Steal One, Fine Ten: NCAA Needs to Change its’ Entire Compliance Paradigm

On June 6, we wrote about the need for the NCAA — as long as it seriously purports to oversee and vigorously regulate the conduct of member schools and athletes –  to require that (at least Div. I) revenue-sport coaches, AD’s and compliance chiefs achieve Compliance “Certification.”  The Georgia Tech decision last week, and the simmering OSU case, just make that need all the more obvious.

Look at what happened at Georgia Tech:  after the Compliance Director had been specifically told in a personal one-on-one conversation with NCAA Compliance NOT to relay any of the information about the pending investigation (to persons other than the President and AD), there then results –  incredibly -within ten days, a meeting Chaired by the AD, which includes the player involved, the football coach, the in-house counsel and the Compliance Director.  At which, it appears, a different version of clothing-donation events was, shall we say, coached out of the player.  Subornation of perjury is the coaxing of another to present false testimony; it is serious, and a crime, as regards both civil and criminal settings.  However much these circumstances may have resembled that kind  of behavior, the NCAA never bothered to assess.  And it didn’t have at its’ disposal any effective tools to sanction those individuals involved in this none-too-subtle and deliberate effort to affect the outcome of the case by surreptitiously meeting with a witness.  These “leaders” of the GT upper-management Athletics staff basically thumbed their nose at the NCAA.  (And if you disagree with this assessment, go read the text of the statements after the NCAA handed down the sanctions — they try to act as if it’s no big deal, and they even attempt to spin events to avoid individual culpability.)

People think that their lives are ruled by reason.  They are, in the main, however, ruled by custom and habit.  And the NCAA’s enforcement structure, and the compliance-mindset of its’ members, have long been habitually and narrowly trapped using only one of many potential “enforcement” or “regulatory” paradigms, without considering other perfectly (or more) suitable options. And the existing NCAA regulatory paradigm — assuming  the NCAA has a real, live and good faith interest in regulating and enforcing (which may be a naive assumption) — is not working.

Let’s take a quick look at a few such alternative regulatory paradigms:

1) On-site, one-on-one, Review and Certification:  If you want to remodel your kitchen, or add-on to your house, in most cities this requires both a building permit and, at some point (usually upon completion) a sign-off personal visit by the City Inspector.  This is the “Regulate Every Unit” regulatory model, which tends to keep people pretty honest. But it’s expensive because it requires many man-hours of on-site review.

2) Licensing or Certification of Trades: In every state there exist complex training and certification/licensing requirements for almost all trades.  These presumably exist to insure that the certified person shows a minimal level of skill and education sufficient to allow the state to presume that work performed by that person in the trade meets a minimum standard, to protect the public.

3)  Random Audit: Then look at the IRS, which audits — by reviewing, top-to-bottom, all data and records the taxpayer has –  only a very small -and randomly chosen-  percentage of returns.  It can’t afford to audit every return. This regulatory model saves time  and money, and uses the threat of audit, and resulting fines for non-compliance, in an attempt to keep people honest.  Many New York City Chinese food stores use a variant of this system, by posting on the wall a sign which says, “Steal One, Fine Ten”, meaning that if you are caught shoplifting, you have to immediately pay to the store an amount which is ten times the cost of the item.

4) Self-Audit With Severe Penalties if Subsequent Field Audit Finds Errors in Reporting —  Assign Annual Oversight Complete Audit Self-Report responsibililty to Each Business:  This is a variant of the IRS Audit model, and is one which some OSHA regional offices around the country use.  The OSHA office provides the (lengthy) form, and informs the business that it can avoid an OSHA “on-site” audit by filling out the form with data derived from a very exhaustive “self-review.”  The OSHA office then choses a small percentage of such “Self-Auditing” entities upon which it will perform its’ own top-to-bottom on-site audit.  If that on-site OSHA follow-up review produces evidence of material violation or pattern of violation, OR finds evidence of such violations from any other source — which conflicts with the data filed in the Annual Written Self-Audit Report submitted by that business, then the penalties are swift and very severe (as in Steal One, Fine Ten.)

