SPEAKERS CONTENTS INSERTS
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95–802 PDF
2004
DUE PROCESS AND THE NCAA
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
SEPTEMBER 14, 2004
Serial No. 106
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
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JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ADAM B. SCHIFF, California
PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
MINDY BARRY, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
SEPTEMBER 14, 2004
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
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The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Spencer Bachus, a Representative in Congress from the State of Alabama
WITNESSES
Mr. Jeremy Bloom, U.S. Olympic Skier and former University of Colorado Football Player
Oral Testimony
Prepared Statement
Ms. Jo Potuto, Vice Chair, NCAA Committee on Infractions
Oral Testimony
Prepared Statement
Mr. B. David Ridpath, Assistant Professor, Sport Administration, Mississippi State University
Oral Testimony
Prepared Statement
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared statement of Professor Gary R. Roberts, submitted by Chairman Chabot
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Letter from the NCAA to the Honorable J. Randy Forbes, a Representative in Congress from the State of Virginia
APPENDIX
Material Submitted for the Hearing Record
Prepared statement of the Honorable Tom Osborne, a Representative in Congress from the State of Nebraska
Prepared statement of witness B. David Ridpath, Assistant Professor, Sport Administration, Mississippi State University
Submissions from the Honorable Spencer Bachus, a Representative in Congress from the State of Alabama
Letter and responses from the NCAA
Letter and complaint from Furnier Thomas LLP, submitted by Chairman Chabot
DUE PROCESS AND THE NCAA
TUESDAY, SEPTEMBER 14, 2004
House of Representatives,
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Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:30 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. Committee will come to order.
We are going to try to move this hearing along today, because we have an 11 o'clock bill that is being taken up on the floor which many Members of the Judiciary Committee will be involved in. So we are going to move this testimony along today.
Mr. Scott, I was mentioning, at 11:00, we have this—this Committee has a bill that we are going to be involved with on the floor.
I want to thank all the Members for being here. I'm Steve Chabot, the Chairman of the Subcommittee on the Constitution.
The NCAA is a voluntary organization comprised of some 1,200 member schools from 50 States. Many of these member institutions are public colleges and universities. The NCAA's goal is, quote, to initiate, stimulate and improve intercollegiate athletic programs for student-athletes, unquote. To this end, the NCAA conducted 87 championships in 22 sports across three divisions in the 2002–2003 school year. That year, over 375,000 student-athletes competed in NCAA sports.
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One way the NCAA serves to initiate, stimulate and improve intercollegiate athletics is by passing—and enforcing—rules to ensure the integrity of the sports experience. The rules, which are promulgated by its member institutions, govern, among other things, recruiting, amateurism and academics. The rules are published in each division's bylaws. The Division I bylaws for 2004–2005 consists of some 457 pages. The NCAA enforces these rules with its own paid professional staff and a voluntary Committee on Infractions, which is comprised of representatives from its member institutions.
The details of how the NCAA enforces its rules are quite complicated, and we are very fortunate to have Jo Potuto, Vice Chair of the NCAA's Committee on Infractions, here today to explain how the rules work in practice. In brief, infractions are divided into major and secondary violations, and the amount of procedure to which an institution, coach or student-athlete is entitled depends on the category of infraction in which the violation falls. Additionally, student-athletes who are found to be ineligible for any reason are subject to the NCAA's reinstatement process if they want to regain their eligibility to play college athletics.
Let me state at the outset what this hearing is not about. It is not about the wisdom of any particular NCAA substantive rule. Nor is it about the NCAA's authority to enforce its rules. The NCAA provides a valuable function in policing collegiate athletics, and we are not here to relitigate any particular decision that the NCAA has made. This hearing is about fairness, particularly the fairness the NCAA displays in enforcing its rules. Merited or not, the NCAA has at least the perception of a fairness problem. Evidence of this is found in newspapers, such as stories regarding the NCAA's decision not to restore eligibility to Jeremy Bloom, who is with us today, and Mike Williams. It is found in courtrooms, where two former Alabama assistant coaches have sued the NCAA for alleged violations of procedural due process. It is also found in State legislatures, such as the State of Nevada, which passed statutes providing particular due process rights for NCAA investigations conducted within their States. And it is found in the NCAA's own 1991 study conducted by former Solicitor General Rex Lee, which proposed 11 recommendations the NCAA should undertake to improve fairness in its procedures.
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It has been 13 years since Congress last examined the procedures that the NCAA uses to investigate and enforce its rules. In that time, the NCAA has made several changes, most notably the addition of a more robust appellate system for infraction cases, that have provided greater protections for member institutions, coaches and student-athletes. However, the NCAA has failed to take action on several recommendations of its own 1991 study, most notably, those relating to the hiring of independent judges to hear infractions cases and the opening of these proceedings to all. This hearing will examine those recommendations and the NCAA's decisions not to implement them. We will also examine the investigated individual's role in the process and their ability to participate fully in it. And we will examine the NCAA's restitution rule, which punishes member institutions in the event that student-athlete initiated litigation is ever resolved in favor of the NCAA.
I would like to thank Congressman Bachus for requesting this hearing and also Congressman Osborne for his interest in this area.
I am sure that many of us will look to Tom Osborne for guidance in this particular area as Congressman Osborne is uniquely qualified, having coached for 36 years the Nebraska Cornhuskers football team, I might note taking his team to a bowl every season and averaging 10 wins per season. So Congressman Osborne is someone we all look to around here when it comes to college athletics.
I would also like to thank the NCAA for their cooperation with our staff for this hearing and for their willingness to appear before the Subcommittee to discuss their procedures. Finally, I appreciate—we all appreciate our other witnesses' attendance here this morning, and we look forward to hearing from all of our witnesses. And I would now yield to the gentleman from New York, the Ranking Member of the Subcommittee, Mr. Nadler.
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Mr. NADLER. Thank you, Mr. Chairman.
Mr. Chairman, I want to thank the witnesses for coming here on such short notice. I had not realized that issues involving the NCAA enforcement procedures is such an urgent matter. I had not realized that the procedures of the NCAA came within the jurisdiction of the Subcommittee on the Constitution.
Now due process does fall under the jurisdiction of this Subcommittee, but that is generally due process by the United States Government, not due process by a private organization, such as the NCAA. Perhaps, however, it does come under the jurisdiction of this Subcommittee, because I know in many communities college sports are the nearest thing we have to an established religion.
I would hope in the last few weeks of this Congress our Subcommittee will be able to make time for some other pressing issues that plainly implicate the constitutional rights of millions of Americans. For example, I know that our colleague, the gentleman from Virginia, has been working with the majority in this Committee for some time trying to get an oversight hearing on the extent to which the Department of Agriculture, despite a consent decree, is still violating the rights of African-American farmers and forcing some of them off their land.
I would also hope that we could take time from our busy schedule to examine whether citizens are being stripped of their right to vote.
I wouldn't even object if the Bush Justice Department could answer our questions from the March 2 oversight hearing on the Civil Rights Division or if we could get the overdue report from the privacy officer at the Department of Homeland Security, an office this Committee established.
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I hope that the chairmen of this Subcommittee and of the Committee will agree to work with the minority on some of these issues, and perhaps we can agree that these are issues that deserve consideration and time before the playoffs.
I apologize to the witnesses before this Subcommittee. Unfortunately, in the crush of business at the end of this Congress, matters such as funding the Federal Government, reform of our intelligence agencies and other matters, I will not be able to stay for most of the hearing. I know this is an important issue to many sports fans. I have the testimony, it will receive my attention, but I apologize for not being able to stay for most of the hearing.
Mr. CHABOT. Thank you. I am not going to respond to everything you said, but relative to the issue of the black farmers, there is a hearing set for September 28.
Mr. NADLER. I am glad to hear it.
Mr. CHABOT. The gentleman from Alabama, Mr. Bachus, is recognized for the purpose of making an opening statement.
Mr. BACHUS. Thank you, Mr. Chairman.
If you go back to the Magna Carta, 1215, the principle of due process was first at least discussed openly in England and embodied in the Magna Carta. Over the next several hundred years, certain things became basically acceptable. One of those things was open hearings. When people were deprived of their freedom, their property, an open hearing was granted.
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Some of you may have heard of the star chambers in England. Our NCAA representative teaches constitutional law at the University of Nebraska. The star chambers were originally—sessions were open to the public. However, under Charles I and other kings, they began to misuse their power, abused their power, and one of the first things they did was to take away the public hearings. They explained that away by saying it was expedient and saved time, and also it was too much trouble to allow the public to come in.
If you look at the Supreme Court decisions—and I have several which I will submit for the record—but the Supreme Court makes it clear that not only in criminal procedures but in civil procedures, that our citizens should enjoy due process. They talk about independent triers of the fact, public hearings, right to confront the witnesses and know the witnesses against you, that those should apply in all civil matters of importance as well as criminal matters.
How does that apply to the NCAA, a, quote, so-called volunteer organization? Well, first of all—and I have heard the Chairman and others talk about a voluntary organization. I think that anybody that has studied the NCAA readily realizes that the athletes are not members nor are they invited to be members, but the great number of decisions affect more athletes than anyone else. Athletes are not members, and they have no input, but they are controlled.
In fact, that is why the Harvard Business School said that the number one monopoly in America is not Microsoft, is not Wal-Mart, is not the West Coast Longshoremen's Union, not the post office, it is not even OPEC. They said it is the NCAA, which has total power and abuses that power. They also said this, that the NCAA—with the NCAA in charge, the student remains poor. With the NCAA in charge, the student remains poor. They talk about the NCAA trying to maintain the high ground but not doing a very good job of it.
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And they pointed out, as did the NCAA—and this is maybe my last poor point and the main point of this hearing—the NCAA itself looked at their procedures. They assembled a Supreme Court judge, a solicitor general, former attorney general, several law school professors, and they studied how can we better improve our system of enforcement.
I am going to submit three articles from 1991 and 1992. They agree that two things they ought to do—and this was their own committee. They agreed they ought to have public, open hearings. And I can cite from Justice Marshall numerous—over 100 Supreme Court cases that talk about the importance of letting the sunshine in. And you will see the explanation of the witness for the NCAA and the reason that she gives for not having open hearings, which is a rather unusual reason. But they said that. They said they ought to have the right to confront witnesses and, most importantly—and the cases are very clear on this—an impartial trier of the fact.
Well, you know, these 1991 and 1992 articles say the NCAA is going to adopt those and going to take the pressure off of them from congressional hearings, court hearings, legislatures, the public, which has demanded these things. Guess what? They didn't do it. According to USA Today, the two most important reforms they have failed utterly to do. And who has been victimized by this? It is the student-athlete. You will hear from one of them today.
And I can tell you, the longer you study this, you realize that the NCAA and sometimes the member institutions trade off and those that lose are those without power, the coaches and, more often than the coaches, the athletes who are victimized by this system. Four hundred and eighty-five billion dollars a year in revenue goes into the system, yet the NCAA says it cannot afford to give due process, something that our common law tradition has been with us for hundreds of years. But that tradition is not in NCAA.
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With that, Mr. Speaker, I yield back any time that I have.
But I also think that Tom Osborne does have one good suggestion here that he makes to this Committee and that is let's do something for the athletes. A lot of the problems with these cases is that the athletes are given scholarship money but not money to live on. And as the Harvard business school says and as the NCAA has said, most of these students are very poor and it is very hard for them to even pay for their cost of living. Yet the NCAA has really led the fight against a lot of things for athletes, including compensating them at least for their living expenses.
Mr. CHABOT. The gentleman's time has expired.
I would note that Congressman Osborne just entered the room. He missed all the flattering comments that I made about him, unfortunately. But, in any event, we are happy to see you here today.
Any minority Members who want to make a statement?
If not, any opening statements could be made part of the record.
We would like to turn to our witnesses for today's hearing. Our first witness is Jeremy Bloom, a U.S. Olympic skier and former University of Colorado football player. Mr. Bloom has been a member of the U.S. Olympic ski team since he was 15-years-old and represented the United States at the Salt Lake City Winter Olympics in 2002. He is the youngest person to win the world grand prix title and the first American to win a world championship gold medal in mogul skiing. Mr. Bloom is also a gifted football player and holds a number of receiving, punt return and kick return records at the University of Colorado.
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Our second witness is Josephine Potuto, Vice Chair of the NCAA's Committee on Infractions and Richard H. Larson Professor of Law at the University of Nebraska College of Law. Ms. Potuto earned her Bachelor's degree from Rutgers Douglas College and her J.D. at the Rutgers College of Law in 1974. In 2003, Ms. Potuto was selected to be on the NCAA's Division I Management Council, the chief administrative and legislative body of Division I. She is in her sixth year as a member of the Division I Committee on Infractions and her second as committee Vice Chair. At the University of Nebraska, she teaches courses on constitutional, procedural and criminal law as well as a course in sports law.
Our third witness is Dr. B. David Ridpath, Assistant Professor of Sport Administration at Mississippi State University. Dr. Ridpath is the former compliance officer at Marshall University in West Virginia.
Our fourth and final witness was to be Gary R. Roberts, Deputy Dean and Director of the Sports Law Program at Tulane Law School. Unfortunately, because of Hurricane Ivan and the fact that it has veered close to New Orleans, Mr. Roberts had to cancel at the last moment. He has submitted written testimony, however, which will be put into the record.
[The prepared statement of Mr. Roberts follows:]
PREPARED STATEMENT OF GARY R. ROBERTS
I want to thank the Subcommittee for allowing me to share my views on a matter of significance and importance to many of America's institutions of higher learning, to hundreds of athletic coaches and thousands of student-athletes at those institutions, and to millions of fans of the athletic teams of those institutions—the procedures that the National Collegiate Athletic Association (NCAA) should be required to employ in its enforcement processes.
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By way of introduction, I have been involved in litigating, teaching, speaking, and writing about sports legal issues for about 28 years. Since 1983 I have been a professor of law teaching primarily sports law, antitrust, business enterprises, and labor law at Tulane Law School, where I founded and currently direct the nation's first sports law certificate program. I was from 1995–97 the president of the Sports Lawyers Association, a 1,100-member organization of lawyers who work for or represent sports industry clients, on whose board of directors I have served since 1986. I am also the editor-in-chief of the SLA's on-line monthly newsletter, The Sports Lawyer. I often speak at sports law conferences, have written several major law review articles and two book chapters on sports legal matters, and along with Professor Paul Weiler of Harvard Law School I have coauthored the leading sports law textbook and supplement used in American law schools, Sports and the Law, published by The West Group (formerly West Publishing Company), now in its third edition. I also regularly work with and am frequently cited by the print and broadcast media on sports legal issues, and I have authored several columns in publications of wide general circulation. This is the ninth time I have appeared before a congressional committee in the last 12 years on some aspect of sports, including college sports.
Perhaps even more relevant, I am and have been for 12 years Tulane University's faculty athletics representative. In this position, I am deeply involved in a wide range of matters involving the governance and operation of both Conference USA and the NCAA as well as Tulane's compliance with NCAA rules. I have over the years served on a variety of committees within both organizations, and currently I am a member of the NCAA's Division I Academics, Eligibility, and Compliance (AEC) Cabinet. I have also become quite familiar with the NCAA's enforcement procedures by having been involved in infractions cases involving Tulane University as well as by having represented clients before the NCAA Infractions Committee. Thus, I have a great deal of both academic knowledge of and practical experience with the NCAA enforcement process.
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It must be emphasized, however, that while my positions described above give me a familiarity with, and a variety of perspectives on, the matter before the Subcommittee today, I speak here only as an individual. I am not authorized to speak for or to represent Tulane University, Conference USA, the NCAA, or the Sports Lawyers Association, and the views I express here are mine alone.
I should make one additional preliminary comment. My testimony today focuses only on the process and procedures employed by the NCAA to deal with alleged violations of NCAA rules by member institutions or their employees or ''representatives''—the so-called enforcement process. This, however, is only one aspect of the NCAA's overall governance effort. Processes and procedures are followed in a number of other contexts that are also crucial to the operation of the NCAA, and these too can sometimes be very highly publicized and controversial. For example, there are mechanisms for NCAA member institutions to seek and to appeal staff interpretations of NCAA rules; to request waivers of initial or continuing-eligibility rules; to petition for the reinstatement of athletes who have lost their eligibility (like in the recent highly publicized cases of Division I-A football players Jeremy Bloom from the University of Colorado and Mike Williams from the University of Southern California); to review positive drug tests and to appeal penalties for doping violations; or to seek a waiver for extraordinary circumstances from any of the thousands of NCAA rules. The procedures for each of these types of proceedings differ, and each at one time or another has been criticized for being too rigid or unfair.
I refer the Subcommittee to an article in which I have summarized these various NCAA processes,(see footnote 1) although some procedures described therein have since been modified. To study and critique each of these processes here would require more time and space than is available. My understanding is that the Subcommittee's primary interest today is in the NCAA's enforcement process, and thus it is on that to which my attention is directed here. Nonetheless, many of my general comments and conclusions about the enforcement process are equally applicable to all or most of the other NCAA governance processes as well.
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I. THE NCAA'S ENFORCEMENT SYSTEM AND PROCESSES: A SUMMARY OF CONCERNS
The NCAA's enforcement process and procedures for dealing with alleged institutional infractions of its rules are set forth in Articles 19 and 32 of its By-Laws. A brief summary of this system is useful to understand the peculiarities of how it works and what might trouble critics of that system. While almost all of the attention and criticism of the enforcement process relate to the way the system handles what are called ''major infractions,'' it is important to understand that such major infractions constitute only a small percentage of the total violations of NCAA rules by member institutions, their staff members, or athletics ''representatives.''
The vast majority of what the NCAA rules define as ''secondary infractions'' (minor breaches that do not give a violating institution any competitive or recruiting advantage(see footnote 2)) are initially discovered by the institution itself, self-reported to the school's conference and the NCAA enforcement staff, and resolved administratively with minor penalties like reprimanding the offending coach or making anyone who received a small impermissible benefit repay it. There are dozens of such ''technical'' infractions committed by every Division I institution every year, but they have little impact on the system and attract virtually no public attention. They also virtually never give rise to any legal issues or controversy.
The far more significant rules violations, the so-called ''major infractions,'' however, often attract great public attention, involve significant consequences for the offending institution, and give rise to substantial factual and legal disputes. In this arena, so much is often at stake that there is today a cottage industry of lawyers who make a fine living doing nothing but representing member institutions in major infractions cases.
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The process is commenced when the NCAA enforcement staff is made aware of a possible major rules violation.(see footnote 3) This awareness may come from many sources, including the institution itself or the news media, but more often it comes either from a ''tip'' from someone affiliated with another institution or from an athlete involved in the violation who has had a falling out with the coach or school and ''turns state's evidence'' in retaliation.(see footnote 4) Regardless of the source of the information, if the enforcement staff believes after some evaluation and effort to corroborate the information that there is sufficient suspicion to take the matter further (i.e., ''reasonably reliable information'' that a violation has been committed), it will notify the CEO of the suspected institution in what since last year is called a ''Notice of Inquiry'' (an NOI—see By-law Art. 32.5) and commence a more formal investigation (NCAA By-law Art. 32.2), frequently by dispatching an investigator to talk to potential witnesses and seek any documentation that might shed light on the allegations. It may also ask the target institution to investigate the situation and make a report of its own internal findings. Once the enforcement staff has made whatever inquiry it believes is appropriate, it will decide whether there is sufficient cause to issue a second notice of specific rules violations, called a ''Notice of Allegations'' (an ''NOA''—see By-law Art. 32.6). It should be noted that this system of two notices at increasing levels of enforcement staff confidence in the validity of the accusations is new, having been adopted in 2003. Previously, a more thorough investigation was conducted before any formal notice was given to the institution, which, if the evidence warranted it, was then followed by an ''official letter of inquiry'' (OLI) to the target institution. While there is little experience with the new dual notice process, it appears that in this new system the Notice of Allegations is roughly the procedural equivalent of the old OLI—somewhat akin to a criminal indictment.
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Of course, if an NOI, or in turn an NOA, is not issued, the matter is dropped, at least for the time being. If both an NOI and then an NOA are issued, the process becomes much more formal and significant.
An institution receiving an NOA is in trouble. I have asked various former members of the NCAA enforcement staff and the Infractions Committee if there has ever been an institution that after receiving an OLI (which appears to be the rough equivalent of the new NOA) was subsequently exonerated entirely. The response I have always received leads me to conclude that while it is theoretically possible for an institution to survive receipt of an NOA (previously an OLI) with complete exoneration, no one can ever remember it happening. And if it has, it was a freak occurrence. The reality is that any institution receiving an NOA will be found guilty of some violation. Thus, an institution given official notice of allegations (i.e., ''indicted'') by the NCAA enforcement staff is in a very different position than many criminal defendants in a public court. The ultimate goal for the institution is virtually never to seek exoneration, but rather to convince the Committee on Infractions to impose the lightest possible penalties, often by confessing guilt, blaming the violation on an ''out of control'' coach or booster with whom it has severed its relationship, and imposing some penalties on itself that it thinks will be enough to satisfy the Committee.
