Mark Emmert and the NCAA at the Dollar Store: Cheap Good NCAA Fixes

This is the first in series of low cost, in fact – cheap – fixes which we will list daily here for Mark Emmert and his NCAA.

Who I know are short of money to fix his NCAA regulatory/enforcement system. So below is the first in a coming list of the kinds of cheap bubble gum, duck tape, and piano wire Emmert and the NCAA can use to make that system work a whole lot better.

I know the latest word is that the re-draft of the NCAA Bylaws is taking “longer than expected.” So it might be awhile. And god knows it’s like herding wide receivers to get the NCAA members to agree on anything, anyways.

So let’s go for the small, good, cheap fixes. Easy, simple, cheap.

No. 1: Require every school to immediately record and report every reported potential violation. To make this really clear, potential means “possible.”

Why this is Easy and Cheap: In this digital age, it’s one document, for each school. One excel spreadsheet, for one whole year. Mark, if you need to hire me as a “consultant” on this, you can, for small bucks. But really, just go to Google Docs, open up a spreadsheet, and make it so you and the compliance people at the school can both “view” and “edit.” And give each reported “event” a Bates Stamp number. Or call it an Emmert Stamp number. Whatever. No need to even buy a postage stamp. No cost. That’s all.

Why this is good: Below, Mark, is what you’re gonna get for responses, if, say, right now, you polled every single person, top to bottom, in every compliance operation across the country, on the following question:

What is the threshold standard which triggers an obligation on the part of the school to report a violation of NCAA bylaw or rule to the NCAA?:

a) “certainty” that a violation occurred;      70%
b) probability that a violation occurred;      20%
c) possibility that a violation occurred; or     5%
d) “potential” that a violation occurred.         5%

The first problem here, if these estimates are anywhere close to being accurate, is that you have, Mark, a very big problem with what some local compliance people think is “wiggle room” in your bylaws and regulations: how could there be so much confusion about something so absolutely fundamental?  The primary reason is that there is great need, at the local level, to hide violations from the NCAA.  So the bald truth is that most compliance people will opine that they need “certainty” before they’ll report to the NCAA

Let me be clear though: this polling reflects not just confusion. It shows bureaucratic self-protection: the local compliance people gravitate toward using the “certainty” standard, because everyone locally wants to avoid any NCAA inquiry or sanction.

The widespread application of this “certainty” threshold is a major factor undermining your entirely regulatory framework. All the local guys with brooms, mops, and Handi-Wipes come in, quick and fast, while the other guys with clipboards are trying to gather information. And to be clear, I believe a fair reading of your Bylaws right now is that they, indeed require immediate report of possible violation. It’s just that your members are playing it at tad fast and loose, or are just ignorant. Or both.

The second problem, Mark, is that Choice A is for morons, since even your own COI (Committee on Infractions) operates on a rough “preponderance” standard. Wouldn’t you agree it makes no sense for “local” compliance staff to hold off reporting any violations until they are “certain” that one occurred — when your entire NCAA COI process expends its’ manpower and time on trying to prove that a violation is “more likely than not?”

And here’s why this isn’t some half-baked, novel method of administrative/regulatory oversight: many, many systems use this “Report all Potential Violations” requirement. The Nuclear Regulatory Commission. Probably your own E&O Insurance Carrier — and most liability carriers. OSHA. The list is endless. It’s really good, well-accepted, state-of-the-art practice.

So basic that even your doctor uses it. Do you wait to report to him that you have a lump under your arm until you are “certain” that it is metastatic cancer? No. Reporting a “potential” problem is hardly a novel, or burdensome idea. It makes all the sense in the world. It allows the NCAA to track appropriately. Allows your staff to make a phone call, follow up if necessary. And it keeps the local staff honest. Frankly, and perhaps more importantly, it takes heat off of the local school compliance staff, who are always under pressure from coaches to “ignore” things.

It also allows your staff to discover fraud at the local school. Here’s an example of such big-time fraud. On January 13, 2011, according to OSU Compliance Dir. Archie, AD Smith, and President Gee, they first discovered the bombshell Tressel emails. Which emails showed at least prima facie, though pretty obviously unequivocal, evidence that Jim Tressel had engaged in deliberate fraud for nine months. (Fraud is difficult to prove, but go look up all nine elements, you’ll see that, with the Tressel email trail, it’s simple.)

The point is that, if the NCAA hadn’t let all these local compliance people build the fiction that “certainty” is required before the reporting duty arises, OSU would have had no “wiggle room” to avoid reporting discovery of Tressel’s fraud, and the failure of Archie, Smith and Gee to enter the information on the Google Doc spreadsheet database that very day would have been evidence that they had joined in on the fraud (which was, in fact, what happened) and had begun their own coverup of the fraud (which is what went on, and which continued in rather breathtaking scope for the ensuing months.)

And your NCAA staff would’ve known about Tressel’s fraud on that very January 13. (Remember, Mark, when Gee, Smith and Archie finally reported the Tressel fraud to your staff on February 4, three weeks after they discovered the plain fraud, the NCAA staff skedaddled over to Columbus within less than two business days.)

But here’s what happened: AD Smith, Compliance Head Archie, and President Gee all hid the evidence of fraud from the NCAA. Not for one day. For three weeks. And their excuse? – I am guessing — they weren’t quite “certain.”

And, just so you know, Mark, Gee and Smith and Archie continued to thumb their noses at your staff, figuring that your staff would countenance additional actions taken by OSU to fool the NCAA over the coming months. Which your staff did, in fact, countenance.

So here’s what you do. Just mention this once at your next press conference. Google Docs. Spread Sheet. One per year, per school. Report any potential violation.

Particularly when it’s going to cost you zero dollars.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Gene Smith, Jim Tressel, Mark Emmert, NCAA Enforcement, NCAA Investigations, NCAA sanctions, NCAA Violations, Tressel coverup and tagged , , , , , , , . Bookmark the permalink.

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