EXECUTIVE SUMMARY: REPORT AND RECOMMENDATIONS
to the NCAA SPECIAL INTERNAL REVIEW COMMITTEE

BACKGROUND

The Report responds to a request from the NCAA Special Internal Review Committee in May, 2005 for independent legal counsel's review and advice on the adequacy of the Association's Division I investigatory, hearing, and appeal processes, as well as its waiver and reinstatement procedures.  The Committee sought evaluation of several areas, including a review of all Division I enforcement policies and procedures, and an assessment of the Association's processes for controlling its activities and managing its risks.  In addition, it sought recommendations to ensure fair practice, improve accuracy and operational efficiencies and reduce process time.  

The 22-page Report concludes that the procedures provided in NCAA enforcement, hearing, appeals, and waiver and reinstatement proceedings compare favorably with federal, administrative and state court process.  Even though the Supreme Court of the United States has ruled that the NCAA is not subject to due process requirements of the Constitution, it nonetheless substantially abides by those requirements. 

The NCAA cannot replicate, nor should it, all procedural aspects of our court system.  It does not have the resources of the government and it is a self-policing, voluntary membership organization.  (Many people do not realize that the Committees on Infractions and Appeals, which decide whether there have been rule violations and whether and what penalties should be imposed, are made up of non-paid volunteers such as law professors and athletic directors from member institutions.)  Nevertheless, and although not legally mandated, the Report recommends more than 50 procedural changes to reduce process time and to improve both public relations and relations with member institutions. 

Recommendations include permitting an institution to seek reconsideration of a penalty imposed by the Committee on Infractions from that Committee.  This might eliminate the need for an appeal.  The Report also recommends establishing more defined differences between the Committee on Infractions hearings and those of the Appeals Committee. The Report recommends eliminating the appearance of involved parties at the appeals level if they have not appeared at the Committee on Infractions hearing.  And, the Report recommends providing parties an opportunity to resolve time-consuming procedural disputes, such as those regarding documents provided in an investigation, prior to the hearing on the merits. 

The review is an outgrowth not only of the NCAA's commendable record of periodic review and adjustment to its enforcement and infractions procedures to improve them, but also out of concerns developed in recent litigation against the NCAA.  The Report is thus produced as an attorney-client privileged communication and as such, although an independent analysis, is not a public document.  The following is a non-privileged summary of the Report and does not contain privileged information or analysis supporting the Report and does not waive attorney-client privilege.

RECOMMENDATIONS

Enforcement Procedures

A member institution's and athletic department's impressions of the NCAA in many ways are formed and shaped by their interactions with the Enforcement Division staff.  The members' and athletic departments' impressions, attitudes, and public statements can greatly affect overall public opinion of the NCAA.  It is therefore of crucial importance that the Enforcement staff and process not only be fair -- which it is -- but is perceived to be fair and impartial.  The Report makes several recommendations to help eliminate public misperceptions that the NCAA arbitrarily investigates only certain schools, including:

? Creating written guidelines on how to gauge the credibility of an informant's complaint. 

? Formalizing a system of peer review within the Enforcement Division that requires a senior level sign-off before authorizing the initiation of a full investigation. 

? Encouraging and continuing a culture in which a determination that no violation has occurred or that an investigation is not warranted is also a successful outcome. 

? Providing additional training to new hires in the Enforcement staff on interview techniques before they participate in investigations.

? Informing interviewees when it is known that they are being questioned as having been involved in major violations.  

? Informing the President or Chancellor of the institution under investigation of the nature of the investigation in a timely manner. 

Hearing Procedures

As the initial reviewing body of enforcement actions, the Committee on Infractions bears the burden of institutional and public scrutiny of its penalty determinations.  Here again, procedural provisions are generally proper.  Recommendations include: 

? Requiring involved parties to appear at the Infractions Committee hearing before they are entitled to appear at the Appeals Committee hearing, which also might eliminate the need to appeal and will enable the Infractions Committee to make more fully informed findings. 

? Establishing a Bylaw that the failure to deny allegations may be an admission of the allegation to encourage participation at the hearings and discourage waiting until the appeal to participate. 

? Providing schools an opportunity to seek reconsideration of an imposed penalty, which could eliminate the need for an appeal and reduce process time. 

? Providing parties an opportunity to resolve time-consuming procedural disputes, such as those regarding documents provided in an investigation, prior to the hearings on the merits, which will expedite decisions.

In addition to these procedural changes, it is recommended that the NCAA consider clarifying NCAA rules to bring into application the procedural protections afforded under the Federal Arbitration Act, such as the ability to issue and enforce subpoenas and to limit the bases to challenge an outcome in court. The Act is broadly enough written to argue that the NCAA enforcement actions already have most of the attributes of arbitration, and the NCAA only needs to make minor alterations and to rename the proceedings to have the Act apply. Further study of the benefits of binding arbitration is therefore recommended.

Appeal Procedures

Several recommendations are made to ensure the Appeals Committee is conducting strictly an appellate review and not de novo or initial review of new evidence, including:

? Recommending that the Appeals Committee refer important new evidence back to the Committee on Infractions for its review. 

Membership Services

? Hiring more staff to expedite processing of inquiries?which the NCAA has already done.

? Giving schools an opportunity to submit a joint statement of facts with NCAA staff regarding the review of reinstatement and eligibility of athletes, which would expedite the review.

? Considering publishing timelines for expected action by the NCAA and responding to developments in fact gathering to inform the media and educate the public.

External Communications

? Developing a substantial and sustained public and institutional educational effort to publicize both facts about the NCAA and its structure.  

? Establishing a "Reporter of Decisions" to review for accuracy every publication of a decision by the Committee on Infractions, Appeals Committee and Membership Services, and every press release, website publication, and Bylaw change. 

? Considering more public response to public statements made by those being investigated, including statements not only by institutions, but also those made by involved individuals.

? Informing the public and the media of procedures and timelines in high profile cases.