On May 26, 2011, the NCAA Division I Infractions Appeals Committee issued its decision in the University of Southern California (USC) enforcement case. Perhaps the most important aspect of the decision is the impact it may have on current NCAA enforcement cases (e.g., the Ohio State University, University of Miami, University of North Carolina, etc.). Specifically, the appeals committee’s addressed whether the Committee on Infractions was bound to case-precedent when implementing penalties for current cases. The appeals committee noted, “the principle of guidance from prior decisions is not an unyielding directive. It is instead a matter of considered judgment to be applied along with all other factors which this committee has recognized should guide the Committee on Infractions and this committee.”
In essence, the appeals committee has provided the Committee on Infractions a great deal of latitude in finding a violation and issuing a penalty. This subjectivity could lead to inconsistent results, which would adversely impact the due and fair process rights of parties in the enforcement process. While the NCAA, as a voluntary association, has largely been left alone by courts, when a voluntary association violates a member’s property or civil rights or when an association enforces its rules in an unlawful, arbitrary or malicious manner, courts will intervene.
One possible solution, which would allow the Committee on Infractions the ability to rule on enforcement cases on a case-by-case basis while still maintaining some semblance of consistency, would be the implementation of a system akin to sentencing guidelines. If the NCAA modeled their system after the United States Federal Sentencing Guidelines it would look somewhat like a mathematical equation using the following factors; (1) seriousness of the violation; (2) past violation history of the school (repeat offenders); and (3) aggravating and mitigating factors. First, the NCAA would need to set a base level for different violations. For example, a student-athlete receiving an extra-benefit worth over $500 may be set at a base level of 40. A coach sending a text message to a prospective student-athlete may be set at a base level of 5. This base level may also be increased by specific characteristics of the violation. For example, if the coach had sent numerous text messages to the prospective student-athletes or to multiple prospective students-athletes, the base level would increase to a set amount based on the guidelines.
After the seriousness of the violation was determined the Committee on Infractions would then look at the school’s history in terms of violations. The United States Federal Sentencing Guidelines puts defendants into one of the six “categories” based on his or her criminal history. The NCAA would need to create categories based on a school’s history of violations as well as determine how far into the past the Committee on Infractions can look.
After the determination of the seriousness of the violation and the history of the offender the Committee on Infractions would use a “penalty table” to determine the penalty range for the violation(s) in the case. Following this determination the penalty range could be changed once again using aggravating or mitigating circumstances. Aggravating circumstances would make the violation more serious and would result in a more extensive penalty. Examples of aggravating circumstances could include actions such as a failure by the institution to cooperate with the investigation. Mitigating factors may lead to a lighter sentence. Examples of mitigating circumstances could include actions such as corrective measures taken by the institution prior to the Committee on Infractions hearing or the proactive steps taken by the institution to ensure compliance prior to the violation.
Currently, the implementation of a sentencing guideline-like system has only been informally discussed, but the initial media “buzz” since current NCAA President Mark Emmert discussed this type of system at this past summer’s presidential retreat was positive. However, President Emmert must continue to work with the NCAA staff, conferences, member institutions and other involved parties to ensure that this “buzz” is turned into results.
Justin P. Sievert serves of-counsel to the Michael L. Buckner Law Firm on issues relating to intercollegiate athletics and higher-education law. Mr. Sievert also is a contributing writer for Access Athletes on issues relating to NCAA student-athletes, as well as an adjunct sports law and business law professor at Davenport University.