"The redeeming value in the eyes of the colleges has been the NCAA's efforts to maintain order. For all the bitter criticism, only NCAA enforcement has enabled college athletics to move on from decade to decade with some semblance of decency. It's a job nobody else wants to do. Whatever our problems in achieving an honorable workplace for college athletes, enforcement is the bedrock upon which the NCAA edifice is based…" – Walter Byers' "Unsportsmanlike Conduct"
The bedrock is fractured but not destroyed. During the investigation of the University of Miami's athletics program, it was determined the enforcement staff crossed the line. The Cadwalader review of the staff's investigation concluded that one staff member knowingly acted contrary to legal advice in an effort to uncover the truth. The review also concluded the enforcement staff's actions did not violate any state or federal law or NCAA bylaw, but did go beyond what member schools deem appropriate investigative tactics. Sadly, the public fallout has eroded confidence and trust in the entire enforcement program. The erosion is understandable but misguided.
The lessons learned from the Cadwalader report in the wake of the Miami investigation warrant tightening investigative policies and controls. The report also highlights the need for NCAA schools and the enforcement staff to be clear about acceptable investigative tactics. But, more radical change is not the answer. The NCAA executive committee's recent statements have alluded to additional regulatory review. The staff's actions in one case should not unravel the recently overhauled investigative arm or the new penalty structure on the cusp of making a lasting and needed impact.
I am concerned that if college presidents and other leaders in college athletics do not strongly support the enforcement program (the department and the new model) and allow time to effectively implement the previously approved changes, then, the program risks being decimated. More than ever, the enforcement program needs sustained support from university presidents and other leaders in college athletics. Such support, while unpopular, is vital.
Less than two years ago, 50 college and university presidents agreed that one of the biggest issues facing college athletics was a fundamental threat to integrity based on the widespread belief that cheaters prospered. It appeared that coaches thought it was worth breaking the rules because they would not get caught and if they did, the penalty would be weak. Changes have been made to target this threat; those changes now need support. The enforcement staff needs backing from member schools to aggressively investigate the big cases (to keep alive the healthy fear of getting caught) that will in some instances lead to devastating penalties prescribed by the reform adopted November 1, 2012.
For the NCAA to move forward to the next decade as Byers notes, the enforcement program should be a unique aspect of college athletics that is supported rather than regarded as a necessary evil.
Shortly after Mark Emmert was named NCAA president in April 2010, the NCAA faced 18 months of unprecedented scandals in football and men's basketball. The cases primarily involved cash and other benefits given to prospects and student-athletes, and dishonesty by high-profile coaches. The infamous joke from Jerry Tarkanian – "The NCAA is so mad at Kentucky, it will probably slap another two years' probation on Cleveland State" – that the NCAA picked on low-profile schools seemed disproven given the lineup of high-profile schools with infractions cases (Southern California; North Carolina, Chapel Hill; Tennessee; Auburn; Ohio State; Connecticut; Miami).
I was named vice president of enforcement in October 2010 and spent several months meeting with more than 100 athletics directors, university presidents, coaches and compliance leaders. Three themes emerged from my discussions:
• Penalties are not strong enough to deter the risk/reward mindset;
• Enforcement staff investigations take too long;
• In football and men's basketball, the enforcement staff is not making a big enough impact to instill a healthy fear of getting caught.
The department was restructured in July 2011. Some of the internal changes included:
• Staff assigned to football, and men's and women's basketball, charged with generating cases.
• Staff assigned as "desktop investigators" to mine the web and develop expertise in analyzing phone records, bank records and other evidentiary documentation.
• New position of director of quality control.
• The staff had a real-world understanding of what was happening in recruiting in football and basketball; some cases were the product of staff efforts to get credible leads from sources. By 2012, 25 percent of all active investigations (ranging from 80-100 total) were generated by staff.
• Faster turnaround on cases. (By 2012, average investigation time decreased from nine to seven months.)
• Greater quality controls. The staff implemented a "Review Board" designed to "scrub" all charges and review all evidence. Before infractions hearings, staff members were also required to appear before their peers in a full-day, mock hearing to ensure a fair, comprehensive presentation of each case.
• Better information and process management. Every internal process was painstakingly mapped out leading to several process improvements; some through new technology; others through changes in the way people worked.
• The reform package developed by the 13-member Enforcement Working Group (comprised of presidents, athletics directors and conference commissioners) and NCAA staff, resulted in an overhauled approach to how cases will be judged and how penalties will be levied by the Committee on Infractions starting Aug. 1, 2013.
A month after the enforcement department changes, 50 college and university presidents met in Indianapolis (August 2011), for a two-day retreat facilitated by President Emmert and senior staff.
The purpose? To discuss and commit to leading change in three key areas – academic reform, financial sustainability and integrity. Regarding integrity, the presidents attending the retreat noted “…they were ‘fed up’ with cheating and a lack of accountability, the presidents were adamant about advancing several major initiatives they want addressed – and decided quickly."
Historically, the appetite of member schools for enforcement has shifted across the spectrum from strong support to passive interest. The charge from the retreat was strong and clear with an emphasis on urgency.
A week after the retreat, Yahoo! Sports broke the Miami case on Aug. 16, 2011, detailing recruiting violations and thousands of dollars of extra benefits to multiple student-athletes.
