but to restrict the information
that can be provided.
It is a highly competitive world, obviously. My Congressman
can certainly speak to this much more eloquently than I. The
notion that an individual school, run by faculty, and I am a
chaired professor with tenure of my faculty, and can do so in a
way that would make institutions fielding teams that compete
with teams from Nebraska feel confident that we are all
applying the rules in the same way and in the same fashion, it
is one of the more interesting notions I think I have
encountered in a long time.
Recruiting is a highly competitive business. One of the
interests that institutions and individuals have before the
committee is getting it done quickly. If you are subject to an
infractions case at a major university, your ability to recruit
is substantially affected. And I assume that every other
competing coach in the country is going to say to a prospect,
you don't want to go there, you are not going to be able to go
to a bowl. They are not going to field a competitive team
because there are going to be scholarship losses.
That is the world that this is. It is not a world of 200 or
150 autonomously operating institutions and athletics programs
that don't have to deal with each other on a playing field.
Mr. Chabot. The gentleman's time has expired. I was waiting
for you to catch your breath there, but I don't think you
breathed through that statement.
Ms. Potuto. I am from the New York metropolitan area. You
don't breathe.
Mr. Chabot. That explains it.
And we have saved our best for last here. The gentleman
from Virginia Mr. Forbes is recognized for 5 minutes. I believe
he will be the last questioner unless another Member would show
up.
Mr. Forbes. Thank you, Mr. Chairman. And I thank you for
calling this hearing. And thank all of you for being here.
I think, as Congressman Feeney mentioned, we all recognize
that all of you are here with good intentions and good motives.
We appreciate the good work that the NCAA does, and we also
recognize that regardless of good intentions, sometimes
decisions can go awry. The difficulty for us is when those
decisions go awry, they can have enormous impact.
Mr. Bloom has testified that he has perhaps lost a college
career and perhaps more. Mr. Ridpath feels his reputation has
been lost. And one of the questions, Ms. Potuto, that my
colleague from Virginia raised a little bit earlier was in
regard to the Hispanic College Fund football game and that
cancellation. I know you indicated that you couldn't respond to
that, but the problem we have is sometimes perception becomes
reality, and individuals look at something, and it is very,
very arbitrary. We have kind of had a system here we have had
today of having people slide up to the table to testify, which
is fine, because we just want to get the information out. But
you alluded earlier to--I think when you were talking to
Congressman Scott, that perhaps there was another
representative of the NCAA here that had some information
regarding that Hispanic College Fund football game and its
cancellation.
If they are not, or not prepared to testify, I would just
ask if they could submit for the record an explanation so that
we can look at that cancellation, because as we indicated, they
have some harsh consequences. That game, the cancellation of
it, cost about $2 million to that college fund, which helps a
lot of individuals and Virginia Tech.
And if you are prepared to respond to that, fine, but if
not, if you could submit it for the record, that would be----
Ms. Potuto. Yes, sir, Mr. Congressman. As a member
institution that runs the organization, I will say as the
NCAA's employer and boss that they will certainly provide that
information to the Subcommittee.
Mr. Forbes. Thank you.
[The information referred to follows:]
Mr. Forbes. And thank you, Mr. Chairman. That is all the
questions I have.
Mr. Chabot. Thank you very much. I believe that concludes
the questions.
Mr. Bachus. Mr. Chairman, I would ask for a point of
personal privilege.
Mr. Chabot. If the gentleman would state his point.
Mr. Bachus. Mr. Chairman, I have said all along that my
purpose here was to get the NCAA to adopt its own
recommendations of its own committee, and that was the Lee
Committee, and that my interest in these hearings was to
student athletes and due process.
Despite this, the NCAA has made calls. They have told
Members--they have--they have brought up the Auburn and Alabama
cases. They have brought them up. And then they have said that
I was bringing them up. They have said that to--and I wasn't
able to prove that until yesterday when they actually put up on
their Website a description of this hearing today. And most of
that description on the Website is about the Alabama and Auburn
cases, which I consider highly inappropriate.
You know, they are asking assurances that it not be about
that, saying I am bringing it up. When I don't bring it up,
they bring it up and put it on their Website in an attempt to
poison the atmosphere here today.
It is a--and I think it shows a pattern. When we walked in
this room today, two representatives of the NCAA--and would the
gentleman on the second row, I am pointing at--would you
identify yourself for the record?