Once an institution has completed the required internal investigation and has submitted its written report, the institution is scheduled for a hearing before the Committee on Infractions. Each NCAA Division has its own committee (which is really a quasi-judicial tribunal, not a committee in the usual sense of that word). Of course, the cases receiving the most attention arise in Division I, whose ten-member committee today is chaired by Thomas E. Yeager, the commissioner of the Colonial Athletic Association.(see footnote 5)
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At the Committee on Infractions hearing, the institution is entitled to representation by legal counsel, as is any allegedly implicated current or former coach and/or student-athlete (what the NCAA calls an ''involved individual''—see By-law Art. 32.1.5). The hearing is closed and no one is allowed in the hearing room except the NCAA enforcement staff, a few representatives of the accused institution and its lawyer,(see footnote 6) and any involved individuals and their lawyers. In the interests of saving time, hearings are limited to a few hours on a single day. First, the staff makes its presentation to support its NOA, and then each ''defendant'' is allowed to present a position. No witnesses are allowed except the NCAA staff, individuals representing the institutions, and directly affected coaches and student-athletes. Thus, third persons making the accusations or those who the ''defendants'' claim could exonerate them are not permitted to appear or to present testimony. Neither are third parties who may be implicated in the NOA as participants in the violations. Indeed, no one gives ''sworn testimony.'' ''Testimony'' of third parties is given to the committee only through hearsay (or often multiple hearsay) oral reports, written transcripts, and accompanying written statements. Thus, because most of the people with personal knowledge of the relevant facts are not permitted to attend, cross-examination of ''witnesses'' is not possible. Rules of evidence are not followed, and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.(see footnote 7)
Another way in which the proceeding is unlike a normal judicial case is that the committee is not limited to finding violations that are alleged in the NOA. If during the course of the hearing, the committee finds evidence of violations not listed in the NOA, it may rule that such violations have been committed without the institution being given the opportunity to investigate or to prepare to rebut such alleged violations and without the individuals affected by the ruling being notified or consulted. This offers yet another reason why, unlike a criminal defendant, institutions might feel constrained from aggressively seeking to use all possible objections and tactics to avoid any penalties—even in the unlikely event it proves that the charges in the NOA are without merit, there can still be a price to pay, especially if the committee becomes put off by overaggressive posturing or believes that the institution does not display a sufficiently cooperative or contrite attitude.
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After the hearing, the Committee on Infractions issues its written findings and imposes penalties. At this point the institution can either accept the decision and penalties of the Committee on Infractions or it may appeal to the five-member Infractions Appeals Committee, which in Division I is currently chaired by Terry Don Phillips, director of athletics at Clemson University.(see footnote 8) Since its inception in the early 1990s, this committee has been surprisingly independent and assertive in reversing some Committee on Infractions findings and reducing penalties, although it has never exonerated an institution that the Infractions Committee has found to have committed one or more violations. This has undoubtedly had a significant influence on the Committee on Infractions, whose unfettered discretion is now subject to meaningful oversight and possible reversal.
The Infractions Appeals Committee's decision is final and unappealable to any further body within the structure of the NCAA (see By-law Arts. 32.11.4 & 32.11.5).
This NCAA enforcement process has come under much criticism, much of it understandable, yet generally unjustified. Examples of aspects of the enforcement process that have come under such criticism include the following:
In almost every case, the incriminating evidence against the accused institution and individuals is presented to the Infractions Committee through narrative accounts by the enforcement staff, backed up by written transcripts of interviews and signed statements. The first-hand witnesses, including the ''accusers,'' are not allowed to attend the hearing or to give testimony even if they want to, no matter how crucial their testimony is to the case. Thus, the accused institution and involved individuals have no ability to confront or to cross-examine the witnesses against them, or to present witnesses in their defense. Audio or video tape recordings of the interviews of first-hand witnesses are not allowed to be played at the hearing so voice inflection, body language, or even context cannot be evaluated by the Infractions Committee.
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Although the incriminating evidence against the accused institution and involved individuals is presented in an oral report by an enforcement staff investigator, counsel for the ''defendants'' do not have a right to ask questions directly of (i.e., cross-examine) even that investigator.
Although there is a four-year statute of limitations (see By-law Art. 32.6.3), the exceptions to the rule effectively eviscerate it.(see footnote 9) Thus, penalties are often handed down many years after the violation and frequently end up adversely impacting primarily coaches and student-athletes who were not at the institution at the time of the violations and are innocent of any wrongdoing.
The Committee on Infractions is allowed to find violations of rules and impose penalties even for transgressions that were not alleged in the NOA. Thus, institutions, coaches, or student-athletes can be found to have violated rules with serious adverse consequences even though they have been given no notice of any such charge against them and have not had any opportunity to investigate or to prepare a defense. I have no data as to how often this actually occurs, but the mere possibility that it might can and does at least occasionally deter ''defendants'' from defending the charges in the NOA as vigorously as they might.
An institution's or a staff member's failure fully to self-report any violation that they knew or should have known about (i.e., to turn yourself in) and that the enforcement staff subsequently determines occurred is itself considered a breach of the rules that can compound the severity of the penalty imposed.(see footnote 10) Thus, the notion embedded in the Fifth Amendment of the U.S. Constitution that a person does not have to incriminate himself is given no recognition in the NCAA enforcement process.
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A school that allows an athlete to play in an athletic contest pursuant to a court order requiring it to do so, but the athlete is later determined by the courts and the NCAA to have been ineligible, may still be penalized by the NCAA's Division I Management Council in any of a variety of substantial ways ''in the interest of restitution and fairness to competing institutions.''(see footnote 11) This remarkable procedure, under which an institution can be severely penalized for doing only that which a court has ordered it to do, has nonetheless been employed on several occasions and has been found by the courts to be a lawful exercise of regulatory authority for a sports governing organization.(see footnote 12)
Other examples could be cited. It is sufficient here simply to make the point that in many significant ways the NCAA enforcement process employs methods or procedures that seem quite at odds with basic rights of accused individuals or notions of fundamental fairness that Americans have come to take almost for granted—rights involving due process, equal protection, privacy, freedom from unreasonable searches and seizures, the right to confront one's accuser, the right not to be forced to incriminate oneself, and perhaps others. This fact, however, does not necessarily lead to any overall conclusion about the reasonableness of the NCAA's process or whether Congress or the courts should as a policy matter impose greater requirements on the NCAA. My own view, which I will expand on more in Part III of this statement, is that while the government should strongly encourage the NCAA to invest substantially more of its immense financial resources into creating a more substantial and more professional enforcement process, it would be unwise and do far more harm than good to impose traditional notions of fairness appropriate for the criminal justice system on the NCAA.
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II. CURRENT LEGAL CONSTRAINTS ON THE NCAA'S ENFORCEMENT PROCESS
Prior to the early 1980s, the NCAA was generally considered to be a state actor and thus its rules and actions were subjected to judicial review under traditional constitutional standards. Usually, the NCAA was able successfully to persuade courts that its procedures were adequate under due process standards,(see footnote 13) or that the rights being asserted by plaintiff athletes were not constitutionally protected property rights in the first place.(see footnote 14) Occasionally, the courts found that eligibility to play college sports was a protected property right and that the NCAA had failed to meet constitutional safeguards,(see footnote 15) but this was the exception. However, after the Supreme Court's ''state action'' trilogy in 1982,(see footnote 16) the Fourth Circuit clearly reversed course in Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir. 1984), by holding the NCAA to be a private actor immune from constitutional attack in a case brought by a prospective student-athlete at Duke University, a private institution. But even after Arlosoroff, many still believed that this view was either an aberration or was limited to cases involving only private universities.
The Supreme Court put an end to this confusion in 1988 in the highly publicized case of NCAA v. Tarkanian, 488 U.S. 179 (1988). In a 5 to 4 decision written by Justice Stevens(see footnote 17) in a case involving NCAA disciplinary action for numerous major infractions by University of Nevada at Las Vegas men's basketball coach Jerry Tarkanian, the Supreme Court held that the NCAA was not a state actor and thus was not subject to having its rules or decisions challenged for alleged violations of constitutional due process (and logically of equal protection, free speech, unreasonable searches and seizures, privacy, and all other rights provided for in the Bill of Rights of the U.S. Constitution). Because the case involved an employee of a state university, the scope of the Tarkanian ruling was sweeping, and since then it has been universally accepted that NCAA rules and conduct are beyond the reach of the U.S. Constitution.(see footnote 18)
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The Supreme Court reaffirmed this ruling in 2001 in Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288 (2001), another 5–4 decision,(see footnote 19) even though ironically the majority there held that a state high school athletic association whose membership was 84% public high schools was a state actor and could be challenged for violating a member school's First Amendment free speech rights. Justice Thomas' dissent argued that ''it [was] not difficult to imagine that application of the majority's entwinement test could change the result reached in [Tarkanian], so that the National Collegiate Athletic Association's actions could be found to be state action'' (see id. at 314, fn.7). However, writing for the majority, Justice Souter expressly adopted the holding and reasoning in Tarkanian, distinguished the two cases, and reaffirmed that the NCAA was not a state actor and its actions not subject to constitutional review (see id. at 297–98). Thus, the narrow 5–4 holding in Tarkanian was expanded and entrenched since all nine justices in Brentwood Academy took the view that the result in Tarkanian was intact and correct.
In addition to being immune from attack under the U.S. Constitution, the NCAA is apparently also immune from state constitutional or statutory provisions establishing due process and other similar constitutional-like protections. Shortly after Tarkanian, at least four states (Nevada, Nebraska, Illinois, and Florida) adopted legislation that specifically required the NCAA to grant various degrees and types of due process to individuals and institutions accused of violating NCAA rules.(see footnote 20) When in 1990 the NCAA received information that Jerry Tarkanian had again violated its rules and Tarkanian in turn demanded in a letter that he be given a number of procedural rights not provided for under the NCAA's rules, including access to a number of documents, the NCAA challenged the Nevada statute in a declaratory judgment action filed in Las Vegas. Both the District Court and in turn the Ninth Circuit, relying on several cases that had struck down state laws designed to regulate professional sports leagues,(see footnote 21) held that it violated the Dormant Commerce Clause of Article II of the U.S. Constitution for a single state to attempt to set the standards for NCAA rules and procedures when those rules and procedures necessarily have to be applied uniformly nationwide, as most NCAA rules do due to the inherent nature of the athletic competition activity that it regulates. Accordingly, Nevada's statute (and of course the other states' as well, assuming their circuits would agree with this ruling) was held to be unconstitutional and could not be enforced against the NCAA.(see footnote 22) See NCAA v. Miller, 795 F.Supp. 1476 (D. Nev. 1992), aff'd, 10 F.3d 633 (9th Cir. 1993).
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Thus today, after Tarkanian, Brentwood Academy, and Miller, it seems reasonably clear that, except to the limited extent federal legislation might apply,(see footnote 23) the NCAA's enforcement process and procedures are unconstrained by either federal constitutional or state law. Thus, the question for Congress to consider is whether it would be appropriate for new federal legislation to impose any procedural requirements on the NCAA, and if so, what those requirements should be.
III. THE IMPLICATIONS OF IMPOSING STRICTER PROCEDURAL REQUIREMENTS ON THE NCAA ENFORCEMENT PROCESS
In order fully to understand and appreciate the NCAA's process and procedures for enforcing its complex array of substantive rules governing eligibility, recruiting, academic standards, and amateurism (the ''enforcement process''), it is first necessary to understand the larger culture in which those procedures exist and operate. The NCAA enforcement process is simply the mechanism for enforcing the substantive rules that govern intercollegiate athletics, and it can only be understood in the context of that underlying ''law.'' The degree of difficulty of enforcing these rules cannot be overstated, in significant part because the idealized purpose and vision of intercollegiate athletics that the NCAA's substantive rules purport to preserve stand in stark contrast to the commercial market realities that dictate the priorities and create the behavioral incentives for those operating within this system. In other words, the market-driven commercial and psychic incentives for coaches, athletic administrators, boosters, and even university presidents and faculty to ''cheat'' are enormous. In such an environment, where the urges of so many within the system to violate the rules are great, yet the ''law enforcement powers'' of the entirely private organization entrusted with enforcing those rules are very limited, it requires extraordinary authority, vigilance, and aggressiveness to prevent wholesale disregard for the ''law,'' chaos, and eventually the deterioration of the system itself.(see footnote 24)
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It should be noted that for purposes of my testimony today, I am specifically focusing on Division I-A football and Division I men's basketball. I am aware that the vast majority of college athletes do not play for NCAA Division I member schools, and that even in Division I the vast majority of athletes do not play I-A football or I men's basketball. But to a greater or lesser extent, the overwhelming majority of these thousands of student-athletes in all of their various sports roughly resemble the amateur ideal of the student-athlete that the NCAA is entrusted to preserve, and while there are still some psychic, reputational, and even financial incentives for coaches and others in these other sports and divisions to violate the rules, they exist at a much lower level with very little commercial or public influence. Thus, a great majority of the serious violations of NCAA rules, of the time and effort of the NCAA's enforcement staff, and the public and media attention on infractions occurs in the two sports of I-A football and I men's basketball. And it is not mere coincidence that these two enormously commercialized sports generate a huge percentage of intercollegiate athletic revenues. If it were not for I-A football and I men's basketball, the process and procedures that we are discussing today would be little noticed, would probably work well without controversy, and would draw no interest from Congress. So it is on I-A football and I men's basketball that I focus here.
As I have often said and written before, the intercollegiate sports ''industry'' is a peculiar animal. On the one hand, the statement of the NCAA's ''Fundamental Policy'' claims that:
The competitive athletics programs of member institutions are designed to be a vital part of the educational system. A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.(see footnote 25)
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On the other hand, multi-billion dollar television contracts for the Division I men's basketball tournament (known as ''March Madness''), over $15 million payouts to each team participating in a Bowl Championship Series football game every year, and the frequent revelations of academic cheating, paying athletes and their families, using sex and drugs to recruit, criminal rap sheets, and illiterate ''student''—athletes suggest a very different reality. Division I-A football and I men's basketball are big business, and the economic, morale, and public relations consequences for an institution of success or failure on the field or court are substantial. Winning head football and men's basketball coaches today routinely make millions of dollars,(see footnote 26) whether or not most of their players fail to graduate, commit major crimes, or can even read or write. On the other hand, it is generally accepted and understood that a coach who loses too many games will soon find himself unemployed no matter how successful he is in running a ''clean'' program.
Thus, with so much at stake, there are enormous incentives for ''revenue sport'' coaches and others to do as much as possible to gain a competitive advantage, even if that means breaking an NCAA rule. There is no doubt that the incentives to cheat are great, the opportunities to cheat are numerous, the likelihood of getting caught appears to be fairly small, and every institution is suspicious that its competitors are ''getting away with something'' and thereby gaining some competitive advantage. It is this environment that the NCAA is charged with adopting and enforcing its complex set of rules designed to preserve the ideal of the amateur student-athlete. This is obviously no easy task.
The task is made even more difficult by the fact that the NCAA is a private organization, and thus it lacks the authority to employ important investigative and prosecutorial techniques available to public law enforcement and criminal justice authorities. It has no power to compel individuals to provide information. It cannot subpoena witnesses to attend depositions or hearings. It cannot hold individuals in contempt for not complying with its procedural rules or requests. It cannot impose fines or imprison individuals who violate the rules or lie. It cannot arrest or detain anyone. It cannot grant anyone immunity from criminal prosecution should his ''testimony'' reveal illegal activity. In short, as a purely private membership organization, the NCAA must rely entirely on the voluntary cooperation of those who have relevant information to provide that information, and its only ''power'' is the ability to withhold or condition the benefits of membership.
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Thus, the NCAA enforcement process necessarily must try to carry out its mission in an environment in which the deck is heavily stacked against it. Furthermore, it is critical to recognize that, just like with any public criminal justice system, no process for ascertaining facts, determining guilt, and handing out punishment is perfect. Even with our criminal justice system and all of its constitutional protections for defendants, we often read about convicted ''criminals'' being released from prison, sometimes from death row, after many years of incarceration because new evidence has established their innocence. Over the years many people have been falsely accused and often convicted of crimes that they did not commit, just as many guilty individuals have escaped justice. Thus, it is pointless to ask if the NCAA's system is imperfect, for it inevitably is and will be. No matter how much power is entrusted to enforcement authorities and how few protections are given to the ''accused,'' some who are guilty will escape; and no matter how many rights are guaranteed, some who are innocent will be unjustly accused and perhaps even found guilty. Rather, the appropriate question is how should the NCAA structure its process to minimize both the false positives (those wrongfully accused or found guilty) and the false negatives (those guilty of violations who escape punishment), and thereby deter further wrongdoing, while maintaining an acceptable balance between those two undesirable but inevitable dysfunctions.
In that context, I emphasize two points. First, like the Lee Commission over a decade ago,(see footnote 27) I believe that there are things the NCAA can do to improve the fairness, or at least the appearance of fairness, of its enforcement system, provide greater procedural protections for institutions and involved individuals, and reduce the chances of a false positive without seriously undermining its ability to enforce its rules effectively and thereby deter even more rampant misconduct. This, however, would require that the NCAA invest additional resources in its enforcement system, as I will urge and explain shortly. But with billions of dollars flowing through Division I college athletics, the level of expenditure needed to upgrade the enforcement process to an appropriate level would be a relatively tiny investment in order to achieve fairness, justice, and public confidence in the system.
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That said, however, I also am firmly convinced that while some of the procedures employed by the NCAA seem rather severe and out of step with traditional American notions of due process and fairness, in fact the NCAA's enforcement process is remarkably accurate. It seldom wrongfully accuses and even more rarely mistakenly ''convicts.'' That is to say, there are very few false positives. There is occasionally controversy about whether a penalty imposed is inappropriately severe, but it is extremely rare that there is any serious doubt about whether a violation has been committed. I believe that this is true in part because the enforcement staff has little or no incentive to pursue false charges against anyone; if anything there is an opposite incentive not to pursue any but the most clear cases simply because of the public pressure and vilification that is often heaped on those who threaten popular athletic programs. Furthermore, often unlike public prosecutors, members of the enforcement staff are not in a position to use the process to build a reputation or career. They are generally young, notoriously poorly paid, have no axe to grind, and invariably toil anonymously and out of the public eye. There is almost no evidence, other than the occasional unsubstantiated accusations of undoubtedly ''guilty'' coaches who are desperately trying to save their privileged status and large incomes, suggesting that the enforcement staff has ever acted in anything but reasonably cautious good faith. The staff, being generally young and frequently inexperienced, is certainly not perfect and can undoubtedly make mistakes, but the mistakes seem to be relatively few (far less than those made in our criminal justice system) and always made in good faith.
Given that there are very few ''wrongful convictions,'' giving accused institutions and involved individuals more procedural protections would produce virtually no greater justice.(see footnote 28) On the other hand, giving accused institutions and involved individuals significantly greater procedural rights in some forms might well enable many to escape ''conviction'' based on what we have come to think of as technicalities—factors not really having anything to do with the innocence or guilt of the defendant—which would in turn likely cause more to violate rules because of a greater sense of impunity. Thus, imposing more stringent procedural obligations on a small and generally inexperienced staff and on the all-volunteer Infractions Committee would likely do far more damage than good by increasing significantly the number of false negatives, and thereby encourage even more violations, while not reducing the essentially non-existent false positives. In a system in which the incentives and opportunities to cheat are already enormous, this shift in favor of more false negatives and a lesser deterrent against misconduct could have a serious adverse effect on the integrity of the college athletics industry (such as it is).
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As an example, if the law were to require that accused institutions and individuals have the right to cross-examine those who provide evidence against them and preclude the use of hearsay evidence, it would severely diminish the ability of the system to find and to penalize violations. Witnesses with personal knowledge of violations are frequently young, poor, and unfamiliar with legal processes who would often decline to cooperate rather than be subjected to interrogation and inevitable public scrutiny.
Another example relates to the ''Restitution Rule'' under which the NCAA can penalize an institution for allowing an ineligible player to participate even if it did so under a court order. While this seems fundamentally unfair at first blush, on closer analysis its value becomes apparent. If an institution were not subject to penalties in such a situation, coaches could recruit a number of ineligible players, seek short-term injunctions just before important contests from local judges who often act out of partisan or parochial interests, and then allow the player to participate to the substantial competitive advantage of the team (and unfair disadvantage to its opponents), all without any fear of subsequent penalty when the appellate courts inevitably reverse the injunction. This has been the reasoning of the courts that have uniformly upheld the legality of the Restitution Rule—that the NCAA members voluntarily agreed to be subject to it and without it schools could easily obtain unfair competitive advantage through dishonorable means.(see footnote 29) Thus the rule may seem unfair on the surface, but it is important to preventing a means for wholesale evasion of the NCAA's eligibility rules.
IV. Recommendations
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In the final analysis, the most fundamental problem confronting the NCAA enforcement process is the inevitable one of trying to enforce a complex set of rules designed to preserve aspirations that are at odds with reality. Division I-A football and Division I men's basketball are businesses driven by commercial pressures and incentives. Winning is of great value and is rewarded; losing is problematic and is punished. Yet in every game one team must win and one must lose, so there will always be huge pressures on every institution to achieve the former and avoid the latter, even though inevitably there will always be losers and few champions. History teaches repeatedly that while ''higher values'' can be imposed by law up to a point, when market forces become great enough, law-breaking will become widespread and the laws will become increasingly difficult to enforce.(see footnote 30) Therefore, the one clear way to reduce the cheating and to improve the fairness of the enforcement process is to reduce the commercial pressures that today drive Division I intercollegiate athletics and define its ''win at all costs'' culture. I could make several recommendations in this vein for ''cleaning up'' college sports, such as capping coaches' salaries, capping expenditures for recruiting or prohibiting recruiting altogether (as many high school associations do), limiting the revenues and number of TV appearances for a football or basketball team, and/or requiring athletic revenue to be widely shared among all schools in Division I. Such reforms, however, would be counter to the interests of the millions of fans who now ''consume'' college athletics as an entertainment product, and implementing them would require either direct government regulation or at least an antitrust exemption for the NCAA. But such sweeping reform of college sports is beyond the scope of this hearing and is likely politically unrealistic.
