NCAA Enforcement (of Selectivity)

It's old but it's timeless. And as far as clichés are concerned, it's battle-tested.

"There's nothing to fear but fear itself - and the I.R.S. audit."

Alright, so perhaps I took some liberties. The truth is that's a lesser-used spinoff to the more common saying. It's the Frasier to the "fear itself" Cheers. The "Mama's Family" to the "Carol Burnett" show. It's the "College Years" to "Saved By The Bell".

And do me a favor: disregard that last one. It did Zack Morris no favors.

The point of all this is that in the world of college athletics, an NCAA investigation strikes fear into the hearts of fans almost as much as Uncle Sam's collection arm sending the feared "Notice of Audit" letter. The bite, of course, doesn't have the teeth to it as the guys who got Kapone. But they can still pack a wallop.

There is much misunderstood about the NCAA enforcement process. The truth is that like any system of due process worth the paper it's printed on, there is an evolution of the investigation that takes place. It has some similarities to the American judiciary procedure, though not as an emphatic burden of proof.

The references to the Internal Revenue Service are fitting, in a way. The two organizations share some similarities in the approach and methodology.

The I.R.S., in fact, states in Title 26 of the C.F.R., known as the ‘tax code,' that it's a system comprised of "voluntary compliance" by the taxpayer. There are legal ramifications of such a representation that are too burdensome and wholly irrelevant to get into. But this is how the NCAA conducts its business at the core: asking of its member institutions to comply with bylaws voluntarily.

When you file your tax return, that is, if you file your tax return as you're expected to do, the I.R.S. is essentially asking you to represent to them that you're not only doing your duty but that you're doing so honestly. You're making a warranty that you are accurately reporting income and deductions.

For taxpayers, April 15 is the drop-dead date in which you represent and warrant to them your status. NCAA member institutions have the same obligation in September of the new academic year when they sign a "certificate of compliance."

This certificate, signed by the president of each university, is a seal that all coaches, staff members and officials of the athletic and compliance departments have knowingly reported any and all violations to the university, which has in turn reported said violations to the NCAA.

It's in this vein, that Jim Tressel lost his job as Ohio State head football coach. When Tressel learned of possible violations regarding several of his players in April 2010 through an email from a local attorney, he became guilty of NCAA bylaw 10.1 (Unethical Conduct) which is essentially a generic, overly broad interpretation of, "liar, liar pants on fire."

While the tax code is over 54,000 pages (only 3,832 in the condensed, modern 8.5 by 11 version), the NCAA Division I manual is a less taxing (no pun intended) 431 pages. The principles and procedures described within are too numerous to accurately portray in a single column, but they range from length of playing season, to amateurism, to eligibility, to academic certification all the way to recruiting.

Tasked with upholding and enforcing these bylaws are a staff of less than fifty - half of which (23 as of last summer) are actual investigators. That's just over 20 people to investigate over 1,300 active, fully-fledged NCAA member schools.

According to the NCAA, they handle, on an annual basis, some 25 "major" cases a year and more than 4,000 secondary infractions. In NCAA terms, a major infraction is analogous to a felony and a secondary infraction is similar to a misdemeanor.

How do they pull it off?

Unlike the I.R.S., who has expensive computer software to match your income sources thanks to automated reporting of W-2 and 1099 forms, as well as access to your bank records, the NCAA must take more of a haphazard approach when investigating allegations.  

Typically, an investigation begins in one of two ways: the institution self-reports a violation or the media runs a report of a school's alleged wrongdoing. This makes sense as the workload for the investigative staff is too large to go around chasing phantom leads proactively. Rather, they hunt down the bad guys reactively.

To a man, most people inside of athletics will tell you there's a large benefit to self-reporting secondary violations. It earns you the good graces of the NCAA if you do it often enough, sort of a ‘get out of jail free card,' and typically the secondary violations are quick and painless and rarely see the light of day. After all, some 4,000 violations a year, you don't hear 99 percent of them. They basically turn themselves in and say, "I am so embarrassed - this was a total accident! I swear!" Then they face the music when the real trouble comes knocking on the door.

When an allegation surfaces of a possible rebel program, it begins the first of what the NCAA essentially summarizes as four phases to the enforcement process: the investigation. The other three, as it naturally follows, are the charges, the hearings and the penalties.