Mr. Lennon. Kevin Lennon, vice president for membership
services of the NCAA.
Mr. Bachus. Now, he and another gentleman came up to our
witness, and I am sure--I don't know if the witness felt
intimidated--I did--because he said to him, ``Okay, what are
you doing? Are you testifying? Where are you, at Mississippi
State?'' He said, ``yeah.'' Called somebody else over there and
said, ``Now he is with Mississippi State right now.''
And the word ``Mississippi State'' was said four times
within about 1 minute. Mississippi State. Mississippi State. I
don't see the reason that it--that that had to be hit four
times.
It is very hard to get witnesses here. The NCAA made
several calls about Mr. Bloom asking that he not testify. I
tell you, it just proves my case that we need a little openness
and sunshine in these hearings, and that we do not need people
that are being regulated by the NCAA and subject to discipline
by the NCAA making the decisions, because it is a very coercive
atmosphere.
And I simply said, ``Let's have public hearings. Let's have
an independent trier of the fact,'' which is nothing more than
the NCAA actually said in 1992. I have the articles. The head
guy at the NCAA said, we are going to do these things. These
need to be done. They are long overdue. And then they didn't do
them because the pressure backed off.
And I have never advocated, and that--no one have any
innuendo that I advocated that I think Congress ought to come
in and run amateur athletics. I have never said that, and I
have never intimated that. I have simply hoped that the NCAA
will take the steps that they assured the American people
publicly back in 1991 and 1992, the two things they said that
they would do.
And also look at Tom Osborne's testimony here this morning
where he actually almost puts athletes--this body is for the
interest of athletes, but they almost put athletes in an
impossible situation where they pay for the cost of the
scholarship, but they don't pay them their cost of living. And
most of them come from poor families. They don't do that. Why,
I don't know. Maybe it is to save money so there is more money
for the organization and less for the student, but it is the
student that generates this revenue.
And I would say to them, look at Tom Osborne's testimony
today and his suggestion that you ought to compensate for the
cost of attendance rather than the cost of education. It would
clean up the system to a great extent. It would help student
athletes. They can't have part-time jobs, at least at the major
institutions, because of the demands on their time.
But I yield back the balance of my time. But I am very
sorry that the NCAA saw fit, after they got my assurance and
the Chairman's assurance and Members of this Committee, I told
them that I would not bring up Alabama and Auburn, that they
poison the well by including that on their Website. And I think
that was very inappropriate, because this--you know, they said
that they didn't want it to be about those cases. I said it
wasn't going to be about those cases. So they put it on their
Website and go into those cases.
Mr. Chabot. The gentleman has stated his point of
privilege.
To be fair, does Ms. Potuto wish to make any statement? You
don't have to, but if you would like to----
Ms. Potuto. There is nothing I know about this. So I
couldn't--if you want a statement, I am sure there may be
somebody here who does, but I certainly don't.
Mr. Chabot. If you would like to submit something in
writing for the record, you are free to do that.
Ms. Potuto. I think we will. And thank you very much.
Mr. Chabot. I would also note that Congressman Osborne's
wasn't made orally here, but it will be made part of the
record.
Mr. Bachus. Mr. Chairman, I would ask Mr. Bloom, because my
understanding that Mr. Dwight submitted an affidavit that he
knew the rules when he broke them, and he is actually--I think
the witness from the NCAA has intimated that he has given false
testimony. He certainly----
Mr. Chabot. If any of the witnesses want to make
supplementary statements or additions, they can do that in
writing within--it is 3 days or 5 days? Within 5 days.
Mr. Bachus. And I think to correct the record, he should at
least offer information to correct some of that.
Mr. Chabot. So if any witness wants to supplement their
testimony, they can do so within 5 days, and that will be made
a part of the record.
I want to thank all three of the witnesses for their very
sometimes impassioned testimony here this morning. And this is
part of our oversight process. And as we had said in opening
statements, the last time that Congress looked at this was 13
years ago, and I think it is appropriate for us to do this.
Relative to any future action, of course, we can't say with any
certainty where this might go, but we do very much appreciate
the testimony of all of the witnesses here this morning. And if
there is no further business to come before the Committee, we
are adjourned. Thank you.
