REPORT OF THE DECEMBER 17, 2004, EXECUTIVE COMMITTEE SUBCOMMITTEE ON NCAA CONSTITUTION ARTICLE 2

The NCAA Executive Committee Subcommittee on NCAA Constitution Article 2 offers the following report from its December 17, 2004, conference call:

INFORMATIONAL ITEMS

1. Review of Subcommittee Charge. The subcommittee briefly reviewed its charge which is to determine whether the Association should amend the NCAA infractions process to investigate and find violations of principles of student-athlete welfare as set forth in Constitution Article 2.

2. Options for Addressing the Issue. The subcommittee confirmed that they had identified three general approaches for addressing this issue. The three approaches are:

a. To amend the NCAA Constitution to provide specific authority to allow the NCAA infractions process to investigate and find violations of the principle of student-athlete welfare.

b. To develop new bylaws to address specific factual scenarios previously identified through the infractions process.

c. To develop show-cause guidelines and establish a system whereby show-cause requests shall be sent to institutions to address situations referenced in Article 2.

The subcommittee agreed to focus its examination on the development of bylaws to address specific factual scenarios and on the development of a show-cause system and guidelines.

3. Draft Document. The subcommittee reviewed and discussed a document prepared by NCAA legal counsel which set forth both a draft of three sample bylaws designed to address specific factual scenarios and a draft of a new bylaw which is intended to address violations of the principle of student-athlete welfare through a show-cause provision. After examining the options set forth in the document, the subcommittee members offered the following comments and assessments:

a. The subcommittee expressed preliminary support for seeking to add a new bylaw subsection to Bylaw 10.1 - Unethical Conduct. The proposed new bylaw could read as follows:

Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member or representative (e.g., coach, professor, tutor, teaching assistant, student manager, student trainer, team physician) may include, but is not limited to, the following:

(f) Knowing involvement in offering or providing a student-athlete prescription or banned drugs to change athletic performance.

b. The subcommittee expressed concern that the other two drafted bylaws regarding physical and/or mental abuse by a coach or physical abuse by a prospective or current student-athlete were understandably vague and would be cumbersome to apply and enforce due to subjective interpretations.

c. The subcommittee saw merit in developing a new institutional control bylaw to address violations of the principle of student-athlete welfare through the development of a show-cause provision where institutions would be required to investigate and address situations referenced in Article 2. The subcommittee noted the importance of ensuring that there is appropriate filtering language included in the show cause provision so that institutions would be required only to address meaningful allegations and not frivolous assertions.

4. Future Course of Action. While the subcommittee indicated preliminary interest in recommending the adoption of a new institutional control bylaw to address violations of the principle of student-athlete welfare through the application of a show-cause provision along with the adoption of a specific bylaw intended to address situations where there has been knowing institutional involvement in offering or providing a student-athlete prescription or banned drugs to change athletic performance, the subcommittee agreed that at this stage in its examination both options set forth in the working document should be subject to further consideration.

The subcommittee recommended that NCAA legal counsel share the subcommittee’s preliminary thoughts, along with the working document, with a group of university attorneys scheduled to meet at the 2005 NCAA Convention to ascertain their comments and feedback.

5. Next Meeting. Given subcommittee members’ scheduling difficulties at the 2005 NCAA Convention, the group agreed to continue its examination shortly after the Convention, although no date was set for a call or meeting.

Committee Members: Kathryn Martin, University of Minnesota Duluth.

Sidney Mc Phee, Middle Tennessee State University.

Phillip C. Stone, Bridgewater College, chair.

Staff Liaisons: Elsa Cole, General Counsel.

David Price, Enforcement.