The NCAA infractions process has long been criticized, including a memorable quip from Hall of Fame hoops coach Jerry Tarkanian that “the NCAA is so mad at Kentucky they’re going to give Cleveland State another year of probation.” Much criticism has been based on an alleged lack of independence between the system’s prosecutor, the enforcement staff, and its judge and jury, the Committee on Infractions (COI). That criticism was recently bolstered by the enforcement staff’s report that the COI affirmed 93% of its allegations over a three-year period.
Such a perceived lack of independence, however, is not unique to the NCAA. Other administrative agencies use similar enforcement processes that yield comparable results. One example is the Federal Trade Commission’s (FTC) Part 3 proceedings, through which it can challenge anticompetitive conduct and unfair or deceptive practices. And just like the NCAA infractions process, the FTC’s process results in a similarly high rate of charges affirmed.
A high affirmation rate can be due to something other than bias. In an article forthcoming in the Florida Law Review Forum, I argue that the FTC’s and COI’s high affirmation rates are due largely to prosecutorial selectivity. The systems’ prosecuting entities only bring charges they feel are nearly sure to be affirmed. And they are.
I also propose a solution to the COI’s alleged “rubber stamp” role: actually increasing the number of cases the committee hears. The COI’s importance cannot be understated—former COI member Gene Marsh described it as “the thousand-pound gorilla”—especially given the pause on referrals to the Independent Accountability Resolution Process, which until recently provided an alternate means for resolving infractions cases. COI decisions provide coaches and administrators with insight on compliance expectations. The clarity these decisions offer is especially important due to the current confusion on the application of the NCAA’s interim name, image and likeness policy,
NCAA member universities recently approved the association’s first major constitution revision in 25 years and committed to creating new policies and procedures for enforcing NCAA rules. Thus, an opportunity exists to increase the under-resourced enforcement staff’s size. Ideally, the added staff will include additional former coaches and compliance personnel, in keeping with the intention that the infractions process is peer reviewed. These additions would enable the enforcement staff to aggressively investigate cases. Although the idea of increased cases might be initially unpopular, more cases will mean more COI decisions establishing compliance expectations, which actually benefits college athletics greatly.
Josh Lens, a former attorney and college athletics administrator, is an assistant professor of recreation and sport management at the University of Arkansas.