[Whereupon, at 11:05 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Tom Osborne, a Representative in
Congress from the State of Nebraska
Thank you, Chairman Chabot, Ranking Member Nadler, and Members of
the Committee. I appreciate the opportunity to participate in this
hearing on ``Due Process and the NCAA.'' I am not an expert on the NCAA
or its enforcement process. However, I would like to provide a
prospective from my 36 years of coaching and working with the NCAA.
Although the NCAA rule book is thick, the policies are created by
the member institutions for the member institutions. Enforcement of the
rules is necessary to ensure that no team has an unfair competitive
advantage. As with any policing authority, investigations into alleged
misconduct create a difficult situation for those involved.
Every NCAA institution is very concerned with complying with NCAA
rules. Most schools have a compliance coordinator whose only job is to
keep track of the rules and make sure that every coach knows and
complies with the rules. However, there will always be a small
percentage of those who deliberately break the rules or inadvertently
violate a rule unknowingly. The more high profile a school's athletic
program, the more notoriety it will receive when a major violation
occurs. Fortunately, in recent years, the NCAA has designated
violations as being of primary and secondary importance. This has
enabled schools that have committed minor, inadvertent violations to
receive lesser punishment than those who knowingly commit major
violations.
A common misconception is that the NCAA is a separate authority
that governs college athletics. However, the NCAA is a voluntary
organization composed of member institutions that are involved in its
self-governance. It is certainly appropriate for Congress to conduct
hearings to gain a better understanding of the NCAA. However, I believe
that the NCAA is best situated to understand its governance needs.
A critical part of that governance process is for the NCAA to
continually reevaluate its policies, including the rights of the
student athletes, coaches, and institutions. For example, many involved
in athletics, myself included, believe that athletic scholarships
should compensate for the cost of attendance rather than the cost of
the education. This would help student athletes, who cannot hold part-
time jobs like the majority of their peers, pay for additional costs
such as transportation, health care, clothing, food, and entertainment.
Not unlike Congress, the NCAA strives to create policies that it
believes are in the best interest of those it represents. But
occasionally, these policies must be reviewed and updated to reflect
the current environment and situations that may not have been
considered in the past. I am hopeful that this hearing will foster a
continued dialogue between the NCAA and the member institutions to
ensure the rights of all parties, particularly the student athletes.
Again, thank you, Mr. Chairman, for holding this informative
hearing and I appreciate the opportunity to take part in it.
__________
Prepared Statement of B. David Ridpath
I again, like the other witnesses, want to express my thanks to
Congressman Spencer Bachus, and this subcommittee for the opportunity
to discuss improvements to the NCAA Infractions and Enforcement
Process. By way of background information, I am currently an Assistant
Professor of Sport Administration at The Mississippi State University,
the Associate Director of an Intercollegiate Athletic reform group know
formally as The Drake Group (www.thedrakegroup.org), and a member of
the Academic Requirements sub-committee of the Coalition on
Intercollegiate Athletics. I am uniquely qualified to be a critic of
this process in that I have spent the bulk of my athletic and academic
career researching and analyzing this process, along with other avenues
of academic reform. In addition, I have spent several years involved in
intercollegiate and amateur athletics as an athlete, coach, and
administrator. Most recently I was Assistant Athletic Director for
Compliance and Student Services at Marshall University, prior to that I
worked in several athletic positions at Weber State University, before
Weber State, I was assistant wrestling coach at Ohio University, where
I also received my masters degree in Sports Administration and Facility
Management. I also spent time working in the athletic departments of
Augusta State University (GA) and Colorado State University in several
different capacities. I have degrees from Colorado State University
(BA, 1990), Ohio University (MSA, 1995), and a doctorate from West
Virginia University (Ed.D. 2002). Currently I consider myself a scholar
of intercollegiate athletic reform, as it is my primary research area.
I am often asked to comment and am frequently cited by national media
outlets on sports reform and enforcement and infractions matters. I am
a published author on several sports reform topics. Most importantly, I
am a former vigorous supporter of this process. It was not until I
experienced this patently unfair process up close and personal that my
opinion changed.