Focusing just on the NCAA's enforcement process, I would not recommend that Congress pass legislation imposing due process requirements, either generally or specifically, on the NCAA. Turning over the regulation of the NCAA enforcement process to courts that are unfamiliar with the peculiar culture of Division I athletics, courts that are invariably located in the very communities where passions in any particular case will run the highest, would only serve to undermine the NCAA's ability to enforce its rules and maintain some semblance of conformity with the values and mission of college sports. It would almost certainly greatly increase the number of rules violators who are able to escape detection and penalty while not decreasing the number of innocent institutions and individuals who are wrongfully accused and punished.
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Nonetheless, I do believe that the enforcement process could be significantly improved in ways that would both result in more ''convictions'' of guilty parties while also enhancing fairness and the public's confidence in the integrity of intercollegiate athletics. But the key to these improvements is not specific legal mandates, but rather increasing the NCAA's investment in the process so as to create a larger, better, and more professional enforcement system. An enforcement staff of only 21 mostly young, inexperienced, and lowly paid investigators to police well over a thousand institutions employing tens of thousands of coaches who recruit hundreds of thousands of student-athletes, in a climate where there are substantial incentives to cheat, is grossly inadequate. Furthermore, the high rate of turnover among the staff, undoubtedly in part the result of relatively low compensation, diminishes its effectiveness. Were there to be a substantially larger and more stable and highly paid professional staff of experienced investigators, the likelihood of detecting violations would be greater, the confidence of everyone in the thoroughness and reliability of investigations would be greater, and the need to rely on ''rats,'' to cut corners, and to employ questionable tactics would be greatly diminished.
Furthermore, I believe that both the Committee on Infractions and the Infractions Appeals Committee in Division I should be composed of paid professional jurists—not necessarily current or former public judges, but highly respected individuals with training in law and dispute resolution whose motives, knowledge, and skill could not reasonably be doubted. These two crucial committees are really adjudicatory ''courts,'' not ''committees'' in any normal sense of that word, and staffing them with volunteers who come solely from within the NCAA system is not appropriate. Because the members of the Infractions Committee have limited amounts of time they can devote to this ''volunteer'' activity, hearings must be streamlined and cut shorter than they need to be or should be. And because the committee members are not trained or experienced adjudicators, implementing more complex procedural processes would be difficult for them to manage. There is no good reason why witnesses, especially crucial witnesses, who are willing to attend and testify at a hearing should be prevented from doing so, as they are now, other than that the proceedings would become longer and more complicated, taxing both the time and judicial skills of the volunteer judges. Other procedures employed during hearings seem designed solely to create efficiency, not a better result or more confidence in the fairness of the process, and could be improved if the ''judges'' were paid, experienced, properly trained, and available for however long was required. While I am unaware of any current or former member of either committee who has ever acted with any but the highest degree of integrity and good faith, this is not their primary job or even an important part of their professional careers. Without casting any aspersions on anyone who has served on either of these committees, the old adage that ''you get what you pay for'' seems particularly apt.
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Thus, I would recommend that Congress urge and even pressure the NCAA to invest far greater resources into its enforcement process, including expanding the size and improving the compensation of the enforcement staff and establishing a ''judiciary'' of paid and properly trained ''judges.'' The NCAA is and always has operated its enforcement process ''on the cheap'' despite having huge resources at its disposal, and the process predictably suffers as a result. Congress should use its influence to change this and to require the NCAA to make enforcement one of its highest priorities. If it does, the specific ways that the procedural rules could be made more fair without sacrificing the effectiveness of the process would, I am convinced, naturally follow.
One final recommendation I would make is rather radical, but compelling. I believe Congress should fully explore and structure a mechanism for the NCAA enforcement staff to obtain search warrants and subpoenas from federal courts, which would enable it to obtain evidence and compel testimony from reluctant or unwilling individuals under penalty of perjury. Likewise, if witnesses could be compelled to appear and testify under oath before the Committee on Infractions, many of the impediments to providing institutions and involved individuals with greater procedural rights and protections would be greatly diminished since witnesses would not have to be coddled with promises of being insulated from exposure or cross-examination. If, as the mere fact that the Subcommittee is holding this hearing suggests, NCAA enforcement action can have substantial consequences that economically and psychologically affect a large segment of the general public, then public policy would be furthered by providing these basic law enforcement tools to those who are entrusted with enforcing the NCAA's rules.
V. Conclusion
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While there are many aspects to the NCAA's enforcement of its rules that are often criticized for being unfair or that violate some traditional sense of due process or other fundamental rights of the ''accused,'' I do not share that general criticism. There are indeed many specific procedures employed during the course of an NCAA infractions case that could make the process at least appear, if not actually be, more ''fair,'' but in the end there is no evidence to suggest that the NCAA's enforcement system is fundamentally flawed or makes major mistakes. Wrongful convictions are extremely rare and the penalties assessed are remarkably predictable and consistent. In the cultural environment in which the enforcement process operates in Division I, most of the seemingly questionable measures and procedures employed can be quite reasonably justified. In I-A football and I men's basketball, the commercial incentives and opportunities to cheat are enormous, the likelihood of detection is slight, and proving violations can be quite difficult. To impose judicially enforceable due process or other strict procedural requirements on the enforcement staff or the Infractions Committee as they are constituted today would only be likely to diminish their ability to detect, ''convict,'' and penalize violations that if allowed to become widespread and unpunished could undermine the entire structure of intercollegiate athletics. Furthermore, creating such a legal obligation would give all those found guilty of rules violations a guaranteed avenue of further appeal to the courts, which would impose both time and financial costs on the NCAA, undermine the effectiveness of its enforcement system, and further burden public courts that are already strained. If reducing the number of frivolous lawsuits is desirable, this would not be a way to achieve it.
Meaningful positive reform of the enforcement process would require much more than simply imposing ''due process'' or other simple-sounding requirements on the NCAA. The NCAA could and should be pressured to make a substantially increased investment of resources in its enforcement process. First the NCAA should greatly increase both the size and the compensation of its enforcement staff so as to enable a larger and more stable and experienced investigative staff more effectively to detect, pursue, and prove rule violations without resort to unnecessary short-cuts or questionable tactics. Second, the NCAA should establish in Division I a paid professional administrative ''court'' to replace the all-volunteer Committee on Infractions and Infractions Appeals Committee so that properly trained and experienced jurists could devote the necessary time, skill, energy, and attention to judging every case thoroughly and fairly. The NCAA has historically carried out its extraordinarily important enforcement function by devoting precious few of its enormous financial resources to it, and inevitably in this environment corners must be cut and the appearance of fairness compromised for the sake of efficiency. Congress should insist that the NCAA substantially increase its financial investment in and commitment to its enforcement process.
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Finally, Congress should also consider establishing a mechanism for the NCAA enforcement staff and Infractions Committee to obtain warrants and subpoenas so that evidence could be obtained and testimony taken under penalty of perjury. Armed with such law enforcement tools, policed by a large and well paid investigative staff, and heard by a ''court'' of properly trained professional ''judges,'' there is every reason to believe that the NCAA's enforcement process would be even more effective than it currently is at detecting and penalizing violations of its rules while maintaining an eminently fair and just (albeit inevitably imperfect) process.
Mr. CHABOT. I would also note that, without objection, all Members will have 5 legislative days to submit additional materials for the hearing record; and it is the practice of this Committee to swear in all witnesses appearing before it. So if the witnesses would please stand and raise your right hand.
[Witnesses sworn.]
Mr. CHABOT. We do have a lighting system here, as you might have noted. There are two boxes on the desk there, and each witness is allowed 5 minutes to testify. When 4 minutes have gone by, a yellow light will come in and tell you that you have 1 minute to wrap up. When the red light comes up, we'd appreciate you wrapping up. We appreciate you trying to stay within the 5-minute rule. And then the Members of the panel will have 5 minutes to question each of the witnesses.
Mr. CHABOT. And we will begin with you, Mr. Bloom, if you would testify for 5 minutes.
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TESTIMONY OF JEREMY BLOOM, U.S. OLYMPIC SKIER AND FORMER UNIVERSITY OF COLORADO FOOTBALL PLAYER
Mr. BLOOM. Distinguished Members, I'm honored to testify in front of you today. I'm a former student-athlete, and I intend to give you a perspective into personal experience with the current procedures and practices of the NCAA.
The current procedural system for a student-athlete to dispute interpretations of the NCAA bylaws is flawed. In the United States, when there is a conflict, a dispute or disagreement between two parties, fairness is ultimately judged by our peers or by impartial court proceedings. In the NCAA, the judgment of the dispute is formed exclusively within their organization by their own members. They are the judge, the jury and the executioner; and although they may be a voluntary organization for the institutions, they don't give the student-athlete much of a choice but to become a member. For instance, if any person decides to play professional football, they effectively must take part in the NCAA.
In the current system, a student-athlete must allow his or her university to plead the case of the student-athlete to the very members at the NCAA who disagree with them. It is not rational to believe that the procedures that are subject to bias can produce just and impartial decisions. When the NCAA does rule against a student-athlete, the student-athlete's ability to appeal their decision is flawed as well.
In my own experience, I argued my appeal with the NCAA's Reinstatement Appeals Committee. The NCAA states after 1999 their way of hearing appeals changed by appointing members to hear appeals from outside their NCAA memberships. This was not the case in my appeal. The committee was made up of five members, all of whom had direct NCAA administrative ties. Two were current members of the NCAA conferences, and the remaining three were current administrators at NCAA member institutions. I believe it is difficult to find impartiality with an appeals committee that is made up of members who have direct ties to those who were previously denied relief.
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Secondly, NCAA restitution bylaw 19.7 falls far short of promoting impartiality at the court level. In brief, 19.7 above states that if a student-athlete is granted relief by a court and if at any time in the future that decision is reversed by a higher court, the NCAA reserves the right not only to place sanctions on the player but reserves the right to impose financial as well as forfeiting penalties against the university for following the court order. In my experience, this restitution bylaw brought much concern to the judge who heard my case as well as spurred university officials to notify me that, even if I were granted injunctive relief by the court, that the university would not take the risk of allowing me to play for fear of possible sanctions.
In conclusion, I believe 19.7 is against public policy; and I believe it does not promote due process. The NCAA has had decades to institute necessary changes to their practices and procedures. It seems like any time a congressional body of any kind suggests changes to the NCAA, they always answer in a way that they are currently attempting to improve the system, but nothing ever changes. You are the only people in this country that can initiate change and oversight, and I encourage all of you to do so.
Thank you.
Mr. CHABOT. Thank you very much.
[The prepared statement of Mr. Bloom follows:]
PREPARED STATEMENT OF JEREMY BLOOM
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Distinguished Committee Members,
My name is Jeremy Bloom and I am a 22 year old former NCAA student-athlete (effective August 24, 2004) from Loveland, Colorado and the defending World Champion in Moguls Skiing. I have been a professional skier and member of the U.S. Ski Team since I was 15. I represented the United States in the 2002 Olympic Games in February, 2002 in SLC. In 2002 at 19 years of age, I became the youngest person ever to win the World Grand Prix Title and the third ever American. I enrolled at the University of Colorado in the fall of 2002 and I currently hold a number of receiving, punt return and kick return records at the University of Colorado. I also hold the Big XII Championship Game record for the longest punt return. Additionally, I earned Freshman All-American honors in 2002 and All-Big XII honors in 2003. In 2003 I also became the first American to win a World Championship Gold Medal in Mogul Skiing. My cumulative GPA is a 3.0. On August 24th of this year the NCAA declared me ineligible and as a result I have lost the last 2 year of my football eligibility.
I submit to you my testimony today not to try and improve upon my own situation, nor to attempt to alter or change past injustices. Rather, I submit to you today to expose the injustice and hypocrisy of the NCAA in an effort to create change for the millions of student-athletes to come. My objective is to demonstrate to you today through my experiences with the NCAA, that the organization does not provide due process, as
defined in the U.S Constitution, to its student athletes. I intend to show to you that the NCAA enforces its by-laws governing student athletes in an arbitrary and capricious manner and that its process of resolving disputes with student athletes is prejudiced and partial.
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NCAA BACKGROUND
In 2001, after I was offered a scholarship to the University of Colorado, but prior to my enrollment at the University, I began to inquire at the University Compliance office about the NCAA rules on competing as a professional in another sport, which I had been doing as a skier since 1998. The compliance officer informed me that NCAA by-laws allow a student-athlete to compete as a professional, but they do not allow a student-athlete to receive endorsements. Unfortunately, in my sport, skiing, the only way a professional skier can make money is through endorsements (there is nominal prize money if you win a World Cup event). The U.S Ski Team pays no salary, but it does fund a fraction of an athlete's training, provides a uniform, and covers in-season travel costs (only for A & B Team). All other equipment, training expenses, living expenses, insurance, food, travel, etc. is paid for by the athlete. It is customary for professional skiers to endorse ski equipment, resorts and other products to pay for these expenses. In this instance the two separate rules in the NCAA by-laws conflict with one another. Because of the contradiction in terms of these NCAA by-laws, the University of Colorado Compliance Officer advised me that the only approach to resolve the situation was for the University to file a waiver on my behalf, essentially asking the NCAA to make an exception in my unique case. Ironically, while I was actually competing in the Olympic Games, the NCAA denied my waiver request.
Following the NCAA's denial of the waiver, I sought relief from the District Court of Colorado. Unfortunately, in part because of the NCAA rule 19.7 (which was referred to as 19.8 back in 2002), District Court Judge Hale ruled against my request for preliminary injunction. His judgment is attached.
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Subsequently, due to my desire to play college football, I relinquished all of my endorsements and enrolled at the University of Colorado. During this time I submitted an Appeal to the Colorado State Court of Appeals. While I felt that I could sacrifice, in competitive terms, to be under-funded in 2003 and 2004, I was certain that with the Olympic Games looming only 2 years away that I could not afford to continue in this manner and have a chance to achieve my objective of winning an Olympic Gold Medal for my country in 2006. As a result, after playing football for the University of Colorado for two years while forfeiting all endorsement revenue, in January of 2004 I announced that I was beginning to except endorsements and planned to play football for the University of Colorado.
In March of 2004, I signed my first endorsement contracts since enrolling at the University of Colorado.
On April 7, 2004 the Colorado State Court of Appeals heard my case and six weeks later upheld the original ruling.
At this point, I believed my football career was essentially over. However, in the days leading up to my appeal being heard (on 4/7/04), information was brought forward that, until then, only the NCAA, the University of Iowa, Tim Dwight and Dwight's representative had available to them. This information established that in 1999 that Tim Dwight, a professional football player who had accepted promotional and endorsement monies related to his professional sport of football was reinstated by the NCAA and allowed to run track for the University of Iowa, and was allowed to keep those monies and arrangements. The Tim Dwight case is virtually identical to my own case. (I will cover the Dwight case in further detail later in this testimony in order to establish to the committee that the NCAA practices are prejudiced, unfair and arbitrary).
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With this newly discovered information, the University of Colorado submitted a reinstatement request, on my behalf. The basis of the request was the precedence that had been set in the Tim Dwight case. Although Mr. Dwight's case was virtually identical to my case, the NCAA denied my request. The only rationale that the NCAA provided that I am aware of (because I have never been provided with one document from the NCAA during the entire administrative process within the NCAA system) in ruling for Mr. Dwight, while denying me, is that I ''knowingly'' violated the NCAA by-laws. Apparently, the NCAA believes that Mr. Dwight did not, although he provided my attorney with a signed affidavit that says that he did.
My final opportunity to gain reinstatement was to have the University of Colorado, on my behalf, appeal this decision. They did so, and I was allowed ten (10) minutes to state my case to the Reinstatement Appeals Committee. Like all of the NCAA committee's that made decisions on my eligibility, the Reinstatement Appeals Committee is solely made up of people that work directly for the NCAA or are directly affiliated with the NCAA. In the case of the five (5) members of the Reinstatement Appeals Committee: Two (2) representatives came from Conference's within the NCAA and three (3) representatives were from three separate NCAA member institutions (Universities). Needless to say, the make-up of this committee does not seem to promote impartiality. They ruled against me and officially ended my college football career.
One monumental and first time finding which Judge Hale established in the District Court, and which was later affirmed by the Colorado State Court of Appeals, is that a student-athlete is a third party beneficiary of the contract between the NCAA and it's member institutions.
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Judge Hale's ruling states:
The NCAA has conceded its Constitution and By-Laws constitute a contract between it and its members which approximately 1,267. Mr. Bloom claims that he is a third party beneficiary of that contract. As a threshold matter I deem it appropriate to determine whether Mr. Bloom is a third party beneficiary of the Contract. If he is not, that is the end of the inquiry for the claimed breech of contract. I find that Mr. Bloom is a third party beneficiary to the contract between the NCAA and its members and CU in particular.
NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF IMPARTIALITY
The NCAA's administrative process as it relates to disputes with student-athletes has been constructed to be many things, but fair and impartial it certainly is not. This system is inherently biased and is designed to produce almost exclusively prejudiced results. The NCAA architecture is diametrically opposed to the one that our forefathers carefully and painstakingly crafted over two hundred years ago. The NCAA internal judicial process resembles more that of tyrannical regime than it does a democratic process. All student athletes are appointed, by virtue of NCAA rules, sole and exclusive representation during any proceedings within the NCAA administrative system by an NCAA member institution; in my case, the University of Colorado. Furthermore, every NCAA panel, committee and appeals committee member that reviewed and/or rendered a decision ''on my behalf'' was directly associated with the NCAA, a member institution, or one of its conferences. There is no independence within the NCAA administrative process; therefore there can be no impartiality.
The NCAA has consistently defended its position by claiming to be a voluntary club, which the U.S. Courts have demonstrated great reluctance to interfere upon. The NCAA may be correct in that it is a voluntary club with regards to the member institutions, however, student athletes, while third party beneficiaries to the contract between the NCAA and its voluntary members, are not voluntary members of the club. And, in fact, the NCAA does not operate as, nor remotely resemble, a voluntary club with regards to its student-athletes. In most instances it acts and operates as a well insulated and neatly protected monopoly. In the instance of football, like many other men's and women's sports, the NCAA is the only game in town. It is the minor league system for the NFL. If a young person aspires to play professional football in this country they have to, almost exclusively, go through the NCAA's college football system. While the Arena Football League has been established, comparing it to the NCAA would be like comparing Microsoft to Apple Computers. Furthermore, the Arena Football League gets the vast majority of its players from the NCAA ranks as well.
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Unfortunately, it has proven to be virtually impossible for a student athlete to get relief or due process within the courts as well, as a result of the NCAA's restitution by-law, 19.7. Through this by-law the NCAA has effectively imposed partiality and prejudice even within the U.S. court system. NCAA by-law 19.7 states:
19.7 RESTITUTION
If a student-athlete who is ineligible under the terms of the constitution, bylaws or other legislation of the Association is permitted to participate in intercollegiate competition contrary to such NCAA legislation but in accordance with the terms of a court restraining order or injunction operative against the institution attended by such student-athlete or against the Association, or both, and said injunction is voluntarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is not or was not justified, the Management Council may take any one or more of the following actions against such institution in the interest of restitution and fairness to competing institutions:
(a) Require that individual records and performances achieved during participation by such ineligible student-athlete shall be vacated or stricken;
(b) Require that team records and performances achieved during participation by such ineligible student-athlete shall be vacated or stricken;
(c) Require that team victories achieved during participation by such ineligible student-athlete shall be abrogated and the games or events forfeited to the opposing institutions;
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(d) Require that individual awards earned during participation by such ineligible student-athlete shall be returned to the Association, the sponsor or the competing institution supplying same;
(e) Require that team awards earned during participation by such ineligible student-athlete shall be returned to the Association, the sponsor or the competing institution supplying same;
(f) Determine that the institution is ineligible for one or more NCAA championships in the sports and in the seasons in which such ineligible student-athlete participated;
(g) Determine that the institution is ineligible for invitational and postseason meets and tournaments in the sports and in the seasons in which such ineligible student-athlete participated;
(h) Require that the institution shall remit to the NCAA the institution's share of television receipts (other than the portion shared with other conference members) for appearing on any live television series or program if such ineligible student-athlete participates in the contest(s) selected for such telecast, or if the Management Council concludes that the institution would not have been selected for such telecast but for the participation of such ineligible student-athlete during the season of the telecast; any such funds thus remitted shall be devoted to the NCAA postgraduate scholarship program; and
(i) Require that the institution that has been represented in an NCAA championship by such a student-athlete shall be assessed a financial penalty as determined by the Committee on Infractions. (Revised: 4/26/01 effective 8/1/01)
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This single by-law grants the NCAA absolute power. The NCAA is the only organization (that I am aware of) with the power to retroactively penalize a person, community, and/or member institution because they followed a court order. In practicality, by the time the NCAA exhausts a dispute through the U.S. Courts, always with a chance that a decision could be overturned on appeal at some point by the U.S. Supreme Court, a student athlete will have grown from a teenager to a young man or woman in their mid-twenties (possibly without ever competing). In my own proceedings the process took 2 years and I was only at the State Appeals Court level.
Here is the real affect on the judgment that was delivered in my own case at the district court level in Colorado. At that time the by-law was referred to as 19.8. Judge Hale wrote in his decision:
The harm to CU (University of Colorado) would be that an injunction mandating that they declare Mr. Bloom eligible and allow him to compete on the football team would risk the imposition of sanctions pursuant to by-law 19.8, which would allow the NCAA to impose sanctions if an injunction was erroneously granted. These sanctions could include: forfeiture of all victories, of all titles, TV revenue, as well as others; forfeiture of games would irreparably harm all of the member of the CU football team who would see their hard earned victories after great personal sacrifice nullified; the loss of revenues would harm all student athletes at CU who would find their various programs less economically viable; imposition of NCAA sanctions would harm CU's reputation; and sanctions would reduce the competitiveness of various sport teams at CU.
I find that the harm to CU and the NCAA is more far reaching, especially because it could harm other student athletes, than the harm to Mr. Bloom. Therefore, the public interest would not be served by an injunction.
