Lack of Institutional Control: Will the NCAA Be Its Own Executioner?
By Thomas Elliot on April 11, 2013
Established in 1910, the National Collegiate Athletic Association (NCAA) purports to protect today’s student-athletes from exploitation. The NCAA has little control over how member institutions run their athletic departments, but maintains almost exclusive control over eligibility guidelines for student-athletes. These eligibility standards control not only potential student-athletes deciding which school to attend, but also controls enrolled student-athletes competing interscholastically. As legislator, prosecutor, and judge, the NCAA has the right to enforce the rules that it puts in place and hand down punishments as it sees fit.[1] However, the NCAA has recently come under severe criticism for the way in which it handled investigations into alleged NCAA rule-breaking at the University of Southern California (USC), University of California Los Angeles (UCLA), and University of Miami. The NCAA has been accused of unethical behavior for the way it conducted each investigation.[2]
USC
While investigating USC, the NCAA concluded that an assistant football coach, Todd McNair, was complicit in Reggie Bush receiving improper benefits from marketing agents. McNair was banned from coaching at any NCAA institution for a year. McNair lost his NCAA appeal, and sued the NCAA for “libel, slander, breach of contract and four other alleged offenses.”[3] McNair also took issue “with the one-sided examination policy established by the NCAA, which doesn’t allow those targeted by investigations to cross-examine witnesses used.”[4] Los Angeles Superior Court Judge Frederick Shaller denied the NCAA’s motion to dismiss and his opinion stated the NCAA showed “ill will or hatred” towards McNair in its investigation.[5] Shaller also labeled the NCAA as “malicious” in its investigation.
UCLA
Shabazz Muhammad was one of the most highly recruited high school basketball players in the country before he decided to go to UCLA. After enrolling at UCLA, the NCAA announced that they were investigating circumstances surrounding unofficial visits Muhammad took during his recruitment. The visits were paid for by a man that Muhammad claims as a close family friend.[6] During the investigation, the boyfriend of the lead investigator on the Muhammad case was overheard on an airplane declaring the NCAA would find Muhammad ineligible and he would not play for the rest of the year.[7] At this point, the NCAA had only requested documents from Muhammad’s family eight days prior, and had yet to receive the thousands of pages of documents it had requested. The timing of this statement led Muhammad’s personal attorney to question the impartiality of the NCAA investigation and suspected that the NCAA had already prejudged Muhammad’s guilt.[8] In November of last year, the NCAA and UCLA reinstated Muhammad after he paid a $1,600 fine and sat out three games.[9] The $1,600 fine is normally accompanied with a ten game suspension, yet the NCAA chose to levy only three games, which normally correlates to a $600 fine.[10]
Miami
In February 2013, the University of Miami athletic department was served a notice of NCAA allegations accusing the school of lack of institutional control.[11] The NCAA alleged Miami “allowed a booster named Nevin Shapiro to infiltrate its athletic department and have relationships with athletes that were both personal and — according to Shapiro — financial.”[12] The investigation that led to that conclusion came under serious scrutiny that resulted in the firing of the NCAA Vice President of Enforcement Julie Roe Lach.[13] The NCAA does not have subpoena power to compel witnesses to comply in their investigations.[14] To circumvent its lack of subpoena power to compel witnesses to comply with their investigations, the NCAA paid Shapiro’s attorney to allow an NCAA attorney to prepare questions and attend a deposition relating to Shapiro’s bankruptcy. The lead investigator, Ameen Najjar, was also fired after disregarding NCAA general counsel’s advice to not pay Shapiro’s lawyer. Due to its own malfeasance, the NCAA threw out 20% of the evidence used in the Miami investigation. Now, Miami is asking the NCAA to completely dismiss the case against the university due to the NCAA’s unethical conduct that tainted the proceeding.[15]
The circumstances of these investigations certainly show a lack of institutional control but not from any of the schools under the microscope. Instead, the NCAA has become the subject of media reports and speculation that it struggles to control the investigators on its staff. Yet, NCAA President Mark Emmert, who oversees all aspects of the NCAA, continues to garner support from the NCAA executive committee. Recently, the NCAA passed a rule holding head coaches more accountable for the actions of their assistants in program compliance with NCAA regulations.[16] This is a logical rule that encourages coaches to become more involved with their assistants in the formation of recruiting strategies, among other things. Despite the accountability that the NCAA demands from those under its watch, the NCAA does not appear eager to impose the same standards on itself, as Emmert, the NCAA’s equivalent “head coach,” faces no sanctions.