While I have a great connection to research of intercollegiate
athletics, NCAA governance, and the enforcement program, my personal
expertise on the NCAA enforcement and infractions process primarily
revolves around being involved in two major infractions cases at two
different universities along with working for over eight years in NCAA
compliance at two NCAA Division I institutions. In addition, I am a
plaintiff in a lawsuit against my former employer, Marshall University,
regarding my treatment during a major NCAA investigation of its
athletic program, and the subsequent naming of me as a corrective
action in response to that investigation. In short, I was blamed for
the major violations and was the only person at the university to lose
my job and career as a result. This specific issue is discussed more in
depth in my oral statement.
My intent today is to not delve into my pending litigation and for
legal reasons I cannot. Like Gary Roberts, I want to emphasize that my
comments orally and in writing are mine and mine alone. They do not
reflect any opinion, one way or the other, of my current or former
employers, The Drake Group, or the Coalition on Intercollegiate
Athletics. Nor are these comments in any way pertinent to my lawsuit in
that I only will address procedural issues, problems, and potential
solutions to the NCAA infractions and enforcement process and my
experiences with that process.
I have included several attachments that I would like attached for
the record as I will refer them in this missive or they were referred
to in my oral testimony. I respectfully submit the following
attachments:
1. My oral statement of September 15, 2004 \1\
---------------------------------------------------------------------------
\1\ This statement is not reprinted here but appears earlier in the
record of this hearing.
2. Letter to Editor, NCAA News, July 5, 2004 entitled
``Intervention Looms Unless Changes Made.'' Written by Dr. B.
---------------------------------------------------------------------------
David Ridpath
3. Link to The Drake Group Website www.thedrakegroup.com
4. Link to Article ``The Faculty Driven Movement to Reform Big
Time College Sports,'' and ``Reclaiming Academic Primacy in
Higher Education,'' By Frank Splitt, McCormick Faculty Fellow,
McCormick School of Engineering and Applied Science,
Northwestern University. http://www.ece.northwestern.edu/
EXTERNAL/Splitt
5. The Marshall University NCAA Public Infractions Report
dated December 21, 2001. This is included for general knowledge
and gives insight into the decision making process of the
Committee on Infractions. Ms. Potuto stated that she felt this
report was accurate, she stands by it, and she would be
delighted if the committee read the report. I too would be
delighted if the committee read the report. Potuto claims that
I am not unfairly characterized in the report. Her comments are
misleading, self-serving, and quite frankly, inaccurate. This
report does not tell the entire story and it is sanitized to
benefit the Committee and the institution involved. My
statements in this report will explain how situations like mine
can and do often happen.
Gary Roberts and Potuto have done an excellent job describing the
purpose and origins of the NCAA, along with a through explanation of
how the enforcement and infractions process works. Thus I will not
reinvent the wheel here. I also have the advantage of already
testifying so I can refer to my opening statement and oral and written
statements by others. My opening statement is clear on my feeling
towards this process, and I have significant disagreements with Ms.
Potuto and Mr. Roberts on the effectiveness and fairness of it. Still
there are many points of agreement and my intent is to not restate my
oral presentation. I will respond to Potuto and Roberts' oral and
written statements with agreement and/or disagreement and propose my
thoughts and solutions.
I. IS THE CURRENT SYSTEM BROKEN?
My first disagreement with both individuals is one that pervades
both of their written statements and to a greater extent, Potuto's oral
statement. The feeling conveyed is this process is either not broken at
all (Potuto) or just slightly broken (Roberts). I believe the system is
broken in that while many on the enforcement staff and Committee on
Infractions strive to do the right thing, they are fighting a losing
battle against the financial and winning realities of college
athletics. The insatiable desire to win, generate revenue, and build
the best faculties directly competes with trying to enforce a litany of
rules and regulations. Roberts correctly states that the ``commercial
market realities dictate the priorities and behavioral incentives for
those operating within this system.'' In layman's terms you must win to
keep your high paying job and if you win you make money and friends. To
that end, the incentive to cheat and get a competitive advantage is
often too large to ignore and cheating is usually the result. Many can
get away with cheating in intercollegiate athletics, but most do get
caught, but only because someone else will turn them in. This is when
the dirty little game and deal making starts. Some institutions, The
Committee on Infractions (COI), and the enforcement staff have mastered
the art of ways to feign discipline and sanctioning while eliminating
the chance to appeal any finding by individuals who may be blamed
erroneously for violations. The often-used method is one of an
institution blaming someone and making them responsible, but since it
is the institution pointing blame, the COI can wash their hands of it,
thus a potentially innocent individual has no standing to appeal this
finding. How convenient!!