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These findings in no way diminish my belief that an accommodation without court involvement could have been reached without causing harm that would arise from an injunction
Clearly this by-law prohibits a student athlete the right to due process and is against public policy.
NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF FAIRNESS
As I briefly described previously in the Background section of this testimony, The University of Iowa's Mr. Tim Dwight had a virtually identical situation to mine back in 1999 and one which would normally constitute precedence and be referred to as a basis for decisions in future cases like mine. However, as the NCAA has no oversight, no one to answer to, and is essentially self-governed and self-policed, the NCAA failed to even mention or cite this case, and when I requested information about his case via the NCAA administrative process, I was supplied with false, misleading and deceptive facts.
In 2001, following procedure, my agent, Andy Carroll, on my behalf inquired through the University of Colorado's Assistant Director of Compliance, Sherri McKelvey, and requested that she look into the Tim Dwight case, which we had been informed was similar to mine. Ms. McKelvey inquired to her colleague, Mr. Fred Mims, at the University of Iowa about the details of the case and was incorrectly informed that Mr. Dwight returned all of his endorsement money and ended his agreements in order to be reinstated. Ms McKelvey also inquired within the NCAA Administrative offices and was informed of the same thing. In an e-mail dated January 25, 2002 to Mr. Carroll, Ms. McKelvey wrote: ''Nothing on Tim Dwight—he paid back all his endorsement money to get reinstated.'' The e-mail is attached. The NCAA never submitted to Ms. McKelvey the actual ruling in this case. Either due to systemic administrative failure, or through a conscious effort to mislead and suppress information in order to subvert my request, or just by insufficient effort or incompetence by my sole representative to the NCAA, I was delivered the false facts with regard to this case. As a result, this course of action was never really further pursued.
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Not until much later, April 4 2004, was I able to attain the actual ruling and it was provided to me not by the NCAA but by Tim Dwight's agent. It is attached for your review. The rationale given by the NCAA is:
The staff informed the institution that it would not require repayment inasmuch as the SA's promotional monies related solely to his football participation.
After the newly surfaced and accurate details of Tim Dwight's NCAA reinstatement was revealed to me by Tim Dwight's agent, the University of Colorado compliance office used this as the basis for my reinstatement request in August, 2004. The University of Colorado was of the understanding from the NCAA, that if I agreed to suspend my endorsement contracts while enrolled, that I may be reinstated. Just as the NCAA decided in the Tim Dwight case. In this instance the NCAA arbitrarily decided that my situation was different because I ''willfully violated numerous NCAA bylaws.'' Apparently, the rationale was that Tim Dwight accidentally violated the rules and therefore was allowed to be reinstated.
Subsequent to this ruling, the University of Colorado issued the last and final appeal on by behalf (as per NCAA bylaws) to the NCAA (Sub) Committee on Student-Athlete Reinstatement. As part of this appeal, we provided a signed-written affidavit from Mr. Tim Dwight that states:
To: Whom is may concern
The purpose of this statement is to clarify my thought process and actions during my time as a NCAA track athlete and professional football player.
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I want to make it clear that I ''knowingly and willfully'' accepted endorsement and appearance monies, which is considered a normal part of my salary as a professional football player, even though my intentions were to run track for the Univ. of Iowa after my first year as a professional athlete.
Being ''well aware'' of the NCAA rules governing amateur athletes, it was my assumption that I ''could'' accept endorsement monies as a professional football player but not as an amateur track athlete. I had based my assumptions on the NCAA precedent that you can be a professional in one sport, and an amateur in another.
The NCAA (Sub) Committee on Student-Athlete Reinstatement was unmoved by this new information and upheld the original subcommittee's ruling that I am ineligible.
SUMMARY
In summary, the courts have ruled that student athletes are in fact third party beneficiaries of the contract between the NCAA and the member institutions. As a result they do in fact have rights in the NCAA contract. I hope that I have effectively demonstrated from my experience that the present procedures and bylaws that exist under the NCAA strongly inhibit the student-athletes ability to receive a fair and impartial hearing within the NCAA or in the court. Given the fact that impartiality is a guaranteed right in the 5th and 14th amendment under due process, I do not believe that student-athletes receive due process in the present system that the NCAA currently has in place.
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ATTACHMENTS(see footnote 31)
Bloom1.eps
Bloom2.eps
Bloom3.eps
Bloom4.eps
Bloom5.eps
Bloom6.eps
Bloom7.eps
Bloom8.eps
Bloom9.eps
Mr. CHABOT. Ms. Potuto, you are recognized for 5 minutes.
TESTIMONY OF JO POTUTO, VICE CHAIR, NCAA COMMITTEE ON INFRACTIONS
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Ms. POTUTO. Thank you, Mr. Chairman; and thank you Members of the Subcommittee. I will only highlight a few points here and otherwise rely on the written testimony that I submitted.
As the Chair indicated, I'm a professor of law at the University of Nebraska and hold a Chair in constitutional law. I'm here today in my capacity as the Vice Chair of the Division I Committee on Infractions.
The NCAA is a private association run by its member institutions through committees with separate and distinct functions that administer different NCAA bylaws. Staff from the member institutions and their conferences sit on these committees. NCAA staff do not.
Jeremy Bloom describes, although not accurately, the student-athlete appeals process. That process, the infractions process and the enforcement process are all three separate and distinct, with no overlap of function, membership or even of NCAA administrative staff support. Infractions and student-athlete reinstatement decisions are appealable to separate appeals committees, again with no overlap in membership.
The infractions committee decides cases where institutions are charged with major violations. It does not conduct investigations. It does not interview witnesses. Its decisions are based solely on the hearing record. The enforcement staff as well as the involved institutions, coaches and other individuals each choose what to include in that hearing record.
The committee is independent and impartial. It has two former judges—one State, one Federal. It always has had university professors as members, currently two and as many as five. Past members include law professors Charles Alan Wright, a former President of the American Law Institute and author of a multi-volume treatise on Federal practice; Frank Remmington, who was a member of the Supreme Court's standing committees for both civil and criminal procedure; and Jack Friedenthal, co-author of one of the most widely used civil procedure case books.
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The committee also is savvy about intercollegiate athletics. Its membership deliberately includes athletics administrators. They have credibility with the member institutions because they understand the particular pressures of college athletics. That same athletics' experience and background also means they cannot be conned.
The rules, investigative and adjudicative processes are all there to ensure that student-athletes have fair and equal opportunities to compete. An even playing field means more than simply evenhanded and consistent application of rules on the field. It also includes evenhanded and consistent application of rules off the field.
As directed by the member institutions, the Committee on Infractions has two critical jobs, first, to provide parties a full and fair opportunity to be heard and to treat them the same way as others charged with major violations; second, to ensure the broader systemic interests of NCAA member institutions, to ensure they are advanced. These include timely and efficient resolution of cases in a manner that safely applies NCAA legislation.
As all nine members of the current Supreme Court recently said, the NCAA is not a State actor. Even so, its enforcement, infractions, and hearing procedures meet due process standards. In fact, they parallel, if not exceed, those procedures provided by public institutions.
Certainly, it is important that all NCAA processes, infractions and student-athlete reinstatement included, both be fair and seem to be fair. The perception problem is fed in part by the natural inclination of those who suffer adverse findings and penalties to justify their conduct sometimes by misrepresenting what they did, sometimes by misrepresenting the process itself, sometimes by doing both.
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As public officials, the Members of this Subcommittee know better than I do the potential for media reports to be inadvertently inaccurate or to create misconceptions by telling only part of the story. If there are misconceptions about the enforcement, infraction or student-athlete reinstatement processes, the remedy lies in better communication about how these processes work and then perhaps a more discerning and less uncritical reception of descriptions by interested and disappointed parties regarding these processes, not by fixing systems that ain't broke at the risk of breaking them.
Thank you.
Mr. CHABOT. Thank you very much.
[The prepared statement of Ms. Potuto follows:]
PREPARED STATEMENT OF JOSEPHINE (JO) R. POTUTO
I am Josephine (Jo) R. Potuto, the Richard H. Larson Professor of Law at the University of Nebraska-Lincoln College of Law. I am the vice chair of the NCAA Division I Committee on Infractions (COI) and in that capacity I submit this written testimony to the House Judiciary Committee's Subcommittee on the Constitution. I appreciate the opportunity provided by the subcommittee to discuss the NCAA infractions process as adopted by the NCAA member institutions. This process protects the interests of individuals and institutions charged with violations by assuring them a full and fair opportunity to be heard regarding alleged rules violations. At the same time, this process advances the broader, systemic interests of all NCAA institutions by providing a timely and efficient resolution of infractions matters in a manner that treats all institutions equally regarding the assessment of the severity of violations and the penalties to be imposed.
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The NCAA is a private association comprised of approximately 1000 four-year colleges and universities (329 in Division I) that have joined together to provide and administer standardized rules governing the conduct of intercollegiate athletics programs. It is an association formed, organized, and run by these member institutions. All NCAA bylaws and rules, including the enforcement process and investigative procedures, have been adopted by the membership; the administration of these bylaws and rules (as well as waivers from their application) ultimately is vested in committees comprised of staff members from member institutions or their conferences.
NCAA BYLAWS
As adopted by the membership, NCAA bylaws regulate, among other things, recruiting, academic eligibility, financial aid, awards and benefits for student-athletes, competition and practice limitations, and amateurism issues. In the totality of their interrelationship, NCAA bylaws and regulations advance and preserve the collegiate model of competitive athletics. They are implemented with the prime objective to protect and enhance the educational and physical well-being of all student-athletes and they reflect considered judgment as to how best to balance a host of competing and legitimate interests, including the varying interests of different cohorts of student-athletes. NCAA bylaws and regulations also, and obviously, are intended to assure that any competitive advantage realized by particular athletics programs, teams, or student-athletes is achieved through fair play, rules compliance, ethical conduct, and good sportsmanship, and not by willful violation, rules avoidance, evasion, or ignorance.
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First and foremost among the responsibilities imposed by all member institutions on each member institution is that of institutional control of its athletics program to assure rules compliance, academic integrity, student-athlete well-being, and the promotion of the highest level of sportsmanship and ethical conduct. Institutional control, as adopted by the membership, locates the primary responsibility for rules compliance squarely on each institution and requires each institution both to self-police and to self-report when potential violations are uncovered. If we lived in a world where all institutions at all times had perfect ability and willingness to self-police AND where all institutions at all times had perfect trust and confidence in the self-policing of all other institutions AND where self-policing handled exclusively at the institutional level nonetheless achieved across all institutions a consistent approach to evaluation of the severity of violations and the appropriate penalties attendant on any such violations, THEN there would be need for neither NCAA enforcement staff nor the Committee on Infractions. In the real world, however, both are necessary to assure the integrity of the process and consistency of treatment among and between institutions. In the real and competitive world of intercollegiate athletics, moreover, both are necessary to provide a comfort level to each institution that all are being held to the same standard.
NCAA violations may be major or secondary. They may be committed by coaches or other institutional staff members or those acting at their behest, by individuals formally outside an athletics department but nonetheless sufficiently associated with it to be considered representatives of the program (boosters), and by prospective or enrolled student-athletes. The Committee on Infractions hears only those cases involving potential major violations in which there is potential institutional culpability. Institutions are responsible for the conduct of their staff members and for the conduct of student-athletes and others when such conduct is known, or in the appropriate exercise of oversight and monitoring should have been known, by the institution.
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SEPARATE COMMITTEES; SEPARATE STAFFS; SEPARATE FUNCTIONS
The enforcement and student-athlete reinstatement processes are separate, perform different functions, and are handled by different NCAA committees. The enforcement and student-athlete reinstatement staffs are separate and comprised of different staff members. The student-athlete reinstatement staff reports to the vice-president for membership services, not the vice-president for enforcement. The membership and role of the COI is separate and distinct both from the enforcement staff and the enforcement process and the student-athlete reinstatement staff and from the student-athlete reinstatement process.
STUDENT-ATHLETE REINSTATEMENT PROCESS
If a violation occurs that affects a student-athlete's eligibility, it is the institution's responsibility to declare the student-athlete ineligible and, in the event restoration of eligibility is desired, to seek reinstatement through the NCAA student-athlete reinstatement process. In only about one percent of the cases is the violation so serious and the responsibility of the student-athlete so significant that reinstatement is not warranted. In the other 99 percent of these cases, a student-athlete's eligibility is fully reinstated or reinstated with conditions.
On commission of major and certain secondary violations a student-athlete is ineligible for competition from the time that an institution discovers the violation until the matter is resolved by the student-athlete reinstatement process. In cases where restoration of eligibility is desired, the process typically requires that the institution file a petition for reinstatement on behalf of the ineligible student-athlete, setting forth the facts and circumstances of the violation as determined by the institution. The student-athlete reinstatement staff has the authority to resolve reinstatement matters in order to expedite the process, and to entertain waivers. This authority may be exercised, however, only pursuant to national guidelines and precedent established by the Student-Athlete Reinstatement Committee and the 49-member Management Council. This process also provides a right of appeal to the Student-Athlete Reinstatement Committee. The Division I Student-Athlete Reinstatement Committee is composed of five individuals from various Division I institutions and conference offices.
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The student-athlete reinstatement process provides for the evaluation of information submitted by an NCAA member institution on behalf of a prospective or enrolled student-athlete who has been involved in violations of NCAA regulations that affect eligibility. The institution submitting the reinstatement request is responsible for determining the facts of the case and what violations have occurred. Once a case reaches the reinstatement staff, an institution already has decided that NCAA violations were committed. The objective of the reinstatement staff review is to assess the degree of responsibility of the student-athletes and to determine appropriate conditions for reinstatement of eligibility, if any, pursuant to national standards established by NCAA member institutions, and the Management Councils and Student-Athlete Reinstatement Committees of Divisions I, II, and III. The reinstatement staff has no authority to make a finding of violations. Its sole authority is to determine if reinstatement is warranted, and under what conditions.
ENFORCEMENT PROCESS
It is the responsibility of the NCAA enforcement staff to conduct investigations of potential NCAA violations within the procedural and investigative parameters set forth by the membership and the COI (Bylaws 19 and 32) and to present to the COI cases the enforcement staff has determined to involve commission of major violations for which institutions are responsible. Specific enforcement staff responsibilities include collecting and validating information to determine the possible existence of a violation; classifying violations as major or secondary; tape recording or otherwise memorializing the substance of an interview; disclosing the purpose of a campus visit; permitting representation of counsel at interviews; providing institutions and individuals alleged to have committed major violations timely notice of an inquiry that includes a list of particulars relevant to the violation; providing timely disclosure of information relevant to an alleged violation; maintaining a custodial file of all information relevant to an investigation at a location convenient to institutions, individuals, and their counsels; conducting a pre-hearing conference independent of the COI to narrow the issues in dispute and to gain information leading to the possible amendment or withdrawal of allegations; and to provide an enforcement staff case summary for the COI hearing that sets forth the allegations, together with the facts and circumstances relied on to substantiate the allegations.
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The enforcement process is cooperative, not adversarial. Although, obviously and necessarily, preparing an enforcement staff case summary and presenting a case to the COI entails a staff determination that there is sufficient information from which to believe that major violations were committed, nonetheless the enforcement staff is required to present exculpatory as well as inculpatory information and to present a balanced rendition that gives full sway to information indicating that violations either were not committed or cannot be proved to the evidentiary standard required by the COI. In addition, the enforcement staff has the general responsibility to assist institutions and individuals in their efforts to gather information relevant to alleged violations. Procedural protections include timely, and periodic, notice of the progress of an investigation; the right to assistance of counsel; access to all information relevant to a violation; and a statute of limitations that, with limited and specified exceptions, requires that any alleged violation presented to the COI must have been committed within four years before issuance of a notice that an investigation has been initiated.
COMMITTEE ON INFRACTIONS
A. In General. The hearing procedures adopted by the membership have produced an infractions process that most resembles a type of administrative hearing akin to those employed in hearings conducted at public universities. Self-enforcement and the cooperative principle are at the heart of the process. The enforcement and hearing processes have evolved over time in response to concerns raised by the membership and others that a better and more balanced process could be implemented. Among the changes have been the addition of public members to the COI, the creation of an Infractions Appeals Committee, the addition of a summary disposition process that avoids the costs in time and money attendant on a full hearing, the adoption of a formal conflict-of-interest policy for COI members, and the provision of a database of COI reports.
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Other suggested changes have been considered. Among these have been recommendations that infractions hearings be public and that the hearing process be turned over to hearing officers. With regard to the use of hearing officers, the membership adopted bylaws permitting institutions and others appearing before the COI to request that a hearing officer, rather than the COI, hear the case. In the ten-plus years this option was available; only one request ever was made and, in that instance, came from an individual while the institution in the matter preferred a full hearing. Ultimately, the hearing officer option was eliminated, on unanimous votes both of the NCAA Management Council and of the NCAA Board of Directors. With regard to public hearings, the NCAA, through its membership, has embraced the philosophical position that confidentiality is an important component of the process, both in the particular case and with regard to the overall interests of the membership. The cooperation of witnesses outside the athletics enterprise is often critical to building and proving a case. Many are willing to provide information and to be identified within the process both to institutions and individuals alleged to have committed violations but might be far less willing to provide information if subject to a full public disclosure. Further, the extreme public interest among media and fans might create difficulties in maintaining an appropriate hearing atmosphere.
B. Composition and Role. The Division I COI is comprised of eight members who adjudicate cases and two members who coordinate appeals to the Infractions Appeals Committee. The regulatory and adjudicative process by which the COI operates was adopted by the membership and at any time may be changed by the membership when, if, and how a majority of institutions believe change is needed. As is clear from the regulatory and adjudicative process currently in place, the membership has a concrete and particular conception of the infractions process and the role to be played by the COI. It has created a hearing body that (1) is independent of the NCAA enforcement staff; (2) understands and appreciates the various facets of administering an athletics program; (3) provides a full and fair opportunity to be heard by member institutions and staff members alleged to have committed major violations and provides equal treatment between and among member institutions and their staffs; (4) is committed to the proper application of the rules and bylaws adopted by the membership to govern intercollegiate athletics and the conduct and behaviors of institutions and their staffs, and (5) is mindful of the interests of the membership as a whole when adjudicating the facts of a particular infractions case.
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1. Independence. Independence is assured by the status of COI members, by formal structures of separation, and by the clear demarcation of COI functions. COI members neither are employed by nor report to the NCAA national office. They are appointed by the Division I Management Council on recommendations from the various conferences. Their professional roles outside the NCAA are ones of high responsibility, typically embodying high-level administrative positions. The two public members of the COI, moreover, not only are not employed by the NCAA but they also are not employed by any member institution. As such they are independent both of the NCAA and also of the world of intercollegiate athletics as practiced on the campuses or in conference offices.
The COI does not investigate alleged major violations. It does not conduct pre-hearing witness interviews. It does not engage in pre-hearing fact-finding. It does not participate in pre-hearing conferences. It neither sees nor reviews correspondence between the enforcement staff and institutions or other interested parties. It neither sees nor reviews information surfaced by the enforcement staff, institution, coaches or staff members alleged to have committed major violations unless that information is made a formal part of the hearing record. NCAA staff liaisons to the COI work exclusively with the COI. They are not members of the enforcement staff. COI deliberations and case-relevant discussions are confidential within the COI.
2. Experience with the collegiate athletics enterprise. Membership on the COI, in its totality, reflects a breadth of expertise regarding aspects of intercollegiate athletics and intercollegiate life in general—and deliberately so. The current eight committee members who sit as the adjudicative body, for example, are, or have been, athletics directors, coaches, student-athletes, and a conference commissioner. Several handle or have handled compliance matters on campus and prepare or have prepared waiver requests on behalf of student-athletes. From the perspective of the institution or individuals appearing before the COI, this athletics experience assures a sensitive appreciation of the athletics enterprise and the particular pressures generated by college athletics. From the perspective of the membership as a whole, this athletics experience also assures that the COI will be able properly to evaluate claims that might seem persuasive or compelling to one with little or no knowledge of the athletics world. The faculty status of two COI members brings a faculty perspective to the table and a focused appreciation of the academic mission. With regard to sensitivity to due process concerns, the COI has as members two former judges (representing trial and appellate and state and federal court experience) and three additional lawyers, one of whom dealt with university administrative hearings in his role as general counsel at his university.
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3. Full and Fair Hearing Opportunity and Equality of Treatment. In many, if not most, cases heard by the COI, there is substantial agreement regarding the facts between the institution and the enforcement staff. Typically the institution and enforcement staff have engaged in a cooperative effort to uncover a clear picture of the circumstances surrounding potential violations. Often they participate at least in part in joint interviews. In these cases, as well as in cases in which there is substantial disagreement, institutions and individuals appearing before the COI have notice of the allegations charged against them and, in the enforcement case summary, a list of particulars regarding each allegation and the information relied on by the enforcement staff. At least some of this information will have been provided by the institutions during the investigation pursuant to the NCAA cooperative principle, which imposes an affirmative duty on member institutions to cooperate with the enforcement staff in investigating potential violations. Institutions and individuals also have ample pre-hearing opportunity to discuss the allegations with the enforcement staff; often these discussions lead to the withdrawal or amending of allegations. Moreover, the only alleged violations that the enforcement staff may present to the COI are those supported by sufficient information to warrant a conclusion that a violation has been committed.