Emmert categorizes the poorly run investigations as “miscues.” The “miscues,” however, illustrate a bigger problem: namely, the NCAA’s lack of accountability. The obvious disregard for ethical rules demonstrated by NCAA investigators is disheartening for those “student-athletes” who must go through investigations, for their parents, and for the schools. However, what is even more concerning is the lack of leadership that the NCAA has shown. Emmert has become a lighting rod for criticism among all the “miscues” and deservedly so. His past reveals tenures at the University of Connecticut, Louisiana State University, and Montana State University that were less than stellar.[17] However, the common theme from all of those “miscues” is that Emmert himself avoided blame. The current situation is no different.
What’s Next for the NCAA
Many critics believe the NCAA has fallen out of step with its original intent. Commercialism has rendered the NCAA’s core tenant of “amateurism” a relic and the NCAA’s attempt to perpetuate the concept has accelerated its own demise. The “miscues” highlight the NCAA’s downhill tumble towards irrelevancy. The NCAA does not control the BCS or the new football playoff system, and also has “no discernible role in pivotal conference realignments.”[18] The major role that the NCAA has been reduced to is that of the rule-maker and enforcer. If the NCAA cannot effectively perform these duties then maybe it is time for a change in how college athletics are run. According to many, it is possible that major college football may break away from the NCAA and form its own association where it can make its own rules. Another possibility that will not necessarily get rid of the NCAA is the naming of a Commissioner that oversees each sport. With either option the role of the NCAA is reduced severely below the already minor role it plays now. It’s clear the NCAA must brush up on its ethical duties during investigations or run the risk that it puts itself out of business before everyone else does. At the very least, it is time for new leadership that can guide the NCAA through these choppy waters.
[1] See NCAA Enforcement, Investigations: Frequently Asked Questions, NCAA (last updated Jan. 21, 2013), http://www.ncaa.org/wps/wcm/connect/public/NCAA/Enforcement/Process/Investigations.
[2] See George Schroeder, Miami Fires Back at the NCAA; Investigation Moves Ahead, USA Today (Feb. 19, 2013, 12:53 AM), http://www.usatoday.com/story/sports/ncaaf/acc/2013/02/19/ncaa-enforcement-investigation-miami-hurricanes-react-president-donna-shalala/1929151/.
[3] See Isaac Rauch, Judge: The NCAA Went “Over the Top” in its Investigation of USC’s Todd McNair Because of “Ill Will or Hatred”, Deadspin (Dec. 1, 2012, 5:20 PM), http://deadspin.com/5964838/judge-the-ncaa-went-over-the-top-in-its-investigation-uscs-todd-mcnair-because-of-ill-will-or-hatred.
[4] See id.
[5] Id.
[6] See Eric Prisbell, NCAA Reinstates Shabazz Muhammad, USA Today (Nov. 17, 2012, 10:28 AM), http://www.usatoday.com/story/sports/ncaab/2012/11/16/ncaa-reinstates-ucla-shabazz-muhammad/1710617/.
[7] See id. (describing airplane conversation that led to potential prejudice in investigation).
[8] See id.
[9] See id.
[10] See id.
[11] See Dennis Dodd, Miami to File Motion to Dismiss Nevin Shapiro Infractions Case, CBS Sports(Mar. 29, 2013, 1:50 PM), http://www.cbssports.com/collegefootball/blog/dennis-dodd/21969949/miami-to-file-motion-to-dismiss-nevin-shapiro-infractions-case.
[12] John Feinstein, NCAA’s Miami Investigation Exposes an Organization in Need of an Overhaul,Washington Post (Feb. 20, 2013), http://articles.washingtonpost.com/2013-02-20/sports/37192501_1_julie-roe-lach-jim-isch-ncaa-president-mark-emmert.
[13] See id.
[14] See NCAA Enforcement, supra note 1.
[15] See Dodd, supra note 11.
[16] See Head Coaches Directly Responsible, ESPN (Oct. 26, 2012, 1:16 PM), http://espn.go.com/college-sports/story/_/id/8553497/ncaa-adopt-stricter-rules-coaches-report-says (describing new NCAA measure holding coaches more accountable).
[17] See Brent Schrotenboer, Digging Into the Past of NCAA President Mark Emmert, USA Today (Apr. 2, 2013, 7:54 PM), http://www.usatoday.com/story/sports/ncaab/2013/04/02/ncaa-president-emmert-previous-cases-uconn-lsu/2047607/ (revealing Emmert’s escaping blame amidst scandal at each school).
[18] See Brad Wolverton, At Final Four, NCAA Faces Renewed Questions About Its Role, The Chronicle (Apr. 4, 2013, 4:55 AM), http://chronicle.com/blogs/players/at-final-four-ncaa-faces-renewed-questions-about-its-role/32749 (analyzing where NCAA fits in revamped college athletics scene).