Big time college athletics are driven by revenue. Individual
institutions are driven by that revenue and prestige of a successful
men's NCAA Division I basketball team or football team. Communities and
boosters often identify with larger than life football coaches and
major boosters stand at the ready to bankroll the programs in an ever-
increasing athletics arms race for the best coach, facilities, and
athletes. The desire to protect that base, money, and key personnel
push institutions into what I will call is the ``situational
manipulation'' of the infractions and enforcement process. The
Committee on Infractions is as complicit in this sleight of hand lest
they damage their own opportunities at a piece of the money pie since
most of the COI members are from member institutions. Many of these
committee members have been involved in several major infractions cases
themselves. Yet these self-proclaimed master's of intercollegiate
athletic moral authority sit in judgment of others charged with
infractions. As I said in my oral statement, it is the fox guarding the
henhouse. In other words don't bite the hand that feeds you. It simply
doesn't pass the logic test to investigate yourself, conduct a hearing,
and then pass out penalties.
Due to this strange arrangement of trying to protect integrity
while generating revenue and winning, institutions go into the mode of
trying to minimize the violations and protect vital interests. These
vital interests usually are money and highly paid, extremely popular
personnel. Then the blame game starts and it usually starts at the
lowest common denominator. The scapegoating of lesser individuals
begins. Typically, the first person protected and saved in an
infractions investigation will be the head coach or highly paid
administrator. The recent University of Missouri scandal is a typical
case of what usually takes place. At Missouri head men's basketball
coach Quin Snyder went before the public to express remorse for his
actions and promised to do better from now on. Tears were shed,
apologies were given, and the all-important contriteness was on full
display for the almighty enforcement staff and COI that simply does not
tolerate any challenge to its arcane procedures. Behind the scenes an
institution is usually preparing to dismiss assistant coaches and
administrators to insure they are giving the NCAA the desired pound of
flesh to perpetuate the facade that the NCAA is actually policing
itself. I guess somebody has to be the fall guy.
Ms. Potuto claims this does not happen, and that the COI cannot be
conned because of their breadth and depth of knowledge on
intercollegiate athletics. Maybe they are not being conned per se, but
they are letting it happen and I cite the Missouri case as just one of
many examples where high profile coaches have been spared just so
someone politically expendable can get the boot. That is a tired excuse
and it is time that the NCAA stops these false positives because it is
obviously going on. This is simply a way to efficiently finish the case
on the cheap and give the image that the bad guys have been handled
properly while the moneymakers are still going strong. Typically no
fall guy will fight back because they are warned that their career will
be over. They are told to hang in there and someone will hire them
again. So even the fall guys, while disappointed and hurt at the
betrayal, will march in lock step and be a good soldier so they can one
day be back in the seductive game. Thus the secret little game
continues because no one usually fights back. However, I decided to
fight back along with others like Jeremy Bloom, Ronnie Cottrell, and
Ivy Williams to stop this un-American process. While the system is
broken there are things that can be done to fix it. I will detail my
proposals for improvement at the end of this statement.
II. IS IT REALLY A COOPERATIVE AND COLLEGIAL PROCESS
I directly disagree with Roberts's contention that David Price,
current NCAA Vice President for Enforcement, and his investigative
staff are people who ``do not act out of animus, bias, or any personal
vendettas.'' This is a point I made very strongly in my oral statement.
In my direct and indirect experience ``in the trenches'' of college
athletics for almost 20 years, my experience has been exactly the
opposite. In what is supposed to be a cooperative and collegial process
in reality could not be more adversarial and caustic. The enforcement
staff is made up of mostly very inexperienced, low paid investigators
who have an overwhelming amount of work. Many of them are thrust in
hostile situations with the mantra to vigorously and sometimes
viciously put down any type of resistance or defense to charges by the
NCAA. Many times institutions just acquiesce to this pressure and put
up little or no defense, lest they get blackballed by the investigators
or the Committee itself for being uncooperative. The scales are heavily
tipped in the enforcement staffs' favor and it simply is not fair or
constitutional when you are not allowed to provide an effective
defense. There is a better way.