Institutions, coaches, other staff members, and student-athletes who may be subject to imposition of a penalty have the right to appear, with counsel, at the COI hearing concerning their institution and to submit a written response. They also have available to them the complete file of information developed by the enforcement staff that is relevant to the case. They are entitled to submit interview transcripts or tapes, and any other documents they believe relevant to a full consideration of an alleged violation. Yet another aspect of the hearing process is that the COI may find a violation proved only if it is supported by information that is ''credible, persuasive, and of a kind on which reasonably prudent people rely in the conduct of serious affairs.'' Not only do NCAA rules mandate the exclusion from COI consideration of any information provided by a source that is not identified to the COI, institution, and individuals, subject to a penalty, but the COI considers with particular care the credibility of individuals providing information, the internal consistency of that information, and any corroborative information. In thus exercising its adjudicative function, the COI frequently does not make findings of violations. The final aspect of the due process afforded institutions and individuals is the availability of an appeal to the Infractions Appeals Committee, both on the merits of any particular finding and on the penalties imposed.
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In sum, then, the procedural protections afforded in the COI adjudicative process include (a) notice of the allegations; (b) a list of particulars regarding each allegation that includes the names of individuals providing information and a summary of the information on which the allegation is based; (c) an opportunity pre-hearing to discuss the substance of the allegations and to present information leading to the enforcement's staff's amendment or withdrawal of allegations; (d) access to all information relevant to an allegation; (e) an opportunity, and sufficient time, to provide exculpatory or explanatory information and a written response to the allegations; (f) a requirement that information provided to the COI must come from sources identified to the COI and to the institution and any individuals appearing before the COI; (g) representation by counsel at the hearing; (h) a full opportunity at the hearing to present one's case; (i) an independent fact-finder; (j) fact-finding based only on that information made part of the hearing record; (k) a finding of violation requiring a high burden of proof; (l) a written report by the COI that sets forth the grounds for its decision; and (m) the opportunity to appeal adverse findings or penalties to the Infractions Appeals Committee.
4. Proper application of rules and bylaws. Another function performed by the COI is to provide consistent, uniform, and informed application of NCAA bylaws and rules. While the NCAA interpretations process is designed to assure informed and uniform application of rules, by their nature these interpretations do not cover the world of potential issues. The student-athlete reinstatement process, as noted earlier, involves no fact-finding but relies instead on the rendition of the facts and circumstances as provided by an institution. The COI, by contrast, is in the unique position to evaluate rules and bylaws in the context of concrete factual situations. The COI takes seriously its responsibility to understand the thrust and significance of rules and bylaws as adopted by the membership and to assure their correct and fair application to the conduct and behaviors of institutions and their staffs.
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5. Interests of the membership as a whole. There is a natural, perhaps inevitable, tension between the interests of an institution or individual involved in a particular infractions case and the interests of the membership as a whole. What might be the most pleasing resolution of a matter to an institution facing findings and penalties might be detrimental to the overall policy considerations and interests of the membership and, in fact, might be so perceived even by the particular institution once it is removed from the infractions process. The COI is ever mindful of the larger intercollegiate context into which its findings and reports must fit.
C. Practical Considerations. The jurisdictional authority of the COI runs to member institutions and their staffs. The COI has no subpoena power or other ability to compel cooperation by those outside institutions, including even family members of student-athletes or prospective student-athletes. While decisions by the COI undeniably may have an impact on individuals who are not institutional staff members—boosters, for example—the direct authority to compel cooperation and to impose sanctions is exercised only on member institutions.
Cases within the jurisdiction of the COI are initiated by information received by the enforcement staff from a number of sources, including media reports. While often the first information about potential violations is reported by the involved institution, on occasion a major case is initiated by information provided by an individual seeking to remain anonymous. This process is no different from a confidential informer used in a criminal case or a law firm's use of a private investigator to follow investigative leads that ultimately produce information relevant to a court proceeding. In each case, the confidential source's information serves only as a directional signal, leading investigators to individuals with information both concrete and relevant to a charge. It is that information, and those individuals, on which and on whom the COI relies in making its findings. The use of confidential source information is a necessary component of an effective enforcement system. Without such information, many fewer major infractions cases would be identified and the commission of many major violations would go undiscovered—to the detriment of all those institutions and individuals who act with integrity and in compliance with the rules. In recognition of the procedural fairness due institutions and individuals, however, NCAA procedures dictate that information provided by a confidential source may not be presented to the COI and may not be relied on by the COI in making its findings.
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Although a private actor for purposes of formal imposition of the due process protections of the 14th amendment, the NCAA in its infractions process clearly meets and very likely exceeds applicable 14th amendment procedural protections. It is a truism that the process that is due varies according to context, with the highest end of procedural protections afforded to defendants in criminal cases. The test for what process constitutionally is due requires an evaluation of the substantive value of the interest maintained by the individual seeking additional procedural protections (in other words, whether there is a liberty or property interest at stake), an evaluation of the likelihood that, and the extent to which, provision of the additional procedural protection will advance or impede the truth-finding function and reduce or increase the risk of error in the decision-making, and an evaluation of the fiscal and administrative burdens of providing additional procedural protection.
Boosters are not subject to NCAA rules or bound by the cooperative principle. Nor do they have a due process liberty or property interest in the right to make financial or other contributions to an athletics program, to travel with athletics teams, to visit locker rooms, to stand on the sidelines at games, or to do a host of other things enjoyed by them—even when they conduct themselves appropriately and in compliance with NCAA rules and bylaws. Certainly, then, boosters have no due process liberty or property interest in their continued association with an athletics program when they are determined to have committed NCAA violations.
Institutions are subject to NCAA rules and are bound by the cooperative principle. They also are responsible for the actions of boosters and others associated with their athletics programs when they know, or in the appropriate exercise of institutional control and monitoring should have known, of booster rules-violative behavior. In any case in which the institution believes the booster to not be culpable, the institution has every interest in representing and defending the booster's interest before the COI. In these cases, booster interests will be reflected in the university's response in as full a rendition as the university chooses to make. In many cases, however, the institution independently and prior to hearing itself determines there is booster culpability and disassociates the booster from its athletics programs. In either case, the booster has no independent right to appear before the COI just as there is no independent, and cognizable, due process interest in maintaining his/her contact with the athletics program. While certainly procedural protections may extend beyond what is minimally required by due process, and while a right to appear would seem to promote booster interests, the impact on the truth-finding function and institutional and greater public policy considerations must be weighed in the balance. As to the latter interest, there might well be a detrimental impact reflected in hearing delays, potential obstructive conduct, and in the overall efficiency of the process. As to the former interest, it is doubtful that the truth-finding function will be improved as a booster has a full opportunity to present his/her case through an institution in any situation in which the institution supports the position of the booster. Moreover, big-time boosters are fully apprised of NCAA rules as they apply to them. There are ample opportunities provided for instruction, including game day programs, periodic mailings to boosters, and in-person instructional sessions
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CONCLUSION
I have attached to my testimony several documents that amplify and add depth and context to my remarks. Thank you very much for the opportunity to submit this testimony and attachments.
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5
ATTACHMENT 6
ATTACHMENT 7
ATTACHMENT 8
ATTACHMENT 9
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ATTACHMENT 10
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Mr. CHABOT. Dr. Ridpath.
TESTIMONY OF B. DAVID RIDPATH, ASSISTANT PROFESSOR, SPORT ADMINISTRATION, MISSISSIPPI STATE UNIVERSITY
Mr. RIDPATH. Thank you, Mr. Chairman.
I'm truly honored to be before this Committee today. As a parent of young children and a former military officer, very little intimidates me, but I must admit I'm a little shaky being here. I found out just late yesterday I needed to get here from Mississippi to Washington, D.C., and managed to pull that off with the assistance of Congressman Bachus' office; and I do appreciate that.
Let me start out by saying, I cannot disagree with Ms. Potuto more; and I think I'm going to detail that in my testimony. You will hear differing opinions through written testimony and what you have heard today on the enforcement and infractions process and the monopolizing-cartel-like power of the NCAA and the NCAA national office.
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There are facts and opinions on all sides of these issues, but let me address these issues from the perspective of a person who has been through two major infractions investigations and who is a person who once vigorously defended the very processes that Ms. Potuto just defended. But I'm also a person who has had my career and reputation ruined by this patently unconstitutional and unfair process.
This is not a process that truly punishes the rule breakers. It is a process that can ruin careers and trample rights all at the same time. It is simply a process that is unAmerican and threatens the very foundation of higher education in America.
I represent today many people who have been unfairly targeted and blamed to protect the true rule breakers. There are many scapegoats out there just so the tax-free, money-making enterprise of college sports can keep running with the facade that somehow the NCAA is actually policing itself. It is an insider's game, just like the old fox guarding the hen house, and they are getting away with it.
In brief, I'm a former distinguished military graduate from Colorado State University, and I served this country honorably for almost 12 years. I'm a man of principle and integrity. I left the stability of a distinguished military career to pursue my dream of working in college athletics. I never had my integrity, my competency or my abilities questioned until confronted by this process and the NCAA investigators and Members of the Committee on Infractions. My treatment and the treatment of others by the NCAA and the NCAA Committee on Infractions was unprofessional, caustic, adversarial and completely out of line without any remedy of fairness, due process and constitutional protection.
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My story is this: I was hired at Marshall University in 1997 as Assistant Athletic Director For Compliance. I was hired to clean up the compliance program that was in disarray. I did that, and I did more, and in the process of cleaning up the mess, I discovered violations that had existed in the athletic program, which I reported, as per rules, to the MidAmerican Conference and the NCAA.
The NCAA launched an investigation into our athletic program. One of the major violations concerned an illegal employment scheme for football and men's basketball athletes. The employment program had been going at Marshall University for almost 7 years prior to my arrival and had been covered up by various administrators and coaches, who, incidentally, still work in college athletics throughout.
It was a scheme that I did not know or was told about. It was a coverup. To make a long story short, I was blamed and held publicly at fault for these intentional violations committed by others in the public NCAA infractions report. I had made an inadvertent, isolated and very minor mistake regarding athlete employment in a totally unrelated matter.
While I still vehemently disagree with the NCAA's interpretation of that specific issue, it is what it is, a minor violation. Unfortunately, the NCAA investigative staff and the Committee on Infractions bootstrapped this violation, in collusion with the institution, to scapegoat me and blame me for violations that I had nothing to do with and had no power to prevent. Although I did everything required by NCAA rules, told the truth throughout the investigation, my career and reputation were in tatters, while those who started the program maintained the program and covered up the program are still working in college athletics today.
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What is wrong with this picture—and it is not just me. College athletics is a very seductive business that has forced good people to do bad things and bad people to do worse things. There is so much money and power involved, particularly with highly paid coaches, that many institutions will do whatever they can to protect what Ms. Potuto so eloquently calls the ''vital interests'' and the Committee on Infractions plays a role in protecting that vital interest, but it is not fairness and due process, it is protecting the money-making machine. In short, don't bite the hand that feeds you. Thus, politically expendable individuals are often left holding the bag, with literally no recourse against one of the strongest monopolies in the world.
Fighting back against this un-American process has been taxing on my family. I have had to start and create a whole new professional career for myself. But I reflect back on one simple piece of advice, ''Do the right thing,'' and now the right thing is not being done, and I must do whatever I can to make changes. The NCAA is not omnipotent. They can and do make mistakes. They do have unfair and archaic practices, and there are many things that need to be done to right the ship.
I truly believe that the only thing that can correct over 100 years of failed reform and change a process that continues under a shroud of secrecy, that can destroy lives and careers with impunity, is Government intervention and that is why I'm here today.
I thank the Committee for the time, and I thank Congressman Bachus for having the courage to pursue this important matter. I urge the Committee to take whatever steps are necessary to reform this process and protect those with integrity and ensure their constitutional rights are protected.
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I end today with a quote from a politician, former Governor Frank Keating of Oklahoma. In his resignation from the National Labor Review Board studying the recent clergy sex abuse crisis, he said, ''to suppress names of offending clerics, to deny, to obfuscate and to explain away, that's the model of the criminal organization, not my church.'' Unfortunately, the NCAA is operating like this criminal organization specifically in its enforcement and infractions process which operates in the same way.
I thank you again for the time today to tell my story and I'll submit further documentation and statements which I was not able to do because of the short notice.
Mr. CHABOT. Thank you very much, Dr. Ridpath.
[The prepared statement of Mr. Ridpath follows:]
PREPARED STATEMENT OF B. DAVID RIDPATH
Chairman Chabot, Congressman Sensenbrenner, distinguished members, ladies and gentlemen,
My name is Dr. Bradley David Ridpath, Assistant Professor of Sport Administration at Mississippi State University. I am also Associate Director of The Drake Group a national consortium of faculty and higher education administrators committed to intercollegiate athletic reform. I am profoundly honored to be before this committee today, as a parent of young children and as a former US Army Field Artillery officer, very little intimidates me, but I must admit that being here on Capitol Hill is a very incredible experience and I do hope that my testimony today is helpful as this committee addresses this very important matter.
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You have heard and will hear differing opinions on the NCAA Enforcement and Infractions process and the monopolizing cartel like power of the NCAA and the NCAA national office. There will be facts and opinions from all sides on these issues, but let me address these issues from a perspective of a person who has been through two NCAA investigations and as a person who has had his reputation and career ruined by patently unfair process that exists now. I cannot disagree more strongly with Ms. Potuto. This is not a process that truly punishes the rule breakers. It is a process that can ruin careers and trample rights all at the same time. It is simply a process that is un-American and it threatens the very foundation of higher education in America.
I represent many people who have been unfairly targeted and blamed to protect the true rule breakers. There are many scapegoats out there—just so the tax free money making machine of college sport can keep running with the facade that somehow the NCAA is policing itself. In reality its primary mission is to protect the billions of dollars at stake. It is an insider's game, just like the fox guarding the henhouse—and they are getting away with it.
In brief, I am a former distinguished military graduate from Colorado State University and served this country for almost 12 years in the Army and National Guard. I am a man of principle and integrity. I left the stability of a distinguished military career to pursue a dream of working in college athletics. I served honorably at three schools including at Marshall University. I never had my integrity questioned, my competency questioned, or my abilities questioned until confronted by this process while at Marshall. My treatment, and the treatment of others, by NCAA investigators and the NCAA Committee on Infractions was unprofessional, caustic, adversarial, and completely out of line with any remnant of fairness, due process and constitutional protection.
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I was hired at Marshall University in 1997 as Assistant Athletic Director for Compliance and Student Services. I was hired by Marshall to clean up a rules compliance program in
Disarray. I did that job and more. In the process of cleaning up the mess, I discovered several minor violations, and two major violations, which I reported to the Mid American Conference and the NCAA. The NCAA launched an investigation into our athletic program. One of the major violations was an illegal employment scheme for football and men's basketball athletes. This employment program had been going on at Marshall University for almost seven years prior to my arrival and had been covered up by various administrators and coaches throughout. It was a scheme that I did not know or was told about. To make a very long story short, I was blamed and held publicly at fault for these intentional violations, by others, in the NCAA Infractions Report. I had made an inadvertent, isolated, and minor mistake regarding athlete employment in a totally unrelated matter. While I still vehemently disagree with the NCAA's interpretation of this issue, it is what it is, a minor violation. The NCAA investigators and the Committee bootstrapped this unrelated violation in collusion with the institution to scapegoat me and blame me for violations I had nothing to do with. Although I did everything required by NCAA rules and told the truth throughout the investigation, my career and reputation were in tatters, while those who actually started the program, maintained the program, and covered up the program are still working in college athletics today. What is wrong with this picture? I will tell you.
College athletics is a very seductive business that has forced good people to do bad things and bad people to do worse things. There is so much money and power involved, particularly with highly paid coaches, that most institutions will do whatever they can to protect what they perceive to be a vital interest—often the Committee on Infractions plays the same tune. In short, don't bite the hand that feeds you. Thus, politically expendable individuals are often left held holding the bag with literally no recourse against one of the strongest monopolies in the world. Fighting back against this un American process has been taxing on my family, but I reflect back to simple advice—Do the Right Thing—and right now the right thing is not being done and I must do whatever I can to make sure it changes.
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The NCAA is not omnipotent. They can and do make mistakes, they do have unfair and archaic practices, and there are many things that need to be done to right the ship. I truly believe the only thing that can correct over 100 years of failed reform, and change a process that continues under a shroud of secrecy that can destroy lives and careers with impunity is government intervention—that is why I am here today. I thank the committee for the time today and I especially thank Congressman Bachus for having the courage to pursue this important matter. I urge this committee to take whatever steps necessary to reform this process to protect those with integrity and insure their constitutional rights are protected.
I close today with a quote by a politician most of us know—Frank Keating former governor of Oklahoma. In his resignation from the national lay review board studying the recent clergy sex abuse crisis he said, ''to suppress names of offending clerics, to deny, to obfuscate, and to explain away—that is a model of a criminal organization, not my church. Unfortunately the NCAA, specifically in its enforcement and infractions process operates in the same way.
Thank you for the time today to tell my story
Thank you
Mr. CHABOT. The Members of the panel will now have 5 minutes each to ask questions, and I'll begin—I recognize myself for 5 minutes.
In your written testimony, you state that you were given 10 minutes to put forth your side of the story to the NCAA's committee on student-athlete reinstatement. Was this your first opportunity to speak directly to the NCAA? And, if so, do you feel you would have benefited from an opportunity to personally state your reasons for reinstatement earlier in the process? And did you attempt to speak to the NCAA on your own? And, if so, what was the outcome of that?
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Mr. BLOOM. That was my first opportunity. And back in 2002 after the Olympics, when I started this process and wanted to help the NCAA understand a different breed of two sport athletes, I requested to have a meeting with them, speak with them. I was denied the right to meet with Mr. Brand, the President, or any of the members, to speak with them directly. I had to allow the University of Colorado to represent me in my dispute with them.
I believe this situation would have never gone to the court, would have never taken this long if I had the opportunity to a public hearing with the NCAA members, with an impartial governing body making the decision.
Mr. CHABOT. Ms. Potuto, would you please share with us your views on the Lee committee recommendations and whether the NCAA's membership has gone far enough in adopting those recommendations.
Ms. POTUTO. Yes, Mr. Chairman. The Lee Commission had a number of recommendations, most of which were adopted by the NCAA member institutions. In fact, the particular proposal for an independent hearing officer was also adopted by the member institutions.
Having said that, in the several years in which that particular option was available to member institutions and individuals, it was only requested once by an individual and, in that instance, the institution opposed the use of a hearing officer.
As I said in my opening remarks, it is critical to the process to have people adjudicating cases who know what happens behind the scenes, can understand a proposed penalty that, in fact, isn't a penalty, can appreciate and give credibility because they have been there. It is not a situation in which it is a body where no one has walked a mile in the shoes of the people who appeared before it.
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Mr. CHABOT. Dr. Ridpath, taking into consideration the testimony that you gave us just a few moments ago, what suggestions would you recommend for changing the process to make it fair, both to institutions but especially the student-athletes and the coaches and everybody involved?
Mr. RIDPATH. There are several. I recently wrote a letter to the editor to the NCAA News suggesting some things that needed improvement.
One is one that has been discussed today, and that is opening up the infractions and hearings process to the public, making those hearing transcripts public, letting the media participate in that. Do not do something behind closed doors. It is the shroud of secrecy that makes it appear like something wrong is going on.
I also feel the Committee on Infractions, although Ms. Potuto has stated that she feels it's a fair and impartial jury, that is not the case. There are athletic directors on that committee. There are faculty athletic reps. They get perks for being part of that committee and know several of the people that they sometimes are even investigating or adjudicating. And these individuals, they have used this bully pulpit to settle old scores and/or cast chips in.
I state my number two, after public hearing, is an independent Committee on Infractions, not anybody from member institutions. I respect the fact that they have people like Frederick Lacey on the committee, but that does not take away the conflict of interest.
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The other thing is everybody who is involved in an NCAA investigation—I use my situation as a clear example—need due process and their constitutional rights protected, that if an institution makes someone a corrective action for some woebegone reason, that the NCAA needs to know, if they are as experienced as Ms. Potuto is claiming—I do dispute that—to know what really goes on behind closed doors and know that they are scapegoating the lowest common denominator, they do not have to accept that as a corrective action. The fact that they do, they are as complicit in, really, the false policies of this committee.
Those are three initial ones that I can think of, Mr. Chairman.
Mr. CHABOT. Thank you very much, and my time has expired.
Is the gentleman from New York here?
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
I had an inquiry about a scheduling for preseason games. Did the NCAA make a decision on preseason games especially affecting Hispanic universities?
Ms. POTUTO. Congressman, the NCAA national office could answer that question. The Committee on Infractions doesn't deal with that, and anything I'd say would be from what I would get from the public record also. So I think—there are people here from the NCAA that could address that for you now or after the hearing.
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Mr. SCOTT. I guess the problem with this whole subject is, if there is a disagreement, who gets to make the final decision? And we have heard Mr. Ridpath refer to it as a cartel. A lot of the Little League and all kinds of leagues have a commissioner who has final authority on everything, and his decision is final, and that's it, and everybody has agreed to that process. Should schools, Mr. Ridpath, be able to agree to be bound by the NCAA, even if it is a cartel?
Mr. RIDPATH. It's the only game in town right now. It would be tough to go elsewhere, although I do think that needs to be studied.
You talk, Mr. Scott, about who is the final decisionmaker. You mentioned the term commissioner. I do often sometimes chuckle at that even in professional leagues where commissioners actually work for the owners.
I had a very distinguished athletic director tell me about the current president of the NCAA, Dr. Myles Brand, saying very clearly to me, and he said to me, ''Dave, he works for us.'' Now while he might be trying to do some good things, the bottom line is he works for the constituency that wants to make the money, and that's where the conflict arises.
Mr. SCOTT. Who should be—if it's not the NCAA as the final arbiter, who should be able to have the final decision?
Mr. RIDPATH. I truly believe it is time for faculty to take charge of their own institutions.
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I'm associate director of a national consortium of faculty and staff for intercollegiate athletic reform collegiate called the Drake Group. And I do believe once faculty take control and enforce academic standards on their campuses, it will almost eliminate the need to have an NCAA governing body because those standards will be enforced by tenured faculty at their institutions, and many of the problems we have today will evaporate.