There is no exact science to the investigation process. If the allegation is initiated through a confidential source, anonymous tipster or other informant, the NCAA will first attempt to gain all information they can prior to any formal action. Once they've ascertained they have enough to go further, they'll send a "letter of inquiry" to the school president which will outline the nature of the investigation, how long they anticipate it to last and who they might need to speak with. This is the part of a scary movie when the chilling music is cued.

As people are fully aware, investigations are often time-consuming and not always immediate. Given 1,300 member schools and over 4,000 cases a year among 23 investigators, this is understandable. But the investigations themselves have plenty of obstacles-more than the run-of-the-mill I.R.S. agent must face.

It goes without saying the NCAA lacks something the law enforcement agencies and (allegedly) the I.R.S. does not: power of subpoena. While the member schools are required to comply with investigations, handing over any documents needed throughout the course of an investigation, they're otherwise limited in what they can get from former players, former coaches, street agents or alleged rogue boosters. They could always file a Freedom of Information Act (FOIA) request, but in most cases, that would only cover public schools and they have access to that information anyhow.

If a coach is cheating, generally speaking, they're smart enough to do it off the record. The NCAA has access to public emails and phone records. Many coaches, though, will simply use private emails and disposable personal cell phones if they want to break the rules badly enough.

Investigations can run into several roadblocks. When they do speak with outside sources, often those individuals will bring attorneys to a meeting. Sometimes this limits the scope of what they're able to get answered, especially if there are underlying possible crimes that have been committed. To best maximize the interview process, they use what director of enforcement for the "Basketball Focus Group" LuAnn Humphrey has called a "circle the wagons approach," which in layman's terms means they build as much evidence as possible before going to the infringing parties, hoping to use the evidence against them.

"You figure out what you need to prove or refute, and then you go about doing it," she said earlier this year in an NCAA News article.

After collecting pertinent records, and returning to headquarters with taped or transcribed interviews, the NCAA goes about determining if there's a case. If there isn't enough evidence to proceed, they will simply determine the case to be closed and put the existing evidence in storage should it be needed for future reference. If, however, they decide they'll be moving forward, they send a "Notice of Allegations" to the school and all involved parties.

As a matter of NCAA policy, the enforcement team has six months from the date of the letter of inquiry to file a notice of allegations. This is sort of a misnomer, however, as they have a year after the letter of inquiry to file, and if they don't, then they must approach the Committee on Infractions to explain why the case should continue.

In the notice of allegations, all alleged NCAA violations are spelled out. In a notice of allegations, each specific infraction is assumed to be a possible major violation unless it's designated as secondary. This slightly differs from the legal system in that a person must be arraigned facing either a misdemeanor or felony charge, though a prosecutor can later amend the charges as seen fit.

From the reception of the allegations, a school has 90 days to respond in writing. In the response, a school essentially sweeps through the allegations line-by-line either refuting the charges, admitting they occurred or justifying the charges with extenuating circumstances. It's not uncommon to see a school swallow their medicine and self-impose their own select penalties during this phase. If they do, it's still ultimately up to the NCAA to accept the penalties or add to them.

Two common allegations that get a lot of publicity, but less understanding, are violations that don't really occur from any single act or any specific multiple acts: failure to monitor and lack of institutional control.

These charges are sort of like reckless endangerment charges of traffic offenses. They are not the acts themselves but the degree in which the parties acted irresponsibly. Of the two, failure to monitor is the lesser offense, which is more focused on a specific program within the university. A lack of institutional control (LOIC) is typically reserved for cases that involve multiple sports being investigated by the NCAA at once, though it can be applied as judiciously or as capriciously as they wish.

When an investigation is ongoing, if another sport at the same school has a violation occur, the investigation will almost always be merged into the current process. This can obviously cause a delay in resolution.

Once the investigation reaches its finality, provided no further charges are added (which would precipitate a new notice of allegations), the school will be set up for the next round of infractions hearings. These hearings by the COI (Committee on Infractions), occur over a weekend six times a year - though February and August are the two most common sessions. The COI is a 10-person panel made up of independent legal experts from around the country.

