Due Process and the NCAA

A finding of wrongdoing by the National Collegiate Athletic Association can cost a coach his job, an athlete her eligibility, or a university a shot at postseason competition and hundreds of thousands of dollars. Given those high stakes, it is hardly surprising that the association's procedures for investigating and punishing recruiting and other misdeeds is a litigation magnet, drawing multiple lawsuits over the years accusing the association's investigators of unfairness or worse. "Suing the NCAA is an indoor sport," as Myles Brand, the association's president, put it in an interview Monday.

Partly to protect itself -- to "manage its risk," in lawyer-speak -- the NCAA commissioned an external study last year of the efficacy and fairness of the procedures it uses to investigate alleged wrongdoing, mete out penalties, and hear appeals. Monday, the association said the review had found that its enforcement and infractions procedures "compare favorably" with federal, administrative and state court standards.

"Even though the Supreme Court of the United States has ruled that the NCAA is not subject to due process requirements of the Constitution, it nonetheless substantially abides by those requirements," James C. Duff, a Washington lawyer who conducted the review, wrote in an executive summary of his findings. (The NCAA chose not to release the full report, Duff wrote, because it was commissioned in part as a result of recent ligitation, and is therefore "produced as attorney-client privileged communication" and, as such, "is not a public document.")

At a news conference at which the report was released, Duff said he went into the investigation sharing "some of the common misperceptions" about the NCAA's investigative processes, such as that the NCAA staff engages in "selective prosecution" and that association officials have "unchecked power." Such charges have been made in lawsuits against the association, including one brought last year by two former football coaches at the University of Alabama, and in Congressional hearings, like one held in 2004 by the House Judiciary Subcommittee on the Constitution, whose chairman, Rep. Steve Chabot (R-Ohio), said at the time: This hearing is about fairness, particularly the fairness the NCAA displays in enforcing its rules. Merited or not, the NCAA has at least the perception of a fairness problem."

The latest flurry of scrutiny follows one more than a decade earlier, driven by a lawsuit by Jerry Tarkanian -- the former men's basketball coach at the University of Nevada at Las Vegas and California State University at Fresno, and perhaps the most wanted man in the history of college basketball -- that prompted the last major review of the association's enforcement procedures.

That panel, which was headed by the late Rex E. Lee, the former U.S. solicitor general and president of Brigham Young University, and included the former Supreme Court Chief Justice Warren Burger, recommended a series of changes that included opening infractions committee hearings up to the public and hiring former judges and others to hear infractions cases. Many of its most dramatic recommendations were tabled.

Duff said Monday that his review, which he said had been based on interviews with people inside and outside the association, had found his own assumptions and those of critics to be unfounded. That doesn't mean, he said, that the association provides all of the elements of the due process that governments or public law enforcement agencies do, "nor should it": "It does not have the resources of the government and it is a self-policing, voluntary membership organization," he said.

But that doesn't mean the process is perfect, Duff said, and he recommended more than 50 changes aimed speeding up the time it takes for the NCAA to handle enforcement cases and better explaining the association's procedures and policies to the public.

Among the proposals:

• Hiring more enforcement staff and providing better training to investigators before they participate in inquiries.
• Hiring a "reporter of decisions" to review all infractions decision, news releases, and other publications related to the NCAA rule making and enforcement process, to ensure their accuracy. This recommendation, for which Bernard Franklin, the NCAA's senior vice president for NCAA governance and membership, said someone had already been hired, was motivated in part by an "inadvertent human error" in which an NCAA secretary sent out mistaken information that resulted in litigation against the association, Duff said.
• Mandating that a coach or other official who seeks to appeal an NCAA finding to do so only if he or she has appeared at the Committee on Infractions hearing at which the original penalty or finding was initially dictated.
• Letting institutions ask the infractions committee to reconsider an imposed penalty, rather than having such a challenge go before the association's appeals committee.

Brand, the NCAA president, said at Monday's news conference that he would be surprised if the new report "slows down or minimizes in the future the litigation we have had."

And he's probably right, judging from the reaction of Thomas T. Gallion III, a Montgomery, Ala., lawyer who is representing the two Alabama coaches who have challenged the NCAA's enforcement procedures. He laughed out loud told that the report had concluded that NCAA procedures provide due process that "compares favorably" to those of the federal government. "If they give you due process, that's news to me," he said.