Tuesday, March 1, 2011

NCAA Reinstatement decisions are NOT “investigations”

image This is a necessarily long blog post, but a bureaucratically complicated situation has allowed a great deal of misinformation to be propagated and setting the record straight sometimes takes a little extra bandwidth.

Grab another cup of coffee, settle in and bear with me, please. You’ll come out on the other end better informed and more heavily armed.

Despite repeated public statements to the contrary, a great many people in the media covering Southeastern Conference athletic programs still don’t get it: An NCAA reinstatement decision is not an investigatory procedure. Sports blogs, social media network denizens and discussion board participants aren’t much better and in fact, most are even worse.

Unless you’ve been locked in a dark closet for the last four months, you realize that the most controversial reinstatement decision was made on December 1, 2010, when the NCAA took what appeared to be swift action to reinstate Auburn University Quarterback Cam Newton. Newton was embroiled in controversy after an ESPN report on his 2009 recruitment raised allegations that his father, Cecil Newton, had been shopping his son in a pay-for-play scheme concocted by the elder Newton and Kenny Rogers. The story documented Rogers’ direct business connections to a professional sports agent.

The process that resulted in Auburn’s declaration of ineligibility and the subsequent decision reinstating Newton was NOT an NCAA investigation.

It was a story presented to the NCAA Eligibility staff that was written, produced and directed by Auburn University. Accordingly, statements in the media, on blogs and elsewhere on teh innerwebs that the NCAA has already investigated Auburn and found no NCAA violations are FALSE.

Here is the straight skinny, directly from the NCAA’s website on Student-Athlete Reinstatement and Eligibility:

The student-athlete reinstatement process provides for the evaluation of information submitted by an NCAA member institution on behalf of enrolled and prospective student-athletes who have been involved in violations of NCAA regulations that affect their eligibility.

The review is to assess the responsibility of the involved individuals and to determine appropriate conditions for the reinstatement of eligibility under standards established by the NCAA membership.

The NCAA student-athlete reinstatement staff issues initial decisions in all cases. The staff’s decisions may be appealed to the Student-Athlete Reinstatement Committee, which is composed of representatives from NCAA member institutions and conferences.

The committee has the authority to amend a staff decision or lessen a penalty, but it does not have the authority to increase a penalty. The staff meets with the committee regularly to discuss philosophy, process, policies and guidelines for processing cases.

Student-Athlete Reinstatement Q&A

What is student-athlete reinstatement?
It is the process schools must use to restore the lost eligibility of student-athletes involved in NCAA rules violations. On average, the NCAA receives more than 1,000 reinstatement requests annually, and nearly 99 percent of these requests result in the student-athlete being reinstated.

How does it work?
When a school discovers a student-athlete has been involved in a violation, it must declare the student-athlete ineligible, investigate the violation, and forward its report with a request for the student-athlete’s eligibility to be reinstated to the national office staff.

Who makes the decisions on reinstatement cases?
The NCAA student-athlete reinstatement staff makes the initial decision regarding reinstatement of a student-athlete’s eligibility. The staff has been given this authority by the NCAA Committee on Student-Athlete Reinstatement. The committee is comprised of representatives from NCAA schools and conferences. It has final authority for all reinstatement decision appeals.

What does the staff consider when reaching its decision?
The staff considers a number of factors when deciding each case. These include the nature and seriousness of the violation; any impermissible benefits received by the student-athlete; the student-athlete’s level of responsibility; any mitigating factors presented by the school; applicable NCAA guidelines; and any relevant case precedent. It is rare that the facts of two cases are identical. [ed. note: this is a fatally flawed approach to NCAA decision-making, covered here and again later, here.

What are the possible outcomes in reinstatement decisions?
Student-athlete reinstatement decisions result in one of three possible outcomes. The staff may reinstate a student-athlete’s eligibility without any conditions. A student-athlete may have his or her eligibility reinstated with conditions on the student-athlete, such as sitting out a specific number of contests or donating the amount of any impermissible benefits received to a charity. Or the student-athlete could lose all remaining eligibility, which is extremely rare.

How is the information gathered to determine reinstatement decisions?
Student-athlete reinstatement decisions are based on an evaluation of the information provided to the staff by the involved school, given the NCAA reinstatement staff’s role is not investigatory in nature. While the student-athlete reinstatement staff may ask additional questions related to the reinstatement request, it is the school’s responsibility to provide all necessary information for the staff to consider.

Can a school appeal the NCAA decision?
A school may appeal decisions made by the reinstatement staff to the Committee on Student-Athlete Reinstatement. The committee can reduce or remove the reinstatement conditions, but it cannot increase the conditions imposed by the reinstatement staff.

How long does the reinstatement process take?
It depends on the complexity of the case. Most requests for reinstatement are resolved in about a week after the school has provided a complete request and the reinstatement staff has all the necessary information. For serious or complicated violations, there is no timeline.

