April 2005 NCAA Executive Committee Supplement No. 7

REPORT OF THE APRIL 20, 2005, EXECUTIVE COMMITTEE
SUBCOMMITTEE ON NCAA CONSTITUTION ARTICLE 2

The NCAA Executive Committee Subcommittee on NCAA Constitution Article 2 offers the following report from its April 20, 2005, conference call:

ACTION ITEM.

1. Recommended approach to address the issue of whether the Association should amend the NCAA infractions process to investigate and find violations of principles of student-athlete welfare.

A. Recommendation. Endorse the following approach to address the issue of 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:

(1) No new overarching bylaws intended to address situations of general misconduct by students, faculty and staff should be adopted as those matters should be addressed at the institutional level.

(2) The terms of NCAA Bylaw 6.01.1 (institutional control) should not be expanded to mandate the existence of an institutional grievance or appeal procedure for misconduct given that such an expansion would result in redundancy with some of the requirements of the certification process in Division I and the self-study guides in Divisions II and III.

(3) The Division I athletics certification program along with the self-study programs in Division II and III should be reviewed by the respective Division I Committee on Athletics Certification and the Divisions II and III Membership Committees and appropriate staff to determine whether the processes are helpful in ensuring grievance procedures are in place to address such allegations and to consider whether each area of review should be modified or enhanced. Issues to be considered in this examination include: whether institutions that experience a situation involving such misconduct should be subject to additional review or whether institutions should be required to demonstrate that the grievance procedures were actually used when faced with such a situation.

(4) A new initiative should be implemented whereby the NCAA president is authorized to communicate directly with an institution’s president regarding allegations of misconduct involving that institution’s staff or student-athletes (when the NCAA president is made aware of such an allegation).

B. Rationale: In December 2004, 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 athletics performance. The subcommittee, at that time, asked the NCAA legal counsel to share its preliminary thoughts with the general counsel advisory board (GCAB).

Subsequently, the subcommittee received a report from NCAA legal counsel regarding feedback received from the GCAB and learned the GCAB expressed a lack of support for expanding NCAA enforcement staff authority to deal with general student and staff misconduct. The consensus of the GCAB was that this area should continue to be left to the individual institutions to monitor and discipline as appropriate. Therefore, based on this information and further discussion the subcommittee recommends that no new overarching bylaw providing for a show cause provision be drafted and that the terms of Bylaw 6.01.1 setting forth the principle of institutional control not be modified.

Further, with regard to comments by some from the GCAB that the athletics certification process should be used to address this issue, it should be noted that the Division I Athletics Certification program and the Divisions II and III Institutional Self-Study Guide (ISSG) already require that each institution have a grievance procedure and that it address the types of misconduct the subcommittee has been discussing. These processes appear helpful ensuring that appropriate grievance procedures are available to student-athletes. Therefore, the subcommittee recommends that there should be continued examination of the certification and self-study processes to ensure they are having their intended effect and to look for ways they can be enhanced.

Finally, by establishing a new initiative whereby the NCAA president will contact institutions facing allegations of a violation of the principle of student-athlete welfare, it will help ensure institutional leaders are placed on notice regarding the allegations and that the institutions have the autonomy to address the situation as appropriate based on the facts.