REPORT OF THE
ACTION ITEMS.
a. Bylaw
32.2.1.1 - Staff Initiation of Investigation.
(1) Recommendation. Sponsor legislation to modify Bylaw
32.2.1.1 to clarify when the enforcement staff may initiate an
investigation, as follows:
“32.2.1.1
Staff Initiation of Investigation.
The enforcement staff may initiate an investigation on its own motion
when it receives information that an institution or individual is, or has been or may have been in violation
of NCAA legislation.”
Effective
Date: Immediate.
(2) Rationale.
This amendment clarifies the current practice of the enforcement
staff to initiate an investigation when it obtains information that an
institution or individual may have been in violation of NCAA legislation.
(3) Estimated
Budget Impact: None.
b. Modification of Bylaw 32.2.2.1.2 _- Identification
of Major/Secondary Violation.
(1) Recommendation. Sponsor legislation to amend Bylaw
32.2.2.1.2 to clarify that the enforcement staff may submit information to the
Committee on Infractions for an initial determination of whether the case
should be processed as a major or secondary case, as follows:
“32.2.2.1.2
Identification of Major/Secondary Violation. The enforcement staff shall identify
information developed by it or self-reported by the member institution as
alleged major or secondary violations (as defined in Bylaw 19.02.2). The
staff shall have the discretion to submit information to the Committee on Infractions,
or a designated member of the Committee on Infractions, for an initial determination
of how that information should be processed.”
Effective
Date: Immediate.
(2) Rationale.
Although the enforcement staff usually makes the decision as to
whether an infractions case should be processed as a major or secondary case,
it retains the option to consult with the Committee on Infractions for
guidance. This amendment memorializes
that option.
(3) Estimated
Budget Impact: None.
c.
Modification of Bylaw 32.3.7 - Disclosure
of Purpose of Interview.
(1) Recommendation. Sponsor legislation to modify Bylaw
32.3.7 to specify that the enforcement staff must provide notice to certain
individuals at the beginning of an interview that refusing to furnish information
or providing false or misleading information may result in an unethical-conduct
charge, as follows:
“32.3.7 Notice Requirements
“32.3.7.1
Disclosure of Purpose of Interview.
When an enforcement representative requests information that could be
detrimental to the interests of the student-athlete or institutional employee
being interviewed, that individual shall be advised that the purpose of the
interview is to determine whether the individual has knowledge of, or has been involved directly or
indirectly in, any violation of NCAA legislation.
“32.3.7.2
Responsibility to Cooperate. Prior to At the beginning of an interview arranged or initiated by
the enforcement staff, a current or
former student-athlete or staff
member institutional employee shall
be advised that if the individual has violated the NCAA’s ethical
conduct legislation such an allegation may be forthcoming based upon the
individual’s refusing to
furnish information or providing false or misleading information to the NCAA,
conference or institution may result in an allegation that the individual has
violated NCAA ethical-conduct legislation (see NCAA Bylaw 10.1).:
“(a) Involvement in
violations;
“(b) Refusal
to furnish information relevant to investigation of a possible violation when
requested by the NCAA or by the institution; or
“(c) Provision
of false or misleading information to the NCAA, conference or institution
concerning the individual’s knowledge of or involvement in a violation.”
Effective
Date: Immediate.
(2) Rationale.
This bylaw was amended improperly in
April of 2003 and was used against the Association in a lawsuit in early
2004. This amendment corrects the
problem by using the language that should have been incorporated in 2003.
(3) Estimated
Budget Impact: None.
d.
Modification of Bylaw 32.3.9.1 (Tape
Recording(s)), 32.3.9.1.1 (Access to Tape Recording(s)), 32.3.9.1.4 (Statement
of Confidentiality), 32.3.9.2 (Non-Recorded Interviews), 32.3.10 (Enforcement
Staff’s Responsibility to Maintain a Case File and Access to Information
to be Used in Presentation of Case).
(1) Recommendation. Editorially revise various bylaws
(32.3.9.1; 32.3.9.1.1; 32.3.9.1.4; 32.3.9.2; and 32.3.10) to change the wording
from “tape recordings” to “recordings” because the
enforcement staff now uses digital recording devices rather than tape-based recorders,
as follows:
“32.3.9.1
Tape Recordings. It is preferable that an interview conducted by the enforcement
staff be recorded through the use of a mechanical device. However, if a witness
objects to being tape recorded or the enforcement staff believes the use
of a recording device would have an inhibiting effect upon the witness, a
written statement of the substance of the interview shall be prepared per Bylaw
32.3.9.2.”
“32.3.9.1.1
Access to Tape Recordings.
Both the enforcement staff and the individual being interviewed may
record the interview or the individual may receive a copy of the recording,
subject to the confidentiality provisions of Bylaws 32.3.9.2.1 and
32.3.9.1.4. Copies of recorded interview summaries and any report
prepared by the enforcement staff are confidential and shall not be provided to
individuals (and their institutions) who may be involved in reporting
information during the processing of an infractions case except as set forth in
Bylaw 32.6.4.”
“32.3.9.1.4
Statement of Confidentiality.