Mr. SCOTT. You asked us to do the right thing. And maybe Harry Truman said, doing the right thing is easy. Figuring out what the right thing is is the hard part. What is the right thing for Congress to do?
Mr. RIDPATH. What I would like Congress to do and specifically—there are many other things, and I know I'm off on a little tangential area here talking about athletic reform. Specifically, on the NCAA infractions and enforcement process, break down the shroud of secrecy, bring true independent oversight to that committee and guarantee fairness and due process for all.
Mr. SCOTT. And exactly how do we—do we pass a statute? What statute would we pass to require the NCAA to adopt specific rules and regulations? And how are we assured that they actually follow them?
Mr. RIDPATH. To be totally—not quite sure I can answer that question, sir, in that I'm not quite sure what Congress can do, and that's why I'm here today, to look at different proposals. I don't know what type of law can be enacted or what type of oversight can be done on an independent organization, but I do think on a voluntary organization, quote, unquote, the Congress needs to look at and explore situations and potential statutes and legislation that can actually give a check and balance to a process that right now has absolute power and has no check and balance in place.
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Mr. SCOTT. Ms. Potuto, you have an anti-trust exemption, is that right?
Ms. POTUTO. There is no anti-trust exemption.
Mr. SCOTT. The NCAA doesn't have an exemption under the anti-trust laws?
Ms. POTUTO. I don't believe so.
Mr. SCOTT. No further questions.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5 minutes.
Mr. KING. I point out, since the Chair has identified me as the gentleman from Iowa, my focus does come on the Tim Dwight case; and I'd ask one short question of Mr. Bloom. In your written testimony, to your knowledge at least, there is not a distinction between the Tim Dwight case and your case. And since those decisions came down exactly opposite, could you inform this Committee as to why you believe those decisions were opposite to one another?
Mr. BLOOM. I have no idea, and no one holds them responsible to explain.
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Tim Dwight was a junior at Iowa. He went pro in football, signed endorsement deals his junior season, filed for reinstatement his senior year to return to Iowa to run amateur track. The NCAA allowed him to do so and stated that his football ability was the reason for those endorsements.
I'm a professional skier on the Olympic level. I must have endorsements to travel the country. I did the same thing—the University of Colorado filed for the identical reinstatement request as the University of Iowa did. I was denied; he was allowed. I have no explanation. They didn't talk to me. I have no paperwork, nothing.
Mr. KING. Thank you, Mr. Bloom.
I yield the balance of my time to the gentleman from Alabama, Mr. Bachus.
Mr. BACHUS. Professor Potuto, you—in your statement, you stress timely and efficient resolution as one reason for not—I think you have in the past—for not having open hearings or public hearings. Is that one of the considerations?
Ms. POTUTO. Yes.
Mr. BACHUS. Now I notice this instance on the cost of it, not having public hearings and not having people allowed to confront the witnesses against them and that thing. You took the same tact I think in opposing Title IX, the continuation of Title IX as it related to women's participation in athletics, is that correct?
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Ms. POTUTO. Congressman, I'm not sure I understand what the reference is.
Mr. BACHUS. Well, I'm reading an article, ''Cost of Title IX Now Outweigh Benefits,'' by Josephine Potuto.
Ms. POTUTO. Yes.
Mr. BACHUS. You say, the costs of implementation of Title IX are heavy and outweigh the benefits they have produced.
Ms. POTUTO. I did say that, but I wasn't referring to economic costs, Congressman. I was referring to the impact on male student-athletes who are interested in competing even without scholarship.
Mr. BACHUS. It said costs, and I wonder what that meant. I appreciate that. But you are opposed to the continuation even though you realize they brought about a sea change in respect to women's opportunities——
Ms. POTUTO. I'm not opposed to the continuation of Title IX, Congressman. I support a relook and adjustment to reflect the equities and interests of both genders.
Mr. BACHUS. You have changed—at this time, you are not for the continuation?
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Ms. POTUTO. I have never said in any written or public statement that I'm not for the continuation of Title IX.
Mr. BACHUS. In your statement, when you talk about the reason for not having public hearings, you mention the reason not to have public hearings on page 8: ''Extreme public interest among media and fans might create difficulties in maintaining an appropriate hearing atmosphere.''
Ms. POTUTO. That's right.
Mr. BACHUS. One reason not to have open public hearings is extreme public interest?
Ms. POTUTO. It is. It's not the only reason, probably not the dominant reason, but it is certainly one reason.
Mr. BACHUS. One reason not to have an open hearing is the public's interest in the hearing?
Ms. POTUTO. The public's extreme interest in a hearing that can not only affect the atmosphere of the hearing but may well have an impact on those individuals who are not associated with institutions who come forward with probative information and then are thrust in a media circus and held up to scorn and pressure in their own home communities.
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Mr. BACHUS. You are aware—you teach constitutional law and are aware of the number of cases and philosophy that public awareness, public interest should be encouraged and that actually it has a cleansing—sunshine laws effect on hearings?
Ms. POTUTO. Yes. And I'm also aware public institutions, when they are looking at disciplinary actions against faculty, dismissals, promotions in tenured positions——
Mr. BACHUS. Well, we're not talking about that here.
Let's say an athlete, and the athlete wanted to appear before the committee, wasn't even allowed, but had he been, these are private hearings? What if the athlete or the coach under investigation says, ''I want a public hearing''?
Ms. POTUTO. First, if we are talking about the Committee on Infractions, there may be several different individuals in addition to the institution that all have varying interests as to what they want. Mr. Ridpath talks about an impact on his reputation. I do not see that a public hearing would alleviate that impact. If we are talking about a student-athlete, I'm not in the best position to describe the process as it affects Jeremy Bloom. We have here a member of the student-athlete reinstatement staff that dealt with it that can give particular information and I think challenge the information that Mr. Bloom describes in terms of the processes available to him and his opportunity to participate fully and at several stages in the process and, I might add, before several committees.
Mr. CHABOT. The gentleman's time has expired.
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The gentleman from Tennessee, Mr. Jenkins, is recognized for 5 minutes.
Mr. JENKINS. Professor, I have a poor copy of the judge's ruling in the District Court of Colorado, and it appears to be incomplete. But what was the basis of the judge's ruling in that case? And why was Mr. Bloom denied?
Ms. POTUTO. That is a student-athlete reinstatement issue. I can't tell you that I have recently read that particular opinion so I can share with you the particulars. But, having said that, the judge, as I recall that opinion, upheld the NCAA's opportunity to self police and to administer its programs as a private institution. It granted Jeremy a status before the court in order to reach the merits and then found that there were no substantive, procedural issues and that fundamental fairness was provided.
Mr. JENKINS. Have the courts across the land ever in any cases found that the student-athlete had rights and they have proceeded to enforce those rights?
Ms. POTUTO. Not that I'm aware of. As you well know, Mr. Congressman, in order to reach due process issues as a legal constitutional principle, the individual challenging has to have a substantive property or liberty interest. The opportunity to play intercollegiate athletics does not rise to that level.
In Mr. Bloom's written statements, he talks about the deprivation he is suffering because the college athletics are a minor league for the pros. Well, I would dispute whether any intercollegiate program sees itself as simply or even partly training athletes to be professionals, although that may well be a side effect of playing intercollegiate athletics.
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Mr. JENKINS. This may be a question that may be appropriately addressed to Mr. Bloom. But from Mr. Bloom's testimony, it states on the second page, in January of 2004, I announced that I was beginning to—it says, except, e-x-c-e-p-t. I assume that means to accept endorsements and planned to play football for the University of Colorado. And maybe Mr. Bloom—Mr. Bloom, did you make that decision on your own, with full knowledge of what the rules were?
Mr. BLOOM. Yes, I did. In 2004, I spent two seasons foregoing any type of money coming in from companies; and the NCAA does allow me to receive prize money, which if you did win every competition in a year you are not going to be able to——
Mr. JENKINS. You set out to be rebellious and a pioneer and to challenge this rule that you knew very well that was very clear, is that correct?
Mr. BLOOM. I don't believe I set out as a pioneer. I set out as an athlete who has dreamed every day since I was 5 years old of winning a gold medal in skiing. And when my career was put in jeopardy because of the restrictions placed by the NCAA, I was put in no other positions to accept endorsements and keep my ski career alive.
Mr. JENKINS. If you had made the decision not to accept endorsements, you would not be here today, and there would be no difficulty with respect to your future for you?
Mr. BLOOM. I would not be here today. I would be with the University of Colorado football team, and I would be retiring from the sport of freestyle skiing.
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Mr. JENKINS. Dr. Ridpath, I was unclear after Mr. Bachus' questions about—you asked us clearly to intervene and you outlined, after Mr. Scott's questions, some of the things you would want us to do. Now, you know, you are kind of bucking the trend, too. Most people come up here to the Hill and they ask the Congress to keep our nose out of their business. And are you sure now that you want us to intervene and to do the things that you would ask of us to do now and get into this?
Mr. RIDPATH. I'm absolutely convinced, and it is not just me, but it's the Drake Group, of which I'm a member of the coalition. Several outside groups that have reviewed intercollegiate athletic policies and procedures, we are at the level right now that Government intervention is the only way to stop this train.
Mr. JENKINS. What about your suggestion that it is time for the schools themselves to take control of this?
Mr. CHABOT. Gentleman's time has expired.
Mr. RIDPATH. I wanted to say the only people that have the power to enforce true academic standards, true standards that enforce real college students, students like Jeremy Bloom are the faculty—and right now the faculty are completely out of the process. The only faculty that are involved are ones who have a vested interest in athletics.
Throwing sunshine in the process, to respond directly to Ms. Potuto, would have absolutely ameliorated my process because it would have exposed how the committee acted. They are unprofessional, caustic, and have an adversarial attitude and how I was completely railroaded, I don't think they would have acted that way if it was a public hearing.
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[10:35 a.m.]
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Alabama.
Mr. JENKINS. Mr. Chairman, I believe the lady would like to respond to that. Would it be all right if she takes the time to——
Mr. CHABOT. I will give the gentlemen an additional minute and let the gentlelady——
Ms. POTUTO. Thank you. And I would also like to add and emphasize that with regard to Mr. Bloom's particular situation, there is a member from the NCAA staff that is fully prepared to make that record clear and to correct several misstatements from Mr. Bloom.
But, to get to Mr. Ridpath, the Committee hearing before Mr. Ridpath had no allegations against him. In fact, he was named in an allegation that the enforcement staff dropped before the hearing. He was not named in the public report. There was no finding in the case made against him.
He was reassigned by his employer to another responsibility in the university before the infractions report ever issued. So that—and I would direct the Committee's attention to that report if anybody thinks that Mr. Ridpath was unfairly characterized with regard to his compliance responsibilities. I stand by that report, and I would be delighted if you read that report.
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Mr. CHABOT. We are not going to get sidetracked on this particular case here. So the gentleman from Alabama is recognized. If he wants to delve into that, he is certainly welcome to do that on his 5 minutes.
Mr. BACHUS. Professor, I am sort of struck by your definition of—that participation in college athletics doesn't rise—that activity doesn't rise to the level that ought to be protected by the constitutional rights of due process.
Ms. POTUTO. It's not my reading of that. It's, I think, the reading of all, or virtually all, courts that have looked at it. And I might add that the fact that it doesn't rise to a constitutionally protected interest, the fact that nine members of the current Supreme Court says the NCAA is not a state actor and doesn't need procedural due process does not mean that we don't provide it.
There are a number—I heard—Mr. Congressman, I heard you before say persons who are alleged to have violated have no right to confront their witnesses. Anybody who appears at that hearing has the right, and I can cite you the bylaw provision, to ask questions of any individual or party at that hearing.
Mr. BACHUS. So anyone charged with an offense has the right to appear at the hearing and cross-examine all of the witnesses?
Ms. POTUTO. I don't know, cross-examining might not be the correct term for it, but certainly the right to inquire of anyone else who appears. And, yes——
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Mr. BACHUS. To talk—to question the witness?
Ms. POTUTO. Of course. And anybody——
Mr. BACHUS. Well, all right. Well, I was under the——
Ms. POTUTO.—with a violation clearly has the right to appear before the——
Mr. BACHUS. I was under the misunderstanding that you didn't allow people to confront the witnesses.
Ms. POTUTO. We do. And I can give you the bylaw provisions.
Mr. BACHUS. Let me say this. You have talked about the Supreme Court decision. Now, the Supreme Court decision said you are not a state actor. It certainly didn't give you a license to disregard peoples' constitutional rights, to mistreat people, to abuse people.
And, in fact—and also it did not say that the participation in college athletics was not something that was not a constitutional right. In fact, I will give you several cites that actually say that property—you know, guarantee of life, liberty and property includes the right of travel, the right of enjoyment of occupation, the right to practice a profession, the right to raise a family, a right to——
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Ms. POTUTO. But not the right to play an intercollegiate sport supported by scholarship at a university.
Mr. BACHUS. Is that right?
Ms. POTUTO. Congressman, that doesn't mean that the NCAA or the member institutions would not be vigorous in providing procedural rights. I teach constitutional law——
Mr. BACHUS. In fact, I thought the NCAA was formed in 1905 to protect and promote the interests of college athletics——
Ms. POTUTO. Precisely.
Mr. BACHUS. —and to encourage participation in it, not to wall it off.
Ms. POTUTO. Precisely. And I teach constitutional law. I am certainly a fan of intercollegiate athletics, both men and women, both revenue and nonrevenue. But I value my professional interests in the Constitution and in civil liberties generally and my integrity as an individual much more than the opportunity to sit at a Nebraska volleyball game or to watch swimmers or to watch a Nebraska football game.
Mr. BACHUS. Now, let me ask you this: Do you agree with Justice Marshall when she says, just as in criminal cases, an impartial decision-maker is essential to the rights in a civil proceeding. This neutrality helps to guarantee that life, liberty, and property will not be taken on the basis of an erroneous or distorted concept of the fact of the law. At the same time, it preserves both the appearance and reality of fairness by ensuring that no person will be deprived of his interest in the absence of proceeding in which he may present his case with the assurance that the arbiter is not predisposed or influenced against him.
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Now, the finders of fact are all under the regulation and the power of the NCAA, which is the body bringing that action against him, right?
Ms. POTUTO. Well, but the NCAA doesn't pay my salary. In fact, when I go to an infractions hearing, I go through major grief because of where Lincoln, Nebraska, is located.
Mr. BACHUS. You are not representing to this Congress—in fact, the Lee Commission recommended an independent arbiter of the facts, and the NCAA has rejected that.
Ms. POTUTO. That is not quite accurate.
Mr. BACHUS. But you are not representing to us that you all go out and get independent hearing officers, independent arbiters of the fact, are you?
Ms. POTUTO. No. And what I would say is due process requires a balancing of several interests. Of course, the interests of the individual who is subject to a penalty is of primary interest, but so are the interests in efficiency and fairness, uniformity of treatment.
Mr. BACHUS. Cost. In other words, efficiency, cost?
Ms. POTUTO. Certainly we can have a different system for intercollegiate athletics that balanced those rights more, but at the cost of other interests. And we all know that the law of unforeseen consequences sits out there as a looming presence when we start making substantial changes to a process. Professor Roberts, in his written testimony——
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Mr. BACHUS. Let me close by saying that I appreciate that, but I would hope the NCAA would look at who generates the revenue. It is the student athletes.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes. It is my understanding that we are going to have votes on the floor relatively soon, so I want us to keep it moving along.
Mr. HOSTETTLER. I thank the Chairman.
Dr. Ridpath, I have one question about your—following on Mr. Jenkins' line of questioning with regard to a new mode of regulating college athletics, and that is turning this—the situation over to the school faculty. How would that work?
The reason I ask is because that would be a voluntary environment. I assume that colleges would voluntarily enter into a new covenant, new compact, to regulate themselves. But they would do it—as opposed to the regime now—they would do it through school faculty.
How would school faculty not bring into the situation a similar bias that is claimed now with regard to the NCAA?
Mr. RIDPATH. Thank you, Mr. Hostettler. I would direct you to the Website www.thegreatgroup.org that details—and I will submit this afterward—but details our seven-point plan to solving the majority of the ills that confront college athletics today with the faculty as the driving force.
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It would be incumbent upon individual faculty senates to adopt these proposals. These proposals would ensure that college students are playing college sports. This would ensure that college students—that college athletes are treated as college students. This would ensure that there is no multi-million-dollar academic eligibility mill to keep not just kids who might be academically unprepared to go to college. I think somebody who wants to go to college is the key, but I can strongly disagree with Ms. Potuto. There are several kids, many kids, hundreds of kids, who come to college to go pro, and that is the only avenue right now they have to go pro.
Enforcing the great group standards will finally break down the dirty little secret that the NFL and the NBA and the NCAA have right now of forming minor leagues, giving these other kids who have no desire to go to college another place to go. Then, therefore, you have college students who are interested in going to college playing college sports.
Again, I would direct you to the Website and our seven-point plan, but I do believe that it is foolproof.
Mr. HOSTETTLER. For the record today, and this may be unfair as an example, but are you saying that Colorado University professors, faculty, would determine, for example, if Jeremy Bloom could play college football at Colorado University?
Mr. RIDPATH. Absolutely. Eligibility decisions at an institution should be the decision of the institution that fits the academic profile. There is no reason, absolutely no logical reason, that Jeremy Bloom was not suited up for the Washington State game last week.
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Mr. HOSTETTLER. And I am just wondering, do you think that that—I mean, if a university will determine its own eligibility requirements, because that is what you are saying, essentially get rid of the NCAA rules as they are now and say if a particular college wants a particular athlete to play, then that college would determine if that athlete could play and defend a national championship or whatever?
Mr. RIDPATH. Certainly we advocate, of course, a 2.0 grade point average and meeting admission standards as the academic profile of the incoming class, not bringing someone in who has no interest in playing—interest in going to school, coming in with a 12 ACT score and basically warehoused for a year.
Mr. HOSTETTLER. If that were the qualifications of the university, that would be what they would do?
Mr. RIDPATH. If that was the qualification of the university. But I don't know too many that do that.
Mr. HOSTETTLER. Not today?
Mr. RIDPATH. There are rare exceptions, but they do for athletes, yes.
Mr. HOSTETTLER. And secondly, Dr. Potuto, if I could ask a question with regard to the situation between Tim Dwight and Jeremy Bloom. And all I am concerned about is the substantive difference, because, if I understand it right, with regard to NCAA rules, an amateur—an athlete can be amateur status in one sport and be a professional in another sport.
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And could you just give me the substantive differences? I am not concerned about what you think about his testimony today or anything like that. I just want to know the substantive differences between Tim Dwight being a professional football and an amateur track athlete and Jeremy Bloom being a professional skier and an amateur football player. What is the difference?
Ms. POTUTO. Congressman, I certainly could do it, but I think Ms. Strawley is in a better position to respond.
Mr. HOSTETTLER. That would be fine. And, Ms. Strawley, your name for the record as well as were you also involved in the Tim Dwight case?
Ms. STRAWLEY. Certainly. My name is Jennifer Strawley, and I am the director of membership services and student athlete reinstatement.
I was not actually involved in the Tim Dwight case in 1999. However, the differences between the cases are, in Tim's situation he asked forgiveness for what was reported as an unintentional violation of NCAA rules. In Jeremy's case, he went through, asked for interpretation of the rules, sought waivers on behalf of our rules through two separate committees, and then, under his own admission, knowingly committed willful violations of NCAA rules. Jeremy has referenced in his statement that——
Mr. HOSTETTLER. Let me—my time has run out. So I asked for substantive differences between the two. You have given me procedural differences with regard to asking forgiveness as opposed to asking permission. But what are the subjective differences, if the—if the Chairman will——
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Mr. CHABOT. And the gentleman's time has expired. But if you can respond to the question.
Ms. STRAWLEY. The substantive difference is a willful violation of NCAA rules, and a knowing commitment of a violation of NCAA rules, when, in fact, he knew it was against the rules to engage in that activity.
Mr. HOSTETTLER. I thank the Chairman.
Mr. CHABOT. Thank you.
The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. FEENEY. One of the things I love about college athletics is the passion and the intensity—I specifically love Big 10 football and SEC football. I am from Florida. This is the first time that the ACC—right, my friend, Congressman Forbes wants me to remind how intense that competition is. First time I am aware of it spilling over into the United States Judiciary Committee, though.
I guess I start with the initial bias that I absolutely believe that there are unfair decisions probably made by the NCAA from time to time, just like the United States Supreme Court made a horrible decision in the Dred Scott case and has made other decisions that I think are horrible and offensive. I think any judicial body is going to be imperfect, but the question is whether or not Congress ought to act.
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Another bias I have is that I doubt there is any situation that Congress can't make worse if it is not careful. And one of the things I would like to do is put pressure on the NCAA to find ways to be more responsive if there are serious problems with the way that it enforces its rules.
But that is sort of where my bias is. I am not here to defend individual decisions that may have been very much wrong.
One of the things that I would like to ask, you know, Dr. Ridpath. You say that the NCAA is a cartel and a monopoly, and obviously they have had a great deal of power. If I want to play college athletics, as a practical matter, on a very competitive high level, I don't have any choice but to play by the NCAA rules, like it or not.
So I do agree with your contention that they have an awesome amount of power. But there are other options for me. If I happen to be a very skilled hockey player, hockey players get drafted at 16, 17, 18 years old. The same thing with baseball players. A talented football player, 99 times out of 100, maybe more, goes through the college programs first. But that may be a little bit of an exception. But in basketball we have got people from the time that Mr. Dawkins was drafted at what, 17, 18 years out of high school.
So this is not the only outlet for a talented athlete like Mr. Bloom himself who is actually demonstrably skilled in more than one sport. If he didn't like the NCAA rules, he clearly had options.
