Strict Liability for NCAA Infractions Boosts Transparency

·3 min read

As part of their reorganization of the Division I enforcement model and infractions process, the NCAA Division I Transformation Committee and Infractions Process Committee are reportedly considering implementing a standard holding head coaches responsible for their staff members’ NCAA rules violations—without any exception. Public details are scarce, but theoretically this would be like a strict liability standard, finding responsibility despite a lack of knowledge or any fault. This would be similar to the vicarious liability standard in tort law, which holds an employer liable for its employee’s actions committed within the scope of employment. 

If made, this would be dramatic change, but not necessarily in visible ways. NCAA Bylaw already presumes head coaches are responsible for staff members’ violations, but permits head coaches to rebut that presumption by showing they: (1) monitor staff and (2) promote a compliant atmosphere. For example, in 2017 the Committee on Infractions (COI) infamously held then-University of Louisville head men’s basketball coach Rick Pitino vicariously responsible for a staff member’s impermissible arranging of striptease dances and prostitution acts for prospective and current student-athletes. The COI presumed Pitino responsible without concluding that he knew of the activities. And he could not rebut the presumption because his monitoring was deemed insufficient. Pitino was suspended for five games.

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A strict liability standard would eliminate the opportunity to rebut the presumption, but in practice, the COI has effectively used that standard for several years. More specifically, since 2014, the enforcement staff has alleged more Level I or II violations of Bylaw than any other NCAA rule, with the COI considering more than 70 such allegations. And only once has a head coach successfully rebutted the presumption of responsibility for a staff member’s violation—former Wichita State head baseball coach Gene Stephenson in 2015.

Still, examining infractions cases since 2014 does not tell the whole story. Many head coaches successfully rebut the presumption of responsibility during the enforcement staff’s investigation—eliminating the allegation before the case reaches the COI. For example, the COI processed a case in 2021 in which a Notre Dame assistant football coach violated NCAA recruiting rules. Yet the enforcement staff did not charge then-head coach Brian Kelly with a Bylaw violation, meaning Kelly successfully rebutted the presumption he was responsible for the assistant coach’s violation during the enforcement staff’s investigation. Thus, the public will never learn about his monitoring or promotion of a compliant atmosphere. Strict liability would mean no more (hidden) rebuttals of responsibility within the enforcement staff process. 

This lack of transparency regarding the rebuttal during the enforcement staff investigation is problematic. If the NCAA decides against strict liability, it should, as I suggested in a recent Nebraska Law Review article, require publication of information regarding how the head coach rebutted the presumption of responsibility. This information would be valuable to other head coaches and college athletics constituents. 

We will see what, if any, changes the Transformation and Infractions Process committees implement. Strict liability or not, improvement is needed.

Josh Lens, a former attorney and college athletics administrator, is an assistant professor of recreation and sport management at the University of Arkansas.

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