Sports Law
Marsh
Spring 2014
Introduction, Moody’s Report
Moody’s Investors Service report:
· Only about 10% of Div. I athletic programs make money (and ALL from 3 conferences alone—Big Ten, SEC, Big 12)
o But note:
§ Gameday parking, vendors, etc., for example: sometimes goes straight to athletics, sometimes goes straight to university, so doesn’t get counted towards a department’s revenue
§ Also some are in black based on student activity fees that subsidize the athletic departments
§ How are the 90% that don’t make $$ going to pay athletes?
· Report does a good job of explaining how much costs of athletic departments has increased compared to other university departments
o Has changed wildly quickly—major increases for Conference Commissioners, Head Coaches, even Assistant Coaches (usually now several assistants are making more that college president)
· Losing football program if you have had a successful program before is a major problem—
o Financial Issues: Suddenly have to pay to fire a coach, pay to hire a big new coach, ticket sales declining, etc.
o Also presents a major issue with reputation issues (which presents admission problems, fan problems, etc.)
o Forces university administrators to often lose their positions over athletic issues
But things are up in the air for the NCAA more than ever before
· Pay for play
o GM: doesn’t really see it fracturing the amateurism model we have because the “haves” and the “have-nots” are already so separated and will be for the foreseeable future. (I.e., benefits/tuition costs as a Notre Dame athlete versus a Troy athlete)
· Pay for memorabilia
· NCAA enforcement office
o Losing many experienced staff members because of morale lost after the Miami investigation
Benefits of hiring outside counsel rather than using in-house folks?
· Perception of independence
· Farther removed
· Able to ask tough questions to head coach, AD, etc. without fracturing relationships
· More experienced with NCAA enforcement/infractions generally
NCAA Rules Enforcement Process (p. 159)
Guiding Principles of NCAA (p. 141):
“Institutional control” of the athletic department
Presumption by membership that power rests with Pres/CEO, NOT the board
Faculty Athletic Rep: 6.1.3 doesn’t define well, so ranges heavily between institutions.
Institutions and the Infractions Process
A. NCAA v. Tarkanian: (p. 159) – NCAA not a state actor and does not have to afford constitutionally mandated procedural due process in its investigative processes or to those appearing before the COI.
a. But recognize: along with no due process requirements like a state actor, NCAA also has no government benefits (subpoenas, etc. to complete investigations).
b. Instead, NCAA issues a “show cause” order.
c. Since Tarkanian, NCAA has taken steps to evaluate the due process they provide (created Infractions Appeals Committee (IAC), etc.)
B. Committee on Infractions: (p. 168)
a. Reviews NCAA Enforcement and Infractions Process: formed to evaluate enforcement process of NCAA to ensure timeliness, fairness, and consistency.
b. The COI, IAC, Management Council, conferences, and member institutions and personnel play the critical role in fulfilling the mission of the NCAA enforcement program, which is summarized in bylaw 19.01.2 in the NCAA manual – all member institutions must cooperate fully with the NCAA, et. al.
c. In the enforcement process, the COI and IAC may impose penalties on institutions, and indirectly on institutional personnel (athletics administrations, coaches, boosters) and student-athletes
d. Bylaw 19.01.1 –“It shall be the mission of the NCAA enforcement program to eliminate violations of NCAA rules and impose appropriate penalties should violations occur. The program is committed to fairness of procedures and the timely and equitable resolution of infractions cases….further an important consideration in imposing penalties is to provide fairness to uninvolved student-athletes, coaches, administrators, competitors, and other institutions”
e. Bylaw 19.01.2 – provides that all representatives of member institutions shall cooperate fully w/ the NCAA enforcement process, COI, IAC and mgmt. council to further the objectives of the NCAA and its enforcement program.
i. Invites institutions (and their personnel) to be proactive in uncovering and disclosing violations
f. Four-Tier Violation Hierarchy:
i. Level I: Severe breach of conduct
1. “Violations that seriously undermine or threaten the integrity of the NCAA collegiate model as set forth in the Constitution and bylaws, including any violation that provides or is intended to provide a substantial or extensive recruitment, competitive, or other advantage, or a substantial or extensive impermissible benefit.”