Media Pollyannas and Auburn Sunshine Pumpers need to pay really, really close attention to the emphasized portions in the block-quote text above. The Cliff Notes version:

  • The information relied upon is produced by the member institution and is not the result of an NCAA investigation.
  • Virtually every one of the decisions results in reinstatement. That is, Newton ain’t special.
  • The Eligibility staff is not an investigative staff. They did not, nor do they ever, conduct their own investigations.
  • The short time between Auburn’s declaration of ineligibility and the NCAA decision reinstating Newton is not unusual or indicative of innocence.

As so clearly indicated in the NCAA’s statement on Newton’s eligibility and in subsequent media reports, the case is not closed. As late as two weeks ago, NCAA investigators were expanding their probe.

A separate division of the NCAA conducts enforcement investigations, which directly address both institutional and individual wrongdoing in potential violations of NCAA bylaws. This is a separate and independent process unrelated to determination of eligibility. 

Again, the straight skinny from NCAA website on Enforcement: [ed. note: some portions of the text below is edited for brevity]

How does the process work?

Possible violation discovered

There are three things that will trigger the enforcement staff to review a situation – if information obtained indicates that an intentional violation has occurred, that a significant competitive or recruiting advantage may have been gained, or that the institution or the enforcement staff has been given false or misleading information.

How investigations begin

Investigations can start through the enforcement staff or by high school and college coaches or student-athletes who contact the NCAA to report a potential rules violation at an NCAA member school. Many times, the school discovers a violation and reports themselves to the enforcement staff.

The time an investigation takes varies on each case. The NCAA enforcement staff has a high standard of proof to proceed with an allegation of  rules violations. The enforcement staff must take the time necessary to obtain complete information from individuals involved and outside sources. It also takes time to locate and coordinate interviews with involved individuals and their legal counsel. In some cases, as additional information is uncovered, more possible infractions are uncovered which broadens the scope of the investigation and takes more time to investigate. Involved schools may request additional time to respond to allegations, which may impact the timeframe.

Letter of Inquiry sent

When the enforcement staff begins to review a situation, the NCAA sends a notice of inquiry to the NCAA member school’s president or chancellor. Usually an enforcement investigator is assigned to conduct in-person interviews.

The notice of inquiry tells school leadership the enforcement staff will be investigating the school. The alleged facts of the case are also presented including the potential violations by sport, the approximate time period associated with the potential violations and the involved parties. The enforcement staff also includes an approximate time frame for the investigation and notes any facts found during the investigation may cause additional violations, related or not, to be identified.

The NCAA does not release the notice of inquiry publicly, but the school may choose to release the letter or confirm its receipt.


The enforcement staff conducts an investigation to determine whether adequate information exists to indicate that a major violation of NCAA rules occurred. The amount of time an investigation takes depends on each specific situation.

Each case has a unique set of individuals, issues and circumstances so there is no single way to conduct an investigation. However, there are similarities in all investigations.

Preliminary information is reviewed by the investigator(s) assigned to the case. The investigator first tries to speak with the source who reported the potential violation.  This interview is “on the record” and electronically recorded if possible. If the source anonymously reported the potential violation, the NCAA enforcement staff cannot use the information to prove a violation occurred, but they can use the information to find others who may have information about the situation.

Before the enforcement staff contacts those directly involved with the potential violations, they attempt to gather as much information as possible. The goal is to minimize the possibility of those directly involved compromising the integrity of the case by working with others to change the information reported to the enforcement staff.

If NCAA enforcement staff conducts interviews on campus with enrolled student-athletes or other individuals, school staff members may be present during the interviews. Everyone interviewed by NCAA enforcement staff may have legal counsel present during the interviews. In many cases, information such as long-distance telephone records, bank records and academic transcripts are also collected during the process.

NCAA enforcement regulations and student-athlete eligibility procedures employ many traditional due-process protections. Of note, the enforcement staff tries to tape-record all interviews.  Those that cannot be electronically recorded are transcribed or summarized.

If the enforcement staff has gathered enough information to determine if rules violations have occurred, the process continues.

School notified of alleged violations

If the enforcement staff discovers the school has committed one or more major violations, school leadership is sent a notice of allegations that contains specific alleged rules infractions against the school. After the letter of inquiry is sent, the enforcement staff must send the notice of allegations within six months.

The notice of allegations tells the school and all involved individuals the alleged violations the NCAA enforcement staff found during the investigation process. The involved parties have 90 days to respond and may request additional time if necessary.

If during the investigation process the enforcement staff determines the information no longer indicates a rules violation, the school receives written notice the investigation has concluded.

If the investigation process lasts longer than one year after the notice of inquiry is sent, the enforcement staff has to review the status of the case with the NCAA Committee on Infractions. If the Committee on Infractions believes the investigation should continue, the school will receive notice in writing and status reports at least every six months until the case has come to a conclusion.