To be fair, it is very difficult to really get to the bottom of
things when you have limited power and the institutions are doing
anything to protect their interests. Still, I believe the mistakes the
enforcement staff and COI make are far more numerous that Potuto and
Roberts state and many times I believe it is intentional. This
intentional behavior is based on previous relationships, power of those
getting investigated, potential vendettas, and quid pro quo. Examples
like this add to the dysfunctional and imperfect nature of the process.
Due to that I do not believe the process is remarkably accurate as
Roberts attests. I only think it is reasonably accurate and I strongly
believe that enforcement and the COI have tremendous incentive to
pursue false or trumped up charges to protect the very aforementioned
interests. Since the Committee is primarily made up of institutional
staff members, the conflict of interest and potential for tampering is
to much too high to ignore and it is ludicrous to think that it has
never happened.
III. RECOMMENDATIONS
Interestingly enough, my recommendations are remarkably similar to
Roberts and what was proposed in the 1991 Lee Report. In is even more
puzzling why these recommendations have not been adopted because they
could dramatically increase the accuracy of this process. I fully agree
with Roberts that the enforcement process is at odds with the reality
of commercialized college sport and the insatiable drive to win games
and generate revenue. I am not certain that government legislation is
absolutely necessary to force a change in enforcement and infractions,
but I do know it will take acute pressure from the government to force
change. At this time I cannot recommend what act or statute needs to be
enacted. I do hope that pressure enough will induce change. The only
time the NCAA has examined its procedures and instituted effective
change was by government intervention. From Teddy Roosevelt to the Lee
Report, it took strong government action to accomplish change.
Consequently, my first recommendation for change is for this sub-
committee to keep the pressure on the NCAA establishment and force
meaningful change that will protect people with integrity who value
education over commercialized athletic success.
I heartily endorse Representative Spencer Bachus' of Alabama
efforts to finally lift the ``shroud of secrecy'' on this patently
unfair and unconstitutional process. The old saying is true, ``If you
cannot regulate yourselves, then the government will.'' Perhaps this is
an area where government intervention absolutely needs to happen, and
probably will, unless changes are made.
In this area, the NCAA has been literally begging for a
congressional inquiry for over a decade. Institutions and affected
individuals are not going to stand for the process as is. Sunshine is
desperately needed on the process and the NCAA is so knee deep in
litigation challenging it that it can no longer go unnoticed. There
have been significant changes regarding NCAA enforcement since Congress
last reviewed it in the 1991 spawning from the Lee Report. Some of the
more notable changes included the creation of the Infractions Appeals
Committee, tape recording interviews, and putting outside of the
association individuals on the Committee on Infractions and the
Infractions Appeals Committee. Even with these developments, there are
still significant changes that must happen to ensure this process
operates with integrity and respect for all individuals and
institutions.
Granted, the enforcement and infractions process is grounded in
administrative law, not constitutional law. However, when dealing with
institutions, reputations, and careers, constitutional due process and
protections must apply or the government must make sure it happens. It
cannot be reduced to blood sport when talking about someone's life and
career. This is unfortunately usually done just to satisfy those who
want a fall guy, while the one's really responsible continue to flaunt
the integrity of higher education by cheating just win games.
It is an issue of fundamental fairness that all are guaranteed as
citizens of America. The specter of NCAA investigations and sanctions
can have far reaching negative effects on individuals and institutions
involved. Therefore, past allegations and proven facts concerning the
enforcement process including potential conflict of interest, use of
secret witnesses, manufacturing evidence, and threatening employees of
member schools during NCAA investigations and hearings are not keeping
with the high values and integrity of intercollegiate athletics. A
process that investigates itself presents on its face a major conflict
of interest especially in the high stakes world of college sports. It
is time to change it to provide fairness for everyone involved,
including the enforcement staff and COI.
I believe that I convey workable solutions to a problem that has
gone on far too long and one that needs to be fixed for college sports
to survive in some semblance of an educational activity. The process as
is does not allow for the real violations or violators to be uncovered.
It is a mere facade to make believe that true enforcement is happening.
However, it can be fixed. There are several modest and simple proposals
that can upgrade this process, provide fundamental fairness, due
process, and ensure that the bad actors that deserve to be punished are
punished. Some of the suggestions for improvement I respectfully submit
to the Constitutional Sub-Committee are:
1. Create an independent, fully trained and compensated, and
engaged COI, and Appeals Committee of athletic, faculty, and
public officials with an independent administrative staff. No
one currently at a member institution should ever serve on this
committee. Conflicts of interest must be monitored closely and
eliminated. As Roberts' states volunteers that come solely from
the NCAA system is inappropriate. His idea of professional
jurists is an excellent one and should be immediately enacted.