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And I would ask you whether this is really a monopoly or cartel that keeps people out of a pursuit that they want to pursue, but more importantly livelihood, which would be a problem, in my view.
Mr. RIDPATH. I would say on the surface what you are saying seems very logical. But, again, facts are stubborn things. Yes, hockey players can go pro at a very young age. Baseball players can. Other sports can. They don't generate the revenue that football and men's basketball does.
The NCAA and NFL are in collusion to make sure that kids cannot participate in the NFL until 3 years after they graduate from high school, and the NBA is going to try to pursue that same rule. Why? The NCAA wants to keep the best players and generate that revenue which is their main, vital interest, generate the revenue to pay those salaries.
Mr. FEENEY. Thank you. And now you have, in my view, implemented—or you have implicated the potential for an individual constitutional right, denying somebody the right to make a living is a very different question than what we are doing here.
Ms. Potuto, I would like to ask you about whether or not—because one of the issues is whether these hearings ought to be more open. Now, this is a private, voluntary association, according to U.S. Supreme Court decisions. I think most of us are biased in favor of openness. I would like to be a voyeur at a lot of key decisions that are made.
Does the Buckley amendment have an implications that would prohibit, at times, when students are involved, publicizing proceedings?
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Ms. POTUTO. There may well very be privacy interests both in State and Federal law. The Buckley amendment, I believe, goes to records particularly. But there are interests like that replete in those hearings. I assume one of the prime reasons by which you have the hearings, in terms of termination and student athlete disciplinary proceedings, are in private and held to be confidential.
Mr. FEENEY. Well, and you outline some of the practical problems with—you know, the 14th amendment, as I understand it, does not apply to private or voluntary organizations. It does not apply to the NCAA, so long as it is, in fact, a voluntary, private association, and not a state actor.
One of the practical effects, if a Supreme Court, or if Congress would mandate this, for example, but if the Supreme Court says that the 14th amendment does apply to due process, substantive and procedural concerns, what does it mean for the practical implications for the recruiting process, academic eligibility, financial aid, competition and practice limitations? Are we going to have lawyers on behalf of students go in and say that it is too hot to practice, for example?
Have you thought through some of the potential concerns with guaranteeing due process for every decision that an institution or the NCAA makes?
Ms. POTUTO. Of course. And as a professor of a law school whose salary depends on students going to law school, it is an attractive proposition to create more processes which need more lawyers.
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In fact, even if the—the Congress were to determine or to declare that the NCAA is a state actor, none of the processes that currently are being engaged in I think would have to change, because I think the NCAA committees exceed what procedural due process requires.
Now, but to get to the heart of the question, which is, were additional procedures put in place, would it change the dimensions, make it more formal? Certainly. You put a lawyer in the mix, and you always have a more formal hearing. Rules of evidence are created not to expand the information that can be provided to a hearing officer, but to restrict the information that can be provided.
It is a highly competitive world, obviously. My Congressman can certainly speak to this much more eloquently than I. The notion that an individual school, run by faculty, and I am a chaired professor with tenure of my faculty, and can do so in a way that would make institutions fielding teams that compete with teams from Nebraska feel confident that we are all applying the rules in the same way and in the same fashion, it is one of the more interesting notions I think I have encountered in a long time.
Recruiting is a highly competitive business. One of the interests that institutions and individuals have before the committee is getting it done quickly. If you are subject to an infractions case at a major university, your ability to recruit is substantially affected. And I assume that every other competing coach in the country is going to say to a prospect, you don't want to go there, you are not going to be able to go to a bowl. They are not going to field a competitive team because there are going to be scholarship losses.
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That is the world that this is. It is not a world of 200 or 150 autonomously operating institutions and athletics programs that don't have to deal with each other on a playing field.
Mr. CHABOT. The gentleman's time has expired. I was waiting for you to catch your breath there, but I don't think you breathed through that statement.
Ms. POTUTO. I am from the New York metropolitan area. You don't breathe.
Mr. CHABOT. That explains it.
And we have saved our best for last here. The gentleman from Virginia Mr. Forbes is recognized for 5 minutes. I believe he will be the last questioner unless another Member would show up.
Mr. FORBES. Thank you, Mr. Chairman. And I thank you for calling this hearing. And thank all of you for being here.
I think, as Congressman Feeney mentioned, we all recognize that all of you are here with good intentions and good motives. We appreciate the good work that the NCAA does, and we also recognize that regardless of good intentions, sometimes decisions can go awry. The difficulty for us is when those decisions go awry, they can have enormous impact.
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Mr. Bloom has testified that he has perhaps lost a college career and perhaps more. Mr. Ridpath feels his reputation has been lost. And one of the questions, Ms. Potuto, that my colleague from Virginia raised a little bit earlier was in regard to the Hispanic College Fund football game and that cancellation. I know you indicated that you couldn't respond to that, but the problem we have is sometimes perception becomes reality, and individuals look at something, and it is very, very arbitrary. We have kind of had a system here we have had today of having people slide up to the table to testify, which is fine, because we just want to get the information out. But you alluded earlier to—I think when you were talking to Congressman Scott, that perhaps there was another representative of the NCAA here that had some information regarding that Hispanic College Fund football game and its cancellation.
If they are not, or not prepared to testify, I would just ask if they could submit for the record an explanation so that we can look at that cancellation, because as we indicated, they have some harsh consequences. That game, the cancellation of it, cost about $2 million to that college fund, which helps a lot of individuals and Virginia Tech.
And if you are prepared to respond to that, fine, but if not, if you could submit it for the record, that would be——
Ms. POTUTO. Yes, sir, Mr. Congressman. As a member institution that runs the organization, I will say as the NCAA's employer and boss that they will certainly provide that information to the Subcommittee.
Mr. FORBES. Thank you.
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[The information referred to follows:]
Forbes1.eps
Forbes2.eps
Mr. FORBES. And thank you, Mr. Chairman. That is all the questions I have.
Mr. CHABOT. Thank you very much. I believe that concludes the questions.
Mr. BACHUS. Mr. Chairman, I would ask for a point of personal privilege.
Mr. CHABOT. If the gentleman would state his point.
Mr. BACHUS. Mr. Chairman, I have said all along that my purpose here was to get the NCAA to adopt its own recommendations of its own committee, and that was the Lee Committee, and that my interest in these hearings was to student athletes and due process.
Despite this, the NCAA has made calls. They have told Members—they have—they have brought up the Auburn and Alabama cases. They have brought them up. And then they have said that I was bringing them up. They have said that to—and I wasn't able to prove that until yesterday when they actually put up on their Website a description of this hearing today. And most of that description on the Website is about the Alabama and Auburn cases, which I consider highly inappropriate.
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You know, they are asking assurances that it not be about that, saying I am bringing it up. When I don't bring it up, they bring it up and put it on their Website in an attempt to poison the atmosphere here today.
It is a—and I think it shows a pattern. When we walked in this room today, two representatives of the NCAA—and would the gentleman on the second row, I am pointing at—would you identify yourself for the record?
Mr. LENNON. Kevin Lennon, vice president for membership services of the NCAA.
Mr. BACHUS. Now, he and another gentleman came up to our witness, and I am sure—I don't know if the witness felt intimidated—I did—because he said to him, ''Okay, what are you doing? Are you testifying? Where are you, at Mississippi State?'' He said, ''yeah.'' Called somebody else over there and said, ''Now he is with Mississippi State right now.''
And the word ''Mississippi State'' was said four times within about 1 minute. Mississippi State. Mississippi State. I don't see the reason that it—that that had to be hit four times.
It is very hard to get witnesses here. The NCAA made several calls about Mr. Bloom asking that he not testify. I tell you, it just proves my case that we need a little openness and sunshine in these hearings, and that we do not need people that are being regulated by the NCAA and subject to discipline by the NCAA making the decisions, because it is a very coercive atmosphere.
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And I simply said, ''Let's have public hearings. Let's have an independent trier of the fact,'' which is nothing more than the NCAA actually said in 1992. I have the articles. The head guy at the NCAA said, we are going to do these things. These need to be done. They are long overdue. And then they didn't do them because the pressure backed off.
And I have never advocated, and that—no one have any innuendo that I advocated that I think Congress ought to come in and run amateur athletics. I have never said that, and I have never intimated that. I have simply hoped that the NCAA will take the steps that they assured the American people publicly back in 1991 and 1992, the two things they said that they would do.
And also look at Tom Osborne's testimony here this morning where he actually almost puts athletes—this body is for the interest of athletes, but they almost put athletes in an impossible situation where they pay for the cost of the scholarship, but they don't pay them their cost of living. And most of them come from poor families. They don't do that. Why, I don't know. Maybe it is to save money so there is more money for the organization and less for the student, but it is the student that generates this revenue.
And I would say to them, look at Tom Osborne's testimony today and his suggestion that you ought to compensate for the cost of attendance rather than the cost of education. It would clean up the system to a great extent. It would help student athletes. They can't have part-time jobs, at least at the major institutions, because of the demands on their time.
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But I yield back the balance of my time. But I am very sorry that the NCAA saw fit, after they got my assurance and the Chairman's assurance and Members of this Committee, I told them that I would not bring up Alabama and Auburn, that they poison the well by including that on their Website. And I think that was very inappropriate, because this—you know, they said that they didn't want it to be about those cases. I said it wasn't going to be about those cases. So they put it on their Website and go into those cases.
Mr. CHABOT. The gentleman has stated his point of privilege.
To be fair, does Ms. Potuto wish to make any statement? You don't have to, but if you would like to——
Ms. POTUTO. There is nothing I know about this. So I couldn't—if you want a statement, I am sure there may be somebody here who does, but I certainly don't.
Mr. CHABOT. If you would like to submit something in writing for the record, you are free to do that.
Ms. POTUTO. I think we will. And thank you very much.
Mr. CHABOT. I would also note that Congressman Osborne's wasn't made orally here, but it will be made part of the record.
Mr. BACHUS. Mr. Chairman, I would ask Mr. Bloom, because my understanding that Mr. Dwight submitted an affidavit that he knew the rules when he broke them, and he is actually—I think the witness from the NCAA has intimated that he has given false testimony. He certainly——
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Mr. CHABOT. If any of the witnesses want to make supplementary statements or additions, they can do that in writing within—it is 3 days or 5 days? Within 5 days.
Mr. BACHUS. And I think to correct the record, he should at least offer information to correct some of that.
Mr. CHABOT. So if any witness wants to supplement their testimony, they can do so within 5 days, and that will be made a part of the record.
I want to thank all three of the witnesses for their very sometimes impassioned testimony here this morning. And this is part of our oversight process. And as we had said in opening statements, the last time that Congress looked at this was 13 years ago, and I think it is appropriate for us to do this. Relative to any future action, of course, we can't say with any certainty where this might go, but we do very much appreciate the testimony of all of the witnesses here this morning. And if there is no further business to come before the Committee, we are adjourned. Thank you.
[Whereupon, at 11:05 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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PREPARED STATEMENT OF THE HONORABLE TOM OSBORNE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA
Thank you, Chairman Chabot, Ranking Member Nadler, and Members of the Committee. I appreciate the opportunity to participate in this hearing on ''Due Process and the NCAA.'' I am not an expert on the NCAA or its enforcement process. However, I would like to provide a prospective from my 36 years of coaching and working with the NCAA.
Although the NCAA rule book is thick, the policies are created by the member institutions for the member institutions. Enforcement of the rules is necessary to ensure that no team has an unfair competitive advantage. As with any policing authority, investigations into alleged misconduct create a difficult situation for those involved.
Every NCAA institution is very concerned with complying with NCAA rules. Most schools have a compliance coordinator whose only job is to keep track of the rules and make sure that every coach knows and complies with the rules. However, there will always be a small percentage of those who deliberately break the rules or inadvertently violate a rule unknowingly. The more high profile a school's athletic program, the more notoriety it will receive when a major violation occurs. Fortunately, in recent years, the NCAA has designated violations as being of primary and secondary importance. This has enabled schools that have committed minor, inadvertent violations to receive lesser punishment than those who knowingly commit major violations.
A common misconception is that the NCAA is a separate authority that governs college athletics. However, the NCAA is a voluntary organization composed of member institutions that are involved in its self-governance. It is certainly appropriate for Congress to conduct hearings to gain a better understanding of the NCAA. However, I believe that the NCAA is best situated to understand its governance needs.
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A critical part of that governance process is for the NCAA to continually reevaluate its policies, including the rights of the student athletes, coaches, and institutions. For example, many involved in athletics, myself included, believe that athletic scholarships should compensate for the cost of attendance rather than the cost of the education. This would help student athletes, who cannot hold part-time jobs like the majority of their peers, pay for additional costs such as transportation, health care, clothing, food, and entertainment.
Not unlike Congress, the NCAA strives to create policies that it believes are in the best interest of those it represents. But occasionally, these policies must be reviewed and updated to reflect the current environment and situations that may not have been considered in the past. I am hopeful that this hearing will foster a continued dialogue between the NCAA and the member institutions to ensure the rights of all parties, particularly the student athletes.
Again, thank you, Mr. Chairman, for holding this informative hearing and I appreciate the opportunity to take part in it.
PREPARED STATEMENT OF B. DAVID RIDPATH
I again, like the other witnesses, want to express my thanks to Congressman Spencer Bachus, and this subcommittee for the opportunity to discuss improvements to the NCAA Infractions and Enforcement Process. By way of background information, I am currently an Assistant Professor of Sport Administration at The Mississippi State University, the Associate Director of an Intercollegiate Athletic reform group know formally as The Drake Group (www.thedrakegroup.org), and a member of the Academic Requirements sub-committee of the Coalition on Intercollegiate Athletics. I am uniquely qualified to be a critic of this process in that I have spent the bulk of my athletic and academic career researching and analyzing this process, along with other avenues of academic reform. In addition, I have spent several years involved in intercollegiate and amateur athletics as an athlete, coach, and administrator. Most recently I was Assistant Athletic Director for Compliance and Student Services at Marshall University, prior to that I worked in several athletic positions at Weber State University, before Weber State, I was assistant wrestling coach at Ohio University, where I also received my masters degree in Sports Administration and Facility Management. I also spent time working in the athletic departments of Augusta State University (GA) and Colorado State University in several different capacities. I have degrees from Colorado State University (BA, 1990), Ohio University (MSA, 1995), and a doctorate from West Virginia University (Ed.D. 2002). Currently I consider myself a scholar of intercollegiate athletic reform, as it is my primary research area. I am often asked to comment and am frequently cited by national media outlets on sports reform and enforcement and infractions matters. I am a published author on several sports reform topics. Most importantly, I am a former vigorous supporter of this process. It was not until I experienced this patently unfair process up close and personal that my opinion changed.
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While I have a great connection to research of intercollegiate athletics, NCAA governance, and the enforcement program, my personal expertise on the NCAA enforcement and infractions process primarily revolves around being involved in two major infractions cases at two different universities along with working for over eight years in NCAA compliance at two NCAA Division I institutions. In addition, I am a plaintiff in a lawsuit against my former employer, Marshall University, regarding my treatment during a major NCAA investigation of its athletic program, and the subsequent naming of me as a corrective action in response to that investigation. In short, I was blamed for the major violations and was the only person at the university to lose my job and career as a result. This specific issue is discussed more in depth in my oral statement.
My intent today is to not delve into my pending litigation and for legal reasons I cannot. Like Gary Roberts, I want to emphasize that my comments orally and in writing are mine and mine alone. They do not reflect any opinion, one way or the other, of my current or former employers, The Drake Group, or the Coalition on Intercollegiate Athletics. Nor are these comments in any way pertinent to my lawsuit in that I only will address procedural issues, problems, and potential solutions to the NCAA infractions and enforcement process and my experiences with that process.
I have included several attachments that I would like attached for the record as I will refer them in this missive or they were referred to in my oral testimony. I respectfully submit the following attachments:
1. My oral statement of September 15, 2004(see footnote 32)
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2. Letter to Editor, NCAA News, July 5, 2004 entitled ''Intervention Looms Unless Changes Made.'' Written by Dr. B. David Ridpath
3. Link to The Drake Group Website www.thedrakegroup.com
4. Link to Article ''The Faculty Driven Movement to Reform Big Time College Sports,'' and ''Reclaiming Academic Primacy in Higher Education,'' By Frank Splitt, McCormick Faculty Fellow, McCormick School of Engineering and Applied Science, Northwestern University. http://www.ece.northwestern.edu/EXTERNAL/Splitt
5. The Marshall University NCAA Public Infractions Report dated December 21, 2001. This is included for general knowledge and gives insight into the decision making process of the Committee on Infractions. Ms. Potuto stated that she felt this report was accurate, she stands by it, and she would be delighted if the committee read the report. I too would be delighted if the committee read the report. Potuto claims that I am not unfairly characterized in the report. Her comments are misleading, self-serving, and quite frankly, inaccurate. This report does not tell the entire story and it is sanitized to benefit the Committee and the institution involved. My statements in this report will explain how situations like mine can and do often happen.
Gary Roberts and Potuto have done an excellent job describing the purpose and origins of the NCAA, along with a through explanation of how the enforcement and infractions process works. Thus I will not reinvent the wheel here. I also have the advantage of already testifying so I can refer to my opening statement and oral and written statements by others. My opening statement is clear on my feeling towards this process, and I have significant disagreements with Ms. Potuto and Mr. Roberts on the effectiveness and fairness of it. Still there are many points of agreement and my intent is to not restate my oral presentation. I will respond to Potuto and Roberts' oral and written statements with agreement and/or disagreement and propose my thoughts and solutions.
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I. IS THE CURRENT SYSTEM BROKEN?
My first disagreement with both individuals is one that pervades both of their written statements and to a greater extent, Potuto's oral statement. The feeling conveyed is this process is either not broken at all (Potuto) or just slightly broken (Roberts). I believe the system is broken in that while many on the enforcement staff and Committee on Infractions strive to do the right thing, they are fighting a losing battle against the financial and winning realities of college athletics. The insatiable desire to win, generate revenue, and build the best faculties directly competes with trying to enforce a litany of rules and regulations. Roberts correctly states that the ''commercial market realities dictate the priorities and behavioral incentives for those operating within this system.'' In layman's terms you must win to keep your high paying job and if you win you make money and friends. To that end, the incentive to cheat and get a competitive advantage is often too large to ignore and cheating is usually the result. Many can get away with cheating in intercollegiate athletics, but most do get caught, but only because someone else will turn them in. This is when the dirty little game and deal making starts. Some institutions, The Committee on Infractions (COI), and the enforcement staff have mastered the art of ways to feign discipline and sanctioning while eliminating the chance to appeal any finding by individuals who may be blamed erroneously for violations. The often-used method is one of an institution blaming someone and making them responsible, but since it is the institution pointing blame, the COI can wash their hands of it, thus a potentially innocent individual has no standing to appeal this finding. How convenient!!
Big time college athletics are driven by revenue. Individual institutions are driven by that revenue and prestige of a successful men's NCAA Division I basketball team or football team. Communities and boosters often identify with larger than life football coaches and major boosters stand at the ready to bankroll the programs in an ever-increasing athletics arms race for the best coach, facilities, and athletes. The desire to protect that base, money, and key personnel push institutions into what I will call is the ''situational manipulation'' of the infractions and enforcement process. The Committee on Infractions is as complicit in this sleight of hand lest they damage their own opportunities at a piece of the money pie since most of the COI members are from member institutions. Many of these committee members have been involved in several major infractions cases themselves. Yet these self-proclaimed master's of intercollegiate athletic moral authority sit in judgment of others charged with infractions. As I said in my oral statement, it is the fox guarding the henhouse. In other words don't bite the hand that feeds you. It simply doesn't pass the logic test to investigate yourself, conduct a hearing, and then pass out penalties.
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Due to this strange arrangement of trying to protect integrity while generating revenue and winning, institutions go into the mode of trying to minimize the violations and protect vital interests. These vital interests usually are money and highly paid, extremely popular personnel. Then the blame game starts and it usually starts at the lowest common denominator. The scapegoating of lesser individuals begins. Typically, the first person protected and saved in an infractions investigation will be the head coach or highly paid administrator. The recent University of Missouri scandal is a typical case of what usually takes place. At Missouri head men's basketball coach Quin Snyder went before the public to express remorse for his actions and promised to do better from now on. Tears were shed, apologies were given, and the all-important contriteness was on full display for the almighty enforcement staff and COI that simply does not tolerate any challenge to its arcane procedures. Behind the scenes an institution is usually preparing to dismiss assistant coaches and administrators to insure they are giving the NCAA the desired pound of flesh to perpetuate the facade that the NCAA is actually policing itself. I guess somebody has to be the fall guy.
Ms. Potuto claims this does not happen, and that the COI cannot be conned because of their breadth and depth of knowledge on intercollegiate athletics. Maybe they are not being conned per se, but they are letting it happen and I cite the Missouri case as just one of many examples where high profile coaches have been spared just so someone politically expendable can get the boot. That is a tired excuse and it is time that the NCAA stops these false positives because it is obviously going on. This is simply a way to efficiently finish the case on the cheap and give the image that the bad guys have been handled properly while the moneymakers are still going strong. Typically no fall guy will fight back because they are warned that their career will be over. They are told to hang in there and someone will hire them again. So even the fall guys, while disappointed and hurt at the betrayal, will march in lock step and be a good soldier so they can one day be back in the seductive game. Thus the secret little game continues because no one usually fights back. However, I decided to fight back along with others like Jeremy Bloom, Ronnie Cottrell, and Ivy Williams to stop this un-American process. While the system is broken there are things that can be done to fix it. I will detail my proposals for improvement at the end of this statement.