Individuals and institutional representatives shall be required to agree
not to release tape recordings or interview transcripts to a third
party. A statement of confidentiality shall be signed or recorded prior to an
interview. Failure to enter into such an agreement would preclude the
individual or institutional representative from recording or transcribing the
interview.”
“32.3.9.2
Non-Recorded Interviews. When an
interview is not tape recorded or in circumstances when the recording
device malfunctions, the enforcement staff shall prepare a written summary of
the information and attempt to obtain a signed affirmation of its accuracy from
the interviewee. The interviewee shall be permitted to make additions or
corrections to the memorandum before affirming its accuracy. However,
testimony as to the substance of an unrecorded interview for which a signed
affirmation was not obtained may nevertheless be considered by an Infractions
Committee to the extent the committee determines the testimony to be
reliable.”
“32.3.10
Enforcement Staff's Responsibility to Maintain a Case File and Access to
Information to be used in Presentation of Case. Copies of tape recorded interviews,
all interview summaries and/or interview transcripts and other evidentiary
information pertinent to an infractions case, shall be retained on file at the
national office. Information to be used in the presentation of a case by
the enforcement staff may be reviewed in the national office or at the site of
a custodial agent in accordance with the provisions of Bylaw 32.6.4.”
“32.8.7.7
Recording of Proceedings. The
proceedings of institutional hearings shall be recorded by a court reporter
(unless otherwise agreed) and shall be tape-recorded
by the committee. No additional verbatim recording of these proceedings will be
permitted by the committee. The Committee on Infractions shall maintain custody
of the tape recordings and any transcriptions. In the event of an
appeal, a transcript of the hearing proceedings shall be reproduced and
submitted to the Infractions Appeals Committee and made available for review at
the NCAA national office or at custodial sites reasonably near the institution
and involved individuals. [Note: Involved individuals only will receive
portions of the hearing transcripts in which they were in attendance at the
hearing.]”
Effective
Date: Immediate.
(2) Rationale.
Due to the fact that the enforcement staff is now using digital recorders,
any reference to "tape" recordings has become obsolete.
(3) Estimated
Budget Impact. None.
e.
Modification of Bylaw 32.6.2 - Notification
by Enforcement Staff.
(1) Recommendation. Sponsor legislation to modify Bylaws
32.6.2 to require that individuals charged with a major violation submit a
response to the Committee on Infractions and to specify that failure to submit
a response may be viewed by the Committee on Infractions as an admission that
the alleged violations occurred, as follows:
“32.6.2 Notification by Enforcement Staff. The enforcement staff shall notify athletics department staff members and student-athletes at member institutions (including the institution under inquiry) whose employment or eligibility could be affected of the allegations in a notice of allegations in which they are named. A copy of such notification shall be forwarded to the chief executive officer of the institution that employs the staff member or in which the student is enrolled. All
such
individuals may shall
submit responses to the Committee on Infractions, and the institution under
inquiry shall provide a copy of pertinent portions of its response to each
individual who will attend the committee’s hearing in the case. Involved
individuals who have submitted a response must also share their response with
the involved institutions or other involved individuals as necessary. Failure to submit a response may be
viewed by the committee as an admission that the alleged violations occurred. The enforcement staff shall notify those
athletics department staff members named in the notice of allegations who may
be subject to the show-cause requirements from the committee if violations are
found in which they are named.”
Effective Date: Immediate.
(2) Rationale.
The Committee on Infractions encourages involved individuals to
submit a response to alleged violations in an effort to create a full record
and to provide ample opportunity to the individuals to present all relevant
information about the case.
However, when an individual fails to submit any information, the committee
believes it should be permitted to view the failure as an admission that the
alleged violation occurred. The ultimate
decision would lie with the committee, and the burden to prove the allegation
would remain on the enforcement staff.
(3) Estimated Budget Impact: None.
f.
Modification of Bylaw 32.6.5 - Deadline
for Institutional Response.
(1) Recommendation. Sponsor legislation to modify Bylaw
32.6.5 to specify that all parties in an infractions case must share their responses
with each other, as follows:
“32.6.5 Deadline for Institutional
Responses. The
institution’s and any involved
individual’s response to the notice of allegations shall be on
file with members of the committee, and the enforcement department and each other, within 90 days
of the institution’s and any
involved individual’s receipt of the notice, unless the committee
grants an extension. An institution
or involved individual may not submit additional documentary evidence (in addition
to its initial response) at that meeting point without prior authorization from the committee (see
Bylaw 32.6.8 for additional instructions regarding information submitted to the
Committee on Infractions).”
Effective
Date: Immediate.
(2) Rationale.
All parties should be able to review
relevant information from each other’s responses to the Committee on
Infractions prior to a hearing to ensure full disclosure to an institution or
individual being charged with an alleged violation.
(3) Estimated
Budget Impact. None.
·
Statistics Related to Secondary Cases for
2005. Approximately 2,776 secondary
infractions cases for all divisions were processed and/or reviewed by the
enforcement staff during the 2005 calendar year. Of the 2,776 cases, 1,328 were (48%)
were processed by institutions and/or conferences as Level II secondary
violations. Division III had
approximately 245 secondary infractions cases processed. Of those, 99 (40%) were processed by
institutions and/or conferences as Level II secondary violations. (Attachment)