This is also one of the most important recommendations from the
Lee Report.
2. Create an independent oversight/ethics board to review
process and assess grievances. Specifically govern oversight
and training of the Enforcement and Student Athlete
Reinstatement Staff. Respond to complaints of inappropriate
behavior, vendettas, and questionable investigative tactics by
NCAA investigators and the COI. I strongly disagree with Potuto
that the investigative staff and COI are ``separate and
independent.'' The investigators have a cozy relationship with
the COI and work directly with the Administrator of the COI,
who works in the same national office. It is ludicrous to think
that the committee would question the tactics of investigators
that they interact with all of the time.
3. Ban the use of secret witnesses. Everyone must have a right
to face their accuser and talk to all witnesses.
4. Explore ways to give the NCAA enforcement staff subpoena
power to hold people in the investigation accountable for what
they say under oath. In the current process there is no real
penalty for lying especially when an institution wants to
protect an individual.
5. Adopt constitutional rules of evidence and procedures. Such
as disclosing all information, witnesses, and other evidence in
the true spirit of cooperation. The cooperative simply does not
exist now. It is cooperate and acquiesce--or else. If you
challenge anything or put up a vigorous defense, an individual
or institution is in danger of being sanctioned for not
cooperating. Hardly in line with American and Constitutional
values.
6. Make all hearings public, open to the media, to include
public disclosure of hearing transcripts. If the NCAA feels
they are doing it right, a little ``sunshine'' will just add
needed credibility to what is now nothing more than a cloak and
dagger ultra secretive process. Potuto's contention that public
hearings would damage the process and hurt individuals is
simply a smokescreen to protect the ``on the cheap'' get it
done quick process that exists now.
7. Have the intestinal fortitude to sanction those who deserve
to be sanctioned. Eliminate the commonly accepted practice on
``institutional scapegoating'' of politically expendable
individuals that gives the appearance something has been done
to correct problem. Subpoena power can release the enforcement
staff from relying so much on the institution for information,
which may in fact be sanitized and manipulated.
8. If an individual is made a corrective action by an
institution regarding NCAA violations by the institution
involved, new procedures should be enacted allowing that
individual(s) appeal rights IF the NCAA accepts the sanction as
its own. It must no longer be used as a convenient place for
the COI or institution to place a scapegoat.
Dr. Myles Brand, the current President of the NCAA, is a mover and
a shaker to say the least. While I may not agree with many of the
reforms he has championed, it is encouraging to see the effort to slow
down this train of abuses in intercollegiate athletics. In a recent New
York Times editorial, Dr. Brand took aim at critics of his academic
incentive/disincentive plan. He stated that the bar has been raised and
that if anyone cheats via academic improprieties the ``NCAA will nail
you.'' He proudly talked about increasing the number of investigators
on the enforcement staff implying that increased numbers of
investigators are the panacea to problems in college athletics. While I
agree the NCAA must not perform enforcement procedures on the cheap, it
must fix the system and the culture, and then spend the needed money,
which is plentiful within the association, on implementing these
proposals.
I do not share the optimism that Potuto and to a lesser extent
Roberts have. I believe there are many more false positives and
wrongful convictions via institutionalized scapegoating and sanctioned
situational morality i.e. what some people do is permissible but what
others do is not--even if it is the same thing. It is time to
administer justice in a fair and equitable manner that ensures all,
even the lowest common denominators, are protected under the
constitution. I fully realize that nothing is ever perfect (although
Potuto refuses to believe there is even the slightest flaw. She claims
there is only miscommunication), but the current process is far from
acceptable or even reasonable.
My modest proposals will go a long way to ensuring integrity of the
process and the fundamental fairness that all Americans are guaranteed
under the Constitution. Dr. Brand, you have been brave to rock the boat
with some of your reforms, are you ready to lead the effort on serious
reform efforts on this important topic, before the government does it
for you?
ATTACHMENTS
Submissions from the Honorable Spencer Bachus, a Representative in
Congress from the State of Alabama
Letter and responses from the NCAA