School responds

When all involved parties have responded to the alleged rules violations found by the NCAA staff, a hearing date is set with the Committee on Infractions.  A prehearing conference with the school and other involved individuals is held four to six weeks before the hearing. During this conference call, the allegations are discussed.

Case Summary compiled

Before the hearing, the enforcement staff writes a case summary. The case summary documents the allegations, the involved individuals, any outstanding issues and other information relevant to the case. At least two weeks before the hearing date, the individuals involved with the hearing and the Committee on Infractions receive the case summary.

Summary Disposition

If everyone associated with the investigation agrees about the facts and the penalties presented in the report, an in-person hearing does not have to take place. This process is called a summary disposition and is a cooperative process between the school, involved individuals and the NCAA enforcement staff. …

Committee on Infractions hearing

Penalties announced

Explanation of penalties

The intent of the penalties is to ensure they are sufficient enough to deter schools from breaking the rules again. Unfortunately, some sanctions – like the ban on postseason competition – are deterrents but also negatively impact innocent student-athletes. While unfortunate, NCAA-imposed sanctions are meant to be punitive.

NCAA rules do allow for current and former coaches to face punishment if involved in major infractions. The Committee on Infractions can require a member school to take certain disciplinary action against an individual that could affect their athletically related responsibilities. If the school refuses, they could face additional penalties from the Committee on Infractions. If the coach or other individuals are no longer at the school where the infraction occurred but are now working at another institution, the Committee on Infractions may request the current school to take action against the individual, even if the school was not involved in the infraction.

If a booster is named in a violation, the Committee on Infractions may take action. In some cases, a school will be required to disassociate a booster from the athletics program, either on a permanent or limited basis. This means the school could not accept any assistance from the booster to help with recruiting or supporting current student-athletes; decline financial assistance for the athletics department; provide the individual with no athletics benefits or privileges not provided to the general public; and take other actions against the individual to eliminate their involvement with the athletics program.

Opportunity for appeal hearing

Both institutions and involved individuals may appeal findings and penalties to the Infractions Appeals Committee.

Here’s the Cliff Notes version once more, for those of you with less patience:

  • Enforcement investigations are separate from eligibility and reinstatement decisions.
  • A high standard of proof exists in order for the NCAA to begin or continue an enforcement investigation.
  • Enforcement has the ability to expand their investigation of the institution and examine additional evidence of violations, whether those matters are related to the original allegations or not.
  • The staff will take extraordinary precautions to prevent individuals from being dishonest and coordinating their stories. See the Dez Bryant and Bruce Pearl cases, for example.
  • The process is time consuming.
  • While unfortunate, any sanctions imposed are intended to be punitive.

It is a FACT that the decision made on December 1 was not the result of any NCAA investigation. It was the end of a process in which Auburn University conducted its own probe and told a story to the NCAA eligibility staff.

It is a FACT that NCAA Enforcement investigations are time consuming and would necessarily not have been concluded by December 1.

It is a FACT that the NCAA Enforcement investigation is not only ongoing, but expanding.

It is NOT KNOWN whether recently revealed evidence consisting of recordings of conversations between the Newtons and others involved in the pay for play scheme (a scheme to which the elder Newtown has copped) were provided to the Eligibility staff prior to December 1. However, since the member institution was responsible for writing, producing and directing the story told to the NCAA, you’re betting that that evidence didn’t make the trip, aren’t ya?

The meme being propagated by the AU Sunshine Pumping squad is bogus. Disabuse yourself of the notion that there is no investigation; that any investigation is failing to produce anything incriminating; that the investigation has concluded and everything is fine.

Exit Quiz Question: In the case against Southern Cal, and in the most recent case against Tennessee, the NCAA documents alleged that the member institution “knew or should have known” that what was going on constituted an NCAA violation. What process—eligibility determination or enforcement investigation—produces evidence in support of such a statement?

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Bandit said...

This is an extremely informative post. Good work.

jj said...

My only question would be why has Bond stated from the beginning he had nothing that pointed to Auburn, yet Moore claims he heard his tapes and they are damning to Auburn. Somebody is a liar and I guess we will find out soon enough.

David L. said...

My only question would be why has Bond stated from the beginning he had nothing that pointed to Auburn, yet Moore claims he heard his tapes and they are damning to Auburn. Somebody is a liar and I guess we will find out soon enough.

You are misinterpreting the context of Bond's "nothing to do with Auburn" comment. He was not referring to the contents of recordings or text messages. He was referring to his motivation for coming forward with the information he had regarding Cecil Newton's scheme to sell his son's services. That is, "this has nothing to do with Auburn" means that he never intended to bring Auburn into it. He was trying to protect Mississippi State.

Bond's comments therefore, do NOT conflict with Moore's stated belief that the contents are incriminating for Auburn.

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