Shortly thereafter, on Sept. 1, 2011, President Emmert issued a statement on NCAA.org titled, “Cheating Will Not be Tolerated.”
Let's make no mistake: Today's violations in collegiate athletics are utterly indefensible. They overshadow all that is good in college sports. They cast doubt over the motivations of all involved and give credibility to the cynical view. Worse, they encourage others to cheat. That is why they cannot be tolerated.
The enforcement staff understood the heightened expectation from college presidents and athletics administrators to be innovative and deliver significant cases. The staff explored using new, innovative techniques to gather information and hired technology and operational experts. For example, surveillance became more commonplace and limited outsourcing was considered. Based on the results noted above, the staff appeared to be moving in the right direction until the public fallout from the Miami investigation.
The Cadwalader report made several conclusions regarding the enforcement staff’s investigation of Miami:
• No federal or state law was broken.
• No NCAA bylaw was broken.
• An action taken by a mid-level manager of the enforcement staff went against legal advice and violated the “understanding” of what member schools deem appropriate investigative tactics.
• The manager’s supervisor and I should have verified with legal counsel when told by the manager that legal counsel had approved the arrangement.
• The manager, his supervisor and I should have fully considered whether the action could be an abuse of the court and whether it would be supported by NCAA member schools as an acceptable investigative tactic.
• The manager’s supervisor and I should have paid closer attention to the arrangement and recognized the problems with it earlier than we did.
• Once the manager’s supervisor and I recognized potential problems, we, along with the legal staff, did the right thing.
To move forward, the membership needs to feel confident that the department’s culture is committed to integrity and appropriate controls are in place while being clear as to how far the staff can and should go to uncover the truth.
An important question is whether the culture of the department was such that staff members were encouraged to disregard legal counsel in order to land the big case? The answer is unequivocally no. The report states that the manager involved with Maria Perez, the outside lawyer, “took a number of steps that can be seen to reflect a conscientious concern for the propriety of his actions.” Further, the report notes two instances when I directed enforcement staff members to involve legal counsel related to Perez (when the arrangement was first proposed and when Perez’s final bills were submitted), and a third instance when I asked if legal counsel had approved additional work by Perez. The enforcement staff’s commitment to follow legal advice and partner with legal counsel is evident by the fact a member of the legal staff was embedded in the enforcement department for a number of years and by the enforcement staff’s requests to return to that arrangement. The staff’s failure to follow legal advice related to Perez reveals a need for greater controls, but not a corrupt culture.
The Cadwalader report concluded that some of the staff’s actions ran afoul of the membership’s expectations, which have not been explicitly defined. Once member schools are clear with their expectations of how aggressive the staff’s investigations should be, the staff can confidently go forward knowing that the member schools and their leaders support the staff’s course of action. The enforcement department is only as good as its protocols and its people, which become easy targets despite being excellent and ethical professionals. While naysayers may offer provocative sound bites, I witnessed, for more than a decade, regular instances of staff taking the high road, which is often lonely and seldom makes headlines. People do enforcement work because they believe in it. Why else? It’s thankless and isolating. Can the staff be trusted to exercise sound judgment? Absolutely. Going forward, clear lines of acceptable tactics coupled with improvements to internal protocols will provide greater support for the investigative arm to successfully do its job.
What needs to happen in response to the Cadwalader report to begin to restore membership trust and public confidence in the enforcement program?
Give recent reforms time to make an impact; commit to assessment after a couple of years
The new penalty structure and overhauled investigative arm need time and support for implementation. Assess and modify (as needed) in a couple of years.
Internal accountability: staffing and quality controls
Limit job responsibilities of key investigators; eliminate administrative responsibilities (e.g., hiring, training others, staff support to one of the 100-plus NCAA committees) and limit focus to only investigations.
Dedicate resources to staff training and make it a priority.
Expand quality control program for enforcement operations
• Consider additional staff members for the quality control program focused on auditing staff compliance with procedures; reviewing staff performance in interviews (each case averages 50 interviews); reviewing policies and procedures for relevance and compliance; and “scrubbing” each proposed charge.
• Embed a member of legal counsel’s office in the enforcement department; require all contractor arrangements be vetted with counsel.
• Consider regularly engaging an external auditor to review staff’s compliance with policies, procedures and internal guidelines, and provide report to vice president of enforcement and enforcement advisory board.
External accountability: clarifying expectations and aligning staff and membership
Establish enforcement advisory board comprised of athletics directors, presidents, compliance administrators. Functions could include:
• Reviewing department’s priorities/violations to target.
• Vetting proposed procedural changes.
• Vetting new investigative tactics before used.
• Requiring and reviewing annual audit of department’s operations.
Build program to establish enforcement staff and committee on infractions ambassadors (enforcement alumni, membership, former COI members) with the public and media.
I believe in the mission of the enforcement program. I’m concerned that the popular view that enforcement is broken will only serve to undermine its long-term success in upholding the collegiate model. Recent reform efforts already made the necessary and tough changes that now need implementation. In response to the lessons learned from the Cadwalader report, I offer additional considerations to assist with continuous improvement. Beyond improvements, the enforcement program needs sustained support. I have notified the NCAA executive committee members of my willingness to meet with them to discuss my recommendations and related concerns in depth. At the end of the day, a strong investigative arm is needed to deliver the significant cases warranting severe penalties. Each component is critical for an effective enforcement program.
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