At least a couple weeks prior to the hearing, the institution will receive a case summary from the NCAA detailing the allegations and the school's stance. If the school admits to all the allegations in the report, they will convene with the NCAA enforcement staff to discuss penalties in what is termed a "summary disposition." Collectively, they will agree on possible penalties and forward them to the COI for a final resolution. The COI then ultimately will decide on the penalties.

If, however, the school does not agree to all the allegations, they are given their day in NCAA court. Of course, like "tax court," the preponderance of evidence is greatly against them. The deck is stacked in the favor of the authority. The NCAA infractions hearings do not have the traditional "beyond a reasonable doubt" element and the process itself is one of a selection bias, as if it even gets that far, you're typically fighting a losing battle.

The hearings, which occur in Indianapolis, involve a large contingent of folks from the institution which usually involves the head coach, the athletic director, the president/chancellor, compliance officer, legal counsel and select faculty representatives. The NCAA will also send several individuals including the vice president of enforcement, the person in charge of the specific case and other involved investigators.

During the hearings, an opening and closing statement is made by both sides, sandwiched in between each specific allegation being brought to the forefront with testimony being given by involved parties. After the hearings conclude, the COI will determine guilt/innocence of each allegation and simultaneously decide the punishment for each penalty.

Following the completion of the hearing or summary disposition, it typically takes six to eight weeks for the findings to be sent to the institution. While the ‘burden of proof' for each allegation is loosely defined by the NCAA, it's generally described being based on information that is "credible and persuasive" in nature. If the COI determines the infractions are unable to stick, they're essentially dismissed. If they are determined to be "secondary" in nature, they're simply sent back to the NCAA for appropriate processing, and quietly handled internally.

Once the school has received a copy of the findings, and included penalties if any, they have 24 hours until the NCAA releases a public report. While individual names are not given in the public report, high-profile cases are typically self-explanatory.

The penalties are often subjective in nature. As a rule of thumb, the NCAA says it will often consider deducting two scholarships for every involved individual in a case. So if a football program has five players found to have committed violations, they would start with a loss in 10 scholarships as a rough guideline and adjust upward or downward as appropriate.

Other penalties could include a postseason ban, recruiting restrictions for staff members, loss in eligibility for athletes and vacating of wins if an athlete was determined to be competing while they were ineligible and probation for a designated period of time - which anyone that has been through would tell you is an administrative nightmare by way of paperwork.

The much discussed "death penalty" is not really much of an option, despite its popular reference in our culture. The death penalty, which is not actually named in an official capacity by the NCAA, has been used just five times in the history of the organization and not since 1987. It technically is not even applicable to most programs, as your institution must have been a repeat "major" violator within the previous five years to be eligible for this draconian measure.

The most severe penalties - multiple years without postseason - are given to programs that have the LOIC violation attached. Typically, only one year postseason ban will be given to programs with a failure to monitor charge. Anything less often avoids this punishment. Secondary violations, absent a major violation, are usually violations that are committed without the school's knowledge or consent and involve impermissible benefits of a miniscule amount. Or, in some cases, they involve a coach but only very minor violations were committed without intent.

Should the institution receive penalties they believe are unfair, however, they may request intervention from a separate 5-person appeals committee. This committee is made up of similarly qualified legal minds that serve on 3-year terms.

The appeals process is limited in nature. If a school believes the penalty is unjust or they were wrongfully ‘convicted' so to speak, they can request a new hearing. However, only evidence that was previously used may be used in the appeals hearing.

In order to reverse or modify a decision by the COI, the institution or individual(s) must prove the COI acted contrary to the evidence, they did not actually break NCAA rules, there had been a procedural error by the NCAA that wasn't followed or the penalty was excessive. If none of these standards are met, the appeal is denied. The institution is notified a few weeks following the hearing of the final decision, which is exactly as it sounds - final.

Cynics have noted this process to be selective and conveniently applied. It's more likely the result of an under-staffed, overworked and out-resourced group of investigators. Certainly there have been double standards by the NCAA, and most definitely the rules are all over the map in their sensibility. But some frustration over the applicability has likely been the (lack of) understanding of the process.

Perhaps one day, the I.R.S. can come along and give them a dose of their own cough syrup, maybe challenging their tax-exempt status.

Until that day, all they have to fear is fear itself...and the inevitability of one day catching the I.R.S. tax code in length.