Law and Order: NCAA

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julie roe lachJulie Roe Lach’s first public statement, an article for Yahoo! Sports that reads like an open letter, does not sound like the words of how Roe Lach has been portrayed following the Miami investigation scandal. The article is surprisingly positive about the direction of the enforcement program, and has none of the hallmarks of someone who was simply made a scapegoat. There’s more nuance to the misuse of Nevin Shapiro’s attorney than many people (including myself) have acknowledged, and Roe Lach presents that nuance well.

Roe Lach presents a vision of how the NCAA can recover from the damage done by the Miami investigation, first by explaining the gains made in the two years prior to the scandal coming to light and how to continue those gains going forward. And some of those improvements are considerable, from a better understanding of the football and basketball recruiting environment and shorter case times (on average) to new quality control measures.

But where I disagree with Roe Lach is with the basic assumption that the NCAA enforcement program can continue as a cooperative, administrative fact-finding endeavor. Increasingly, schools are treating investigations and major infractions cases as adversarial processes, where they lawyer up and go down fighting on any and all points they think they can get away with. But at the same time, the cooperative principle hangs over this process as both a stick and a rarely-used carrot.

Even the improvements to the enforcement staff in recent years speak to this conflict. On the one hand, staff focused on football and basketball are “charged with generating cases.” On the other hand, their peers and colleagues are the ones charged with reviewing cases and deciding what charges will go into a Notice of Allegations and before the Committee on Infractions. It’s not hard to see the appearance of impropriety from the critic’s eye. “I need to get this case through, so let mine go and I’ll owe you one.”

So it is no wonder that the public, student-athletes, and even coaches and administrators seem unclear about the role of the enforcement staff. When someone connected to a possible violation sits down with an NCAA investigator, who are they sitting down with? An impartial fact finder who is simply interested in the dispassionate search for the truth? Or someone tasked with defending and protecting the NCAA’s rules, charged with sniffing out violators and bringing them to justice?

The events of the past year or so suggest that in the eyes of student-athletes, the public, and most importantly member institutions, impartiality and aggressiveness cannot coexist. In truth they can; an investigation can tenaciously follow the facts wherever they lead, including to a conclusion that nothing improper happened. But between stronger defenses put on by schools and the need to protect student-athletes as especially vulnerable in an investigation make it more difficult.

Perhaps the solution is to abandon the pretense about what side the NCAA enforcement staff is on. While cops and prosecutors are supposed to impartial in a way, no one doubts where their loyalties lie. They are paid to catch criminals, enforce the state’s laws, be suspicious, and win convictions. This works (in theory if not always in practice) because of the protections and limits placed on their power.

Perhaps instead of finding a workable solution where everyone is expected to be cooperative and impartial, the NCAA’s’ best path forward is to clarify everyone’s roles with clear rules and clearer expectations. Investigators are on the side of the NCAA, and are paid to be cynical. Anything you say to them can and will be held against you. That is balanced by making sure institutions and student-athletes are adequately represented, with public defenders if necessary.

The cooperative principle should evolve into an expectation of membership. Institutions, student-athletes, and coaches will not be expected to “cooperate” with an investigation. They are instead expected to respond to orders and requests within clearly defined time limits, possibly enabling student-athletes to continue to compete while under investigation. Iron-clad rules should answer questions about what evidence the NCAA can use, how the NCAA can gather it, and the expectations for vetting the credibility of evidence.

When an investigation is possibly ready for a Notice of Allegations, peer review should be replaced by a grand jury. That could be membership representatives, volunteers from the public (like retired judges), or a separate, firewalled portion of the national office staff. Their job would be to review the evidence, review the charges, and decide if enough of the former supports enough of the latter to go forward.

The NCAA cannot continue to try and pitch enforcement as happy helpful civil servants. The enforcement system needs clear rules, clear expectations, and a clear message to the membership. And the easiest message to send is that we are on the side of NCAA rules and if you break them, we’re coming for you.

Bard College Athletic Recruiting.


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