The NCAA does not visit every school every year to do an (Option #1 above) one-on-one review. Nor does it require Coaches, AD’s or in-house Compliance staffers be “Certified”, as in Option #2 above. Nor does it have in place a well-advertised intention to randomly choose several schools which it will subject to a top-to-bottom scrubbing, as in Options #3/4 above. It does, however, require the schools’ coaches to file an annual form attesting that he/she is not aware of any extant NCAA violation. (OSU Coach Tressel filed such a form, swearing that he knew of no NCAA potential violation, in September 2010  — at a time, we now know with certainty, he was, in fact, aware of potential NCAA violations created by Terrelle Pryor and other football players who exchanged memorabilia for tattoos or other favor.) And it requires numerous other filings by the school’s own Compliance staffers, though the combined effect of those required filings does not, it appears, reach the level or rigor of the “top-to-bottom” Self-Audit reporting described in Option #4 above.

Three other factors need to be noted as a part of this review.

First, the NCAA deals with billions of dollars of gross income; it has member schools with half a billion dollar annual budgets. The new mountain of cash is so radically more substantial than it was even 15 years ago, that this factor alone requires that the NCAA re-evaluate the steps which are reasonably within its’ reach to improve its’ entire compliance function.

Second, online education has swept every corner of education, allowing even advanced degrees to be gotten entirely online. Many Community Colleges allow students to take all 4 course per semester online.  The NCAA’s entire training process needs to be, more standardized. The Michigan/Rich Rod NCAA story involved, by way of example, claims by Rodriguez that he didn’t know that what he was doing was in violation of the ByLaws. Having read the long record in that entire case, I can tell you that any good faith evaluation, by any reasonable person, would reach the same blunt conclusion about RR’s claim:  there was no way in hell Rodriguez didn’t know what they were doing was a NCAA violation.   But the NCAA nonetheless bought that preposterous claim, after wasting huge time and resources trying to parse out exactly what was “taught” in each of Compliance Dir. Van Horn’s six annual superb training sessions.  In buying RR’s bogus excuse, the NCAA effectively reduced the solid, competent and thorough Michigan compliance training process to the status of a “Dog-and-Pony-Show.” And because the NCAA so frequently entertains this “Gee, I didn’t know” excuse from coaches (it is their favorite one), they have turned many such compliance training efforts into similar Dog & Pony Shows.  It all needs to have a standardized curriculum, so that the NCAA can zip past these “didn’t know” excuses by saying, “Hey, if you slept through, you did it at YOUR peril, not ours, pal.”

New Paradigm:  The NCAA must: 1) certify Coaches, AD’s, and local in-house Compliance staffers; the fear of certification revocation is the kind of effective “remedial” and deterrent measure  missing in the current framework; and 2) standardize, centralize, and put online (to the extent reasonably possible) the curriculum for any Compliance training. And use the “Steal One, Fine Ten” to include sanctions which have some impact on the certification of that Coach, AD, or compliance officer. The penalty should be severe.

How would this change things?  Right now, the Coaches and AD’s continue to skirt the rules  primarily because the personal professional consequences, in the NCAA’s current enforcement scheme, are so tepid.  For example, the Georgia Tech AD, Football Coach, and Former Compliance Officer should — based on the pattern of deliberate and knowing violation of a specific NCAA directive — have had their Certification revoked, causing both personal embarrassment and loss of earning power.  (Their behavior, based on just the information contained in the decision, so obviously flaunts a direct verbal order that it amounts to insubordination: what part of “NO” didn’t they understand? And Jim Tressel‘s obvious deliberate lie to the NCAA, on the Sept. 2010 form he filed attesting to an absence of any known potential violations, ought to subject him to the same kind of loss of Certification and earning power.   You would see a whole lot of Coaches and AD’s sit up and pay much closer attention.  And the NCAA’s whack-a-mole spiralling number of major-college violation and investigations would plummet.  The NCAA needs to get with the 21st century — assuming (perhaps unfairly) that its’ ostensible interest in compliance with its constitution and bylaws is not a sham.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Certification of NCAA Coaches, Georgia Tech Football, Jim Tressel, NCAA Enforcement, NCAA Investigation, NCAA sanctions, NCAA Violations, Uncategorized and tagged , , . Bookmark the permalink.

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