Reform the NCAA Process

GUILTY until proven innocent! A reign of terror! Kangaroo court! Are these descriptions of third-world tribunals? No, this is how various critics characterize the National Collegiate Athletic Association's enforcement process.Intercollegiate athletics today is a multibillion-dollar business. Any school placed on probation by the NCAA and barred from bowl games or post-season tournaments in basketball will lose hundreds of thousands of dollars. Probation may also have an adverse effect on an athlete's professional sports opportunities. The enforcement process must therefore be, or appear to be, as fair as possible. In recent months, everyone from journalists to coaches to congressional representatives have become critics of the system. Four states (Florida, Illinois, Nevada, and Nebraska) have recently enacted laws requiring the NCAA to implement varying degrees of due process. Rep. Ed Towns (D) of New York has introduced a bill in Congress to accomplish similar ends at the federal level. Hearings featuring such speakers as Jerry Tarkanian and Dale Brown were held in June by the House Subcommittee on Commerce, Cons umer Protection and Competitiveness to investigate the situation. The NCAA has appointed a task force headed by former Solicitor General Rex Lee (now president of Brigham Young University) to consider revising the process. The task force conducted the first of three hearings last week and is expected to file a report by fall. All the while, executive director Richard Schultz of the NCAA maintains that the association is not opposed to due process, but believes it already provides it. Critics of the system are correct in calling the current procedures heavy-handed and unfair. This writer does not agree with those critics who would entrust the matter to the state legislatures or Congress. The NCAA must, in order to control intercollegiate athletics, take care of its own problems. Reform must come from within - and soon. Basic policies, rules and constitutional provisions of the NCAA are adopted by member schools at the annual convention. The enforcement of the rules and policies is currently administered by the Committee on Infractions, which advises the enforcement staff, conducts hearings on enforcement matters, makes findings, and hands down penalties. Appeals are to the NCAA Council and are almost never successful. One of the keys to this program is the policy that member schools are to cooperate fully with the enforcement staff during investigations. This means that while the NCAA is conducting its investigation the school must also conduct an investigation of itself. And it must turn over any damning information it turns up! In the meantime, if the enforcement staff has questions about how to conduct the investigation it can consult with the Committee on Infractions - the body that will ultimately judge the matte r. This is like a homicide detective consulting with the judge who will be sitting at the murder trial of the investigative suspect. Thus the allegations that the committee serves as judge, jury, and executioner are quite apt. The investigative process itself is a problem. While a coach or athlete under scrutiny may have legal counsel, there can be no recording of interrogations. Note-taking is allowed, but that is far from satisfactory. Horror stories abound of NCAA investigators conducting three-hour interviews and coming away with few notes. The accuracy of such a process is at best questionable. Other deficiencies in the system include the lack of full access to NCAA documents and files and the lack of any opportunity to cross-examine witnesses. There is simply too much at stake for the schools, the coaches, and the athletes for the NCAA to provide anything less than fairness equivalent to civil trial proceedings. Finally, there is a lack of consistency and fairness in the ultimate decisions. The NCAA does not adhere to the principle found in the judicial system of stare decisis, or the following of precedent. Nor is it clear that there is a consistency or fairness in the sanctions imposed. Athletes have been suspended for appearing as movie extras or posing for calendars benefiting charitable causes. A year ago, the University of Nevada, Las Vegas, was allowed to postpone the beginnings of its sanctions resulting from a investigation ostensibly so that it could defend its NCAA basketball championship. When it was placed on probation after its 1988 championship, the University of Kansas was given no such break. In order to escape the clutches of state and federal legislation, the NCAA must consider: adopting a program including formal and open procedures, particularly where major violations are alleged; presence of counsel at at all times; and recording or transcription of all proceedings and allowance of complete discovery rights. Administrative-type hearings must be provided, although the formal rules of evidence need not be applied. Cross-examination of witnesses is a crucial element in the issue of fairness . There must also be a consistency of penalties and a rational relationship of the penalty to the violation. Interaction between the decisionmaker and the investigatory arm must cease. The NCAA should consider replacing the Committee on Infractions with a panel of judges. A group of 20 could be appointed from among the bench, bar, and legal scholars. Panels of three, appointed through a random process, would hear each case. The judges would be appointed for staggered terms of 10 years and could be reappointed once. Ex parte contracts with the panels would be prohibited. Appeal would still be to the NCAA Council , but would provide expanded opportunities for written briefs and presentation of oral arguments. Procedural fairness must be a fundamental and visible part of the enforcement process. The public, athletes, coaches, and schools must believe that the process is fair. This fairness must be implemented by the NCAA through the normal legislative process. The states and Congress should stay out of the matter. In order to insure this the NCAA must act promptly. If it does not, the enforcement process may simply be the nose of the camel entering the tent. And this will be merely the first step in more pervasive government regulation of intercollegiate athletics.