[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



                        DUE PROCESS AND THE NCAA

=======================================================================

                                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
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       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
                                 ------                                

                    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

                              ----------                              

                           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

                              ----------                              


                      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.
---------------------------------------------------------------------------
    \1\ Roberts, Resolution of Disputes In Intercollegiate Athletics, 
35 VALPO. U.L. Rev. 431 (2001).
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \29\ See cases cited at n.12, supra.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------

    \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

                              ----------                              


               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




                                 