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II. IS IT REALLY A COOPERATIVE AND COLLEGIAL PROCESS
I directly disagree with Roberts's contention that David Price, current NCAA Vice President for Enforcement, and his investigative staff are people who ''do not act out of animus, bias, or any personal vendettas.'' This is a point I made very strongly in my oral statement. In my direct and indirect experience ''in the trenches'' of college athletics for almost 20 years, my experience has been exactly the opposite. In what is supposed to be a cooperative and collegial process in reality could not be more adversarial and caustic. The enforcement staff is made up of mostly very inexperienced, low paid investigators who have an overwhelming amount of work. Many of them are thrust in hostile situations with the mantra to vigorously and sometimes viciously put down any type of resistance or defense to charges by the NCAA. Many times institutions just acquiesce to this pressure and put up little or no defense, lest they get blackballed by the investigators or the Committee itself for being uncooperative. The scales are heavily tipped in the enforcement staffs' favor and it simply is not fair or constitutional when you are not allowed to provide an effective defense. There is a better way.
To be fair, it is very difficult to really get to the bottom of things when you have limited power and the institutions are doing anything to protect their interests. Still, I believe the mistakes the enforcement staff and COI make are far more numerous that Potuto and Roberts state and many times I believe it is intentional. This intentional behavior is based on previous relationships, power of those getting investigated, potential vendettas, and quid pro quo. Examples like this add to the dysfunctional and imperfect nature of the process. Due to that I do not believe the process is remarkably accurate as Roberts attests. I only think it is reasonably accurate and I strongly believe that enforcement and the COI have tremendous incentive to pursue false or trumped up charges to protect the very aforementioned interests. Since the Committee is primarily made up of institutional staff members, the conflict of interest and potential for tampering is to much too high to ignore and it is ludicrous to think that it has never happened.
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III. RECOMMENDATIONS
Interestingly enough, my recommendations are remarkably similar to Roberts and what was proposed in the 1991 Lee Report. In is even more puzzling why these recommendations have not been adopted because they could dramatically increase the accuracy of this process. I fully agree with Roberts that the enforcement process is at odds with the reality of commercialized college sport and the insatiable drive to win games and generate revenue. I am not certain that government legislation is absolutely necessary to force a change in enforcement and infractions, but I do know it will take acute pressure from the government to force change. At this time I cannot recommend what act or statute needs to be enacted. I do hope that pressure enough will induce change. The only time the NCAA has examined its procedures and instituted effective change was by government intervention. From Teddy Roosevelt to the Lee Report, it took strong government action to accomplish change. Consequently, my first recommendation for change is for this sub-committee to keep the pressure on the NCAA establishment and force meaningful change that will protect people with integrity who value education over commercialized athletic success.
I heartily endorse Representative Spencer Bachus' of Alabama efforts to finally lift the ''shroud of secrecy'' on this patently unfair and unconstitutional process. The old saying is true, ''If you cannot regulate yourselves, then the government will.'' Perhaps this is an area where government intervention absolutely needs to happen, and probably will, unless changes are made.
In this area, the NCAA has been literally begging for a congressional inquiry for over a decade. Institutions and affected individuals are not going to stand for the process as is. Sunshine is desperately needed on the process and the NCAA is so knee deep in litigation challenging it that it can no longer go unnoticed. There have been significant changes regarding NCAA enforcement since Congress last reviewed it in the 1991 spawning from the Lee Report. Some of the more notable changes included the creation of the Infractions Appeals Committee, tape recording interviews, and putting outside of the association individuals on the Committee on Infractions and the Infractions Appeals Committee. Even with these developments, there are still significant changes that must happen to ensure this process operates with integrity and respect for all individuals and institutions.
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Granted, the enforcement and infractions process is grounded in administrative law, not constitutional law. However, when dealing with institutions, reputations, and careers, constitutional due process and protections must apply or the government must make sure it happens. It cannot be reduced to blood sport when talking about someone's life and career. This is unfortunately usually done just to satisfy those who want a fall guy, while the one's really responsible continue to flaunt the integrity of higher education by cheating just win games.
It is an issue of fundamental fairness that all are guaranteed as citizens of America. The specter of NCAA investigations and sanctions can have far reaching negative effects on individuals and institutions involved. Therefore, past allegations and proven facts concerning the enforcement process including potential conflict of interest, use of secret witnesses, manufacturing evidence, and threatening employees of member schools during NCAA investigations and hearings are not keeping with the high values and integrity of intercollegiate athletics. A process that investigates itself presents on its face a major conflict of interest especially in the high stakes world of college sports. It is time to change it to provide fairness for everyone involved, including the enforcement staff and COI.
I believe that I convey workable solutions to a problem that has gone on far too long and one that needs to be fixed for college sports to survive in some semblance of an educational activity. The process as is does not allow for the real violations or violators to be uncovered. It is a mere facade to make believe that true enforcement is happening. However, it can be fixed. There are several modest and simple proposals that can upgrade this process, provide fundamental fairness, due process, and ensure that the bad actors that deserve to be punished are punished. Some of the suggestions for improvement I respectfully submit to the Constitutional Sub-Committee are:
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1. Create an independent, fully trained and compensated, and engaged COI, and Appeals Committee of athletic, faculty, and public officials with an independent administrative staff. No one currently at a member institution should ever serve on this committee. Conflicts of interest must be monitored closely and eliminated. As Roberts' states volunteers that come solely from the NCAA system is inappropriate. His idea of professional jurists is an excellent one and should be immediately enacted. This is also one of the most important recommendations from the Lee Report.
2. Create an independent oversight/ethics board to review process and assess grievances. Specifically govern oversight and training of the Enforcement and Student Athlete Reinstatement Staff. Respond to complaints of inappropriate behavior, vendettas, and questionable investigative tactics by NCAA investigators and the COI. I strongly disagree with Potuto that the investigative staff and COI are ''separate and independent.'' The investigators have a cozy relationship with the COI and work directly with the Administrator of the COI, who works in the same national office. It is ludicrous to think that the committee would question the tactics of investigators that they interact with all of the time.
3. Ban the use of secret witnesses. Everyone must have a right to face their accuser and talk to all witnesses.
4. Explore ways to give the NCAA enforcement staff subpoena power to hold people in the investigation accountable for what they say under oath. In the current process there is no real penalty for lying especially when an institution wants to protect an individual.
5. Adopt constitutional rules of evidence and procedures. Such as disclosing all information, witnesses, and other evidence in the true spirit of cooperation. The cooperative simply does not exist now. It is cooperate and acquiesce—or else. If you challenge anything or put up a vigorous defense, an individual or institution is in danger of being sanctioned for not cooperating. Hardly in line with American and Constitutional values.
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6. Make all hearings public, open to the media, to include public disclosure of hearing transcripts. If the NCAA feels they are doing it right, a little ''sunshine'' will just add needed credibility to what is now nothing more than a cloak and dagger ultra secretive process. Potuto's contention that public hearings would damage the process and hurt individuals is simply a smokescreen to protect the ''on the cheap'' get it done quick process that exists now.
7. Have the intestinal fortitude to sanction those who deserve to be sanctioned. Eliminate the commonly accepted practice on ''institutional scapegoating'' of politically expendable individuals that gives the appearance something has been done to correct problem. Subpoena power can release the enforcement staff from relying so much on the institution for information, which may in fact be sanitized and manipulated.
8. If an individual is made a corrective action by an institution regarding NCAA violations by the institution involved, new procedures should be enacted allowing that individual(s) appeal rights IF the NCAA accepts the sanction as its own. It must no longer be used as a convenient place for the COI or institution to place a scapegoat.
Dr. Myles Brand, the current President of the NCAA, is a mover and a shaker to say the least. While I may not agree with many of the reforms he has championed, it is encouraging to see the effort to slow down this train of abuses in intercollegiate athletics. In a recent New York Times editorial, Dr. Brand took aim at critics of his academic incentive/disincentive plan. He stated that the bar has been raised and that if anyone cheats via academic improprieties the ''NCAA will nail you.'' He proudly talked about increasing the number of investigators on the enforcement staff implying that increased numbers of investigators are the panacea to problems in college athletics. While I agree the NCAA must not perform enforcement procedures on the cheap, it must fix the system and the culture, and then spend the needed money, which is plentiful within the association, on implementing these proposals.
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I do not share the optimism that Potuto and to a lesser extent Roberts have. I believe there are many more false positives and wrongful convictions via institutionalized scapegoating and sanctioned situational morality i.e. what some people do is permissible but what others do is not—even if it is the same thing. It is time to administer justice in a fair and equitable manner that ensures all, even the lowest common denominators, are protected under the constitution. I fully realize that nothing is ever perfect (although Potuto refuses to believe there is even the slightest flaw. She claims there is only miscommunication), but the current process is far from acceptable or even reasonable.
My modest proposals will go a long way to ensuring integrity of the process and the fundamental fairness that all Americans are guaranteed under the Constitution. Dr. Brand, you have been brave to rock the boat with some of your reforms, are you ready to lead the effort on serious reform efforts on this important topic, before the government does it for you?
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SUBMISSIONS FROM THE HONORABLE SPENCER BACHUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA
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LETTER AND RESPONSES FROM THE NCAA
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LETTER AND COMPLAINT FROM FURNIER THOMAS LLP, SUBMITTED BY CHAIRMAN CHABOT
(Footnote 1 return)
Roberts, Resolution of Disputes In Intercollegiate Athletics, 35 VALPO. U.L. Rev. 431 (2001).
(Footnote 2 return)
See NCAA By-law 19.02.2.1 (''A secondary violation is a violation that is isolated or inadvertent in nature, provides or is intended to provide only a minimal recruiting, competitive or other advantage and does not include any significant recruiting inducement or extra benefit.'') Such secondary infractions are today handled almost exclusively through the violating school's conference office, with the NCAA staff playing only a minimal oversight role.
(Footnote 3 return)
The NCAA Enforcement staff is today headed by David Price, Vice President for Enforcement Services. There are under Mr. Price four Enforcement ''Directors,'' and below them another 16 associate or assistant directors. It is worth noting here that while I do not personally know everyone on the enforcement staff, I do know Mr. Price well. In my view he is an individual of strong character who strives mightily to carry out his responsibilities with integrity, fairness, and even-handedness. My experience with both him and the entire staff convinces me that there is little or no reason to believe that the enforcement staff pursues cases for any reason other than their reasonable belief that the information available to them indicates that their actions are required or appropriate under the NCAA's rules. I believe it would be wrong and unjustified to believe that the NCAA enforcement staff acts out of animus, bias, or any personal vendettas against any individuals or institutions in carrying out its duties.
(Footnote 4 return)
In this regard, the NCAA has created a limited immunity for athletes who may have been involved in a violation, often by being the recipient of some ''extra benefit'' from the institution. See NCAA By-law Art. 32.3.8—Limited Immunity. Under this provision, the enforcement staff may give an athlete who turns ''state's evidence'' against an institution a waiver from being declared ineligible for athletics participation as a result of the violation he/she reports. This sometimes results in the unseemly, yet often necessary, scenario of an athlete who took money or other inducements from an institution being allowed to transfer to another school and play while innocent coaches and student-athletes at the first institution end up being penalized (e.g., barred from post-season play) because their institution has been disciplined.
(Footnote 5 return)
The current members of the Division I Committee on Infractions are Paul Dee, athletics director at the University of Miami; Gene Marsh, a law professor from the University of Alabama; Jerry Parkinson, dean of the law school at the University of Wyoming; Josephine Potuto, a law professor from the University of Nebraska; Eugene Smith, athletics director at Arizona State University; Andrea Myers, athletics director at Indiana State University; Thomas Yeager, the commissioner of the Colonial Athletic Association; and three practicing lawyers, Alfred Lechner, James Park, Jr., and Brian Halloran
(Footnote 6 return)
NCAA By-law Art. 32.8.6.2 provides: ''At the time the institution appears before the committee, its representatives should include the institution's chief executive officer, the head coach of the sport in question, the institution's director of athletics, legal counsel, enrolled student-athletes whose eligibility could be affected . . . , and any other representatives whose attendance has been requested by the committee.''
(Footnote 7 return)
See generally NCAA By-law Art. 19 & Administrative By-law, Art. 32. Generally, the Committee on Infractions is empowered to establish its own rules of evidence and procedure for the conduct of the hearing. See By-law Art. 32.8.7. Most of this procedure is not set forth in any published document and is subject to change at any time by the Committee, including during the conduct of a hearing itself.
(Footnote 8 return)
Current Members of the NCAA Division I Infractions Appeals Committee are Terry Don Phillips, athletics director at Clemson University; William Hoye, faculty athletics representative from Notre Dame University; Noel Ragsdale, a law professor at and the faculty athletics representative for the University of Southern California; Alan A. Ryan, Jr., in-house counsel for Harvard University; and Christopher Griffin, a practicing lawyer.
(Footnote 9 return)
These exceptions are: ''(a) Allegations involving violations affecting the eligibility of a current student-athlete; (b) Allegations in a case . . . of willful violations on the part of the institution or individual involved, which . . . continued into the four-year period; and (c) Allegations that indicate a blatant disregard for the Association's fundamental recruiting, extra-benefit, academic or ethical-conduct regulations or that involve an effort to conceal the occurrence of the violation.'' NCAA By-law Art. 32.6.3. Suffice it to say that the great majority of major violations fall within one of these categories, especially since they invariably involve some type of willful violation and/or an effort to conceal the violation.
(Footnote 10 return)
NCAA By-law Art. 32.1.4 is captioned ''Cooperative Principle'' and states: ''The cooperative principle imposes an affirmative obligation on each member institution to assist the NCAA enforcement staff in developing full information to determine whether a possible violation of NCAA legislation has occurred and the details thereof.'' Art. 32.2.1.2, captioned ''Self-Disclosure by an Institution,'' then provides: ''Self-disclosure shall be considered in establishing penalties, and, if an institution uncovers a violation prior to its being reported to the NCAA and/or its conference, such disclosute shall be considered as a mitigating factor in determining the penalty.''
(Footnote 11 return)
NCAA By-law Art. 19.7, captioned ''Restitution,'' provides: ''If a student-athlete who is ineligible under the terms of the constitution, by-laws, or other legislation of the Association is permitted to participate in intercollegiate competition contrary to such NCAA legislation but in accordance with the terms of a court restraining order or injunction operative against the institution attended by such student-athlete or against the Association, or both, and said injunction is voluntarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is not or was not justified, the Management Council may take any one or more of the following actions against such institution in the interest of restitution and fairness to competing institutions: [list of nine categories of penalties is omitted].''
(Footnote 12 return)
See, e.g., NCAA v. Lasege, 53 S.W.3d 77 (Ky. 2001). For recent cases upholding an identical rule of a state high school governing body, see Indiana High Sch. Athletic Ass'n v. Martin, 765 N.E.2d 1238 (Ind. 2002); Indiana High Sch. Athletic Ass'n v. Reyes, 694 N.E.2d 249 (Ind. 1997).
(Footnote 13 return)
See, e.g., Regents of the Univ. of Minnesota v. NCAA, 560 F.2d 352 (8th Cir. 1977); Howard Univ. v. NCAA, 510 F.2d 213 (D.C. Cir. 1975); Justice v. NCAA, 577 F.Supp. 356 (D.Ariz. 1983).
(Footnote 14 return)
See, e.g., Colorado Seminary v. NCAA, 417 F.Supp. 885 (D. Colo. 1976), aff'd, 570 F.2d 320 (10th Cir. 1978).
(Footnote 15 return)
See, e.g., Hall v. NCAA, 530 F.Supp. 104 (D.Minn. 1982).
(Footnote 16 return)
These decisions were in Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982); and Blum v. Yaretsky, 457 U.S. 991 (1982).
(Footnote 17 return)
In the majority were Justices Stevens, Blackmun, Rehnquist, Scalia, and Kennedy. Dissenting were Justices White, Brennan, Marshall, and O'Connor. Notable is that the division among the justices was not along normal ideological lines, with some ''liberals'' and ''conservatives'' on each side.
(Footnote 18 return)
It remains a legal mystery exactly what would happen if a coach were fired by a state university at the direction of the NCAA and then successfully established that the university, unquestionably a state actor subject to constitutional requirements, had violated his due process or other constitutional rights. If the court merely ordered damages to be paid, it would not be a conceptual problem. But if the court ordered the institution to rehire the coach, the school would be put between the proverbial rock and a hard place—being threatened with contempt of court if it did not reinstate the coach but with severe sanctions, possibly expulsion, by the NCAA if it did. This scenario has not yet played itself out so it is not clear what approach the courts would take.
(Footnote 19 return)
In the majority were Justices Souter, Stevens, Ginsberg, Breyer, and O'Connor. Dissenting were Justices Thomas, Rehnquist, Scalia, and Kennedy. Notable is that the division among the justices was sharply along normal ideological lines, with Justice O'Connor casting her frequent swing vote in this case with the ''liberals'' in the majority.
(Footnote 20 return)
For a brief look at the differing approaches of the Nebraska and Nevada statutes, see Weiler & Roberts, Sports and the Law (3d ed.) at pp.757–58 (West Group 2004).
(Footnote 21 return)
See, e.g., cases holding that state antitrust laws cannot apply to professional sports leagues—Flood v. Kuhn, 407 U.S. 258, 284 (1972); Partee v. San Diego Chargers Football Co., 34 Cal.3d 378, 194 Cal.Rptr. 367, 668 P.2d 674 (1983); State of Wisconsin v. Milwaukee Braves, 31 Wisc.2d 699, 144 N.W.2d 1 (1966); Matuszak v. Houston Oilers, 515 S.W.2d 725 (Tex.Ct.App. 1974); or holding that state labor laws cannot apply to professional sports leagues—Hebert v. Los Angeles Raiders, 2 Cal.Rptr.2d 489, 820 P.2d 999 (Cal.App. 1991).
(Footnote 22 return)
Interestingly, in the wake of a recent controversial investigation involving the University of Alabama's football program, the Collegiate Athletic Association Procedures Act was introduced in the Alabama House of Representatives in 2003. It would require that the NCAA provide due process to any Alabama institution accused of rules infractions and would give the Alabama state courts jurisdiction to review NCAA findings and penalties. Unless the Eleventh Circuit takes a different view of this issue than the Ninth Circuit did in Miller, this legislation, should it pass, would likely suffer the same fate as Nevada's did over a decade ago.
(Footnote 23 return)
So, for example, the NCAA arguably could, if threshold statutory elements are met, still be subject to the substantive requirements of the Americans With Disabilities Act, the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, or the antitrust laws, just to name a few. While the NCAA has been sued for alleged violations of all of these federal statutes in recent years, none of the cases remotely implicates the NCAA's process or procedures for dealing with alleged rule infractions by member institutions, and it is hard to imagine a case in which one would.
(Footnote 24 return)
There are many who would argue that the ''system'' of big-time intercollegiate athletics has become so corrupt, exploitive, and hypocritical that it is not worth protecting. Whatever the merits of that larger philosophical argument, it is not relevant to an assessment of the fairness of the enforcement process established for the purpose of preserving the system. One can only reasonably assess the fairness and effectiveness of any process by evaluating it in terms of how it achieves the goals for which it was established, not whether the goals were legitimate in the first place.
(Footnote 25 return)
NCAA Constitution, Art. 1.3.1.
(Footnote 26 return)
A perfect example is in my home state of Louisiana. Because his team won the BCS national championship last year, LSU's football coach Nick Saban was rewarded by having his contract renegotiated so that he is now earning $2.3 million in 2004, with increases over the next several years to $3.0 million annually.
(Footnote 27 return)
In the wake of the Tarkanian and Miller cases, the NCAA came under a great deal of public criticism for the methods it used in the enforcement process, which in turn led NCAA Executive Director Dick Schultz in April 1991 to bring together a group of distinguished individuals, chaired by President Reagan's Solicitor General, Rex Lee, to study and make recommendations for improving the enforcement process. This Lee Commission issued its report on October 28, 1991, with eleven recommendations. Many of the recommendations have subsequently been adopted to a greater or lesser extent by the NCAA, for example (1) establishing a preliminary notice of impending investigation (the NOI), (2) establishing a summary disposition procedure in appropriate major infractions cases (see By-law Art. 32.7), (3) establishing an appellate body (now the Infractions Appeals Committee), and (4) expanding the extent to which decisions of the Committee on Infractions are publicly reported, and (5) establishing a conflict of interest policy for members of the enforcement staff (see By-law Art. 32.2.2.2). Other recommendations have either entirely or largely not been adopted, most notably (1) to establish a group of neutral former judges as hearing officers entrusted with resolving factual disputes before the Infractions Committee decides penalties, and (2) opening up the Infractions Committee hearings to the public except when highly confidential matters are being presented. See generally, Report and Recommendations of the Special Committee to review the NCAA Enforcement and Infractions Process (The Lee Commission), October 28, 1991 (on file in my office).
(Footnote 28 return)
One might envision that giving accused institutions and individuals more leeway in presenting evidence and challenging the credibility of the evidence against them might result in the Infractions Committee imposing less severe penalties. Of course, whether that would be more or less appropriate would be a wholly subjective judgment and not susceptible to normative evaluation. Thus, I mention it only in passing here.
(Footnote 29 return)
See cases cited at n.12, supra.
(Footnote 30 return)
There is perhaps no better example of this phenomenon than the Eighteenth Amendment to the U.S. Constitution, which imposed a ban on the manufacture, sale, or consumption of alcoholic beverages. The market demand for such beverages was so enormous that the law simply could not be effectively enforced and it was repealed by the Twenty-First Amendment. Moral principles were eventually forced to give way to economic reality.
(Footnote 31 return)
Additional materials submitted by Jeremy Bloom were not of sufficient quality for reproduction but are on file with the Subcommittee on the Constitution.
(Footnote 32 return)
This statement is not reprinted here but appears earlier in the record of this hearing.