2. USC Lack of Institutional Control decision, academic fraud
ii. Level II: Significant breach of conduct
1. “Violations that provide or are intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive, or other advantage…or…conduct that may compromise the integrity of the NCAA collegiate model as set forth in Constitution and bylaws.”
2. Think failure to monitor, should’ve done more
iii. Level III: breach of conduct
1. “Violations that are isolated or limited in nature; provide no more than a minimal recruiting, competitive, or other advantage; and do not include more than a minimal permissible benefit.”
2. Can be multiple Level IV violations
3. Typically not hearings—almost always resolved on paper, although can result in things like suspension of a coach, etc.
iv. Level IV: incidental issues
1. “Minor infractions that are inadvertent and isolated, technical in nature and result in a negligible, if any, competitive advantage.”
2. Generally do not affect student-athlete eligibility
3. Think camp fliers, etc.
C. NCAA Constitution (p. 171)
a. 2.1 The Principal of Institutional Control and Responsibility
i. 2.1.1 Responsibility for Control. Each member institution needs to control its athletics program in compliance with regulations.
ii. 2.1.2 Scope of Responsibility. Responsibility for the actions of its staff members
b. 6.01.1 Institutional Control. Exercised by institution and conference where institution is. Administrative control or faculty control (or combo of the two) constitutes institutional control.
c. 6.1 Institutional Governance
i. 6.1.1 CEO (Pres/Chancellor) – has ultimate responsibility and final authority for the conduct of the intercollegiate athletics program and the actions of any board in control of that program.
ii. 6.1.2 Athletics Board – not required but if it does must conform to following provisions:
1. 6.1.3 Faculty athletics representative – Designated by member institution–A faculty member whose duties should be determined by the member institution (cannot hold athletics administrative or coaching position)
2. 6.1.4 Student-athlete advisory committee – Its duties & composition will
eprives the institution and its student-athletes of the opportunity to achieve the highest level of success in their sport. It also prevents the fans and other supporters of the program from enjoying the full success of a season of competition. Because the violations in this case were numerous and particularly egregious, we conclude that the imposition of such a penalty is appropriate under the facts of the case.
Lack of Institutional Control: The COI did NOT find a lack of institutional control. The institution argued that without institutional fault, it is inappropriate to impose penalties on it for violations committed by its athletics representatives. The COI gave little weight to this argument and cited a postseason ban in the UNLV case based on the athletics representative violations for a repeat violator.
Excessive Penalty: We conclude that the two-year postseason ban and five-year period of probation imposed in this case are not excessive or inappropriate. (The COI considered the “death penalty” but declined to impose it.
Notes:
General idea: compliance has to keep with boosters and what they are doing
The institution’s cooperation was a mitigating factor in this case in addition to the environment of compliance that the institution had created. (really just Marsh and Marie!)
i. (Should’ve also been a mitigator that NCAA knew about it and didn’t tell UA and let them walk into trap instead, but it wasn’t)
Death penalty is appropriate when an institution exhibits a blatant disregard for NCAA rules that permeates throughout the entire university and its governance structure.
The COI must have wide latitude in tailoring remedies to the particular circumstances involved in each case and that the universe of relevant cases is not static.
The University of Southern California Public Infractions Appeals Committee Report
Facts: Student-athlete and parents formed sports agency with “partners,” who gave them money, cars, housing, trips, etc. for a year. Asst football coach found out afterwards, but didn’t inform compliance and later lied about it. Athlete didn’t cooperate fully with compliance and failed to give info that would have exonerated him. Also impermissible benefits for basketball student-athlete that basketball staff and athletics admins were aware of. Basically all kinds of violations—also tennis violations, etc..
Issues:
(1) Whether the certain penalties are excessive or inappropriate?
(2) Were certain COI findings of violation contrary to evidence?
Holding:
(1) Penalties
i. Four-year probation; Vacation of wins; scholarship reductions; recruiting restrictions; financial penalty; access limitations for boosters & non-university personnel, including former athletes involved in case
ii. Postseason Ban on Competition: (2 years for football; 1 yr for basketball)
1. Generally, NCAA legislation provides that a post-season ban is a presumptive penalty for a major violation (Bylaw 19.6.2.1). The COI took into account that this would adversely affect innocent players.
