Thursday, July 7, 2011

Anatomy of an NCAA Enforcement Investigation

image On March 1, regular readers of this blog were forced to suffer through treated to an interminably long post describing the difference between reinstatement decisions made by NCAA eligibility staff and formal enforcement investigations conducted by NCAA enforcement staff. If you studied the lesson, did your homework assignments and passed the quiz at the end, you came out a bit better informed over what seemed like a series of incredibly inconsistent decisions made during high profile cases of alleged NCAA rules violations.

Those who missed that article are the poor souls you see running around teh innernets, Twitter and talk radio shows proclaiming that certain individuals and institutions have already been investigated and found to have done nothing wrong. Hopefully today, we can open some minds and shed some light on a subject that really does need to be better understood by college sports fans and and an embarrassingly large portion of the mainstream media. We need a better understanding of the process by which the NCAA initiates, conducts and concludes a formal Enforcement Investigation.


There are three instances in which the enforcement staff will begin reviewing a situation involving potential rules violations. These are (1) information indicating that an intentional violation has occurred, (2) a significant and improper competitive or recruiting advantage may have been gained, and (3) information that false or misleading information was provided to the institution or the NCAA.

This review is not a formal procedure, nor does it follow any prescribed process outlined in NCAA rules or procedures manuals. Nor does it have any set timeline. It can begin at any time after any of the three triggers are pulled, and it can go on for as long as the enforcement staff needs it to in order for them to gather enough relevant information to determine whether additional investigations are warranted.

Almost anyone can “drop a dime” and get the ball rolling. High school coaches, current or former student-athletes, family members or associates, representatives of other institutions and media reports have all led to formal NCAA enforcement investigations. In some cases, the institution itself has discovered and self-reported major rules violations.

While the NCAA says that it has a high standard of proof to proceed with an investigation of alleged rules violations, it really doesn’t. This is not a judicial process where a certain burden of proof must be met. There is no standard of reasonable doubt or preponderance of the evidence. But if you had to make such an analogy, the best fit would likely be reasonable cause (which is the same burden your local traffic cop must meet in order to search your vehicle for contraband).

However, the enforcement staff still has to take whatever time is necessary to get information from the institution, student-athletes, coaches and administrators, boosters and any number of other outside sources. The process of identifying and interviewing witnesses takes time. In a lot of cases additional information indicates more violations have occurred than originally reported, broadening the scope and extending the time it takes to investigate.

The important thing to remember here is that all of this takes place before…


Following overly lengthy investigations during the late 1990’s and early 2000’s, the NCAA revamped its formal enforcement investigation procedure, such that once the Notice of Inquiry is sent, a six month clock starts and the investigation must be completed within that time frame, or the enforcement staff must notify the institution and either justify extending the new time frame or terminate the probe. While the revamped procedure makes it look like the NCAA has streamlined its investigative processes, the fact that the review process described above has no timeline at all means things can still drag out for many months (even years, as we learned in the USC Reggie Bush case). Nevertheless, once the clock starts, the real heavy lifting begins.

Note this, and remember it: There is no such animal as a “Preliminary Notice of Inquiry.” The NCAA doesn’t chain together NOI’s, each with a new set of matters to be investigated and new time frames. The “PLOI” is a figment of message board posters or people with little real understanding of the process.

The NOI formally notifies institutional leadership that the enforcement staff has officially begun its investigation and describes the alleged facts of the case. The potential infractions are described for each sport involved as well as the individuals involved and the approximate time period during which the violations are believed to have occurred. The NOI also notes that any facts found during the formal investigation may result in additional allegations, related or not to those found in the NOI.

The NCAA does not release the notice of inquiry to the public and leaves the decision to publicize receipt up to the school. The school may or may not be forced to disclose receipt based on the public records laws of the states governing the schools and/or certain federal privacy laws regarding personal, academic or medical information of student-athletes.

The NCAA has limited power to compel cooperation of parties involved in the investigation. It has near complete power to compel cooperation from the institution, its administrators and coaches, and student-athletes. That power drops off considerably when boosters are involved. For private parties not directly connected to the institution, the power to compel is nonexistent. The NCAA cannot issue subpoenas like a grand jury. But another thing worth noting: Failure to cooperate and/or failure to provide complete and truthful information brings a heavy penalty to school officials, coaches and student-athletes. If the NCAA reasonably believes that one or more parties provided untruthful or misleading information to investigators, they are finished. See Dez Bryant, Bruce Pearl and Jim Tressel for examples. Lying to the media is bad. Lying to enforcement is mortal.

After about a six month gestation…


image Once enforcement has determined that rules violations have indeed occurred—and let’s be honest, they almost always determine that they have—the school receives the Notice of Allegations, which outlines the specific rules violations that occurred. All individuals involved are informed of the allegations levied against them as well as any matters alleged in the NOI that were cleared during the investigative process. The parties involved are then given 90 days to review the NOA and respond, but may request additional time.

Unlike the NOI, the ability of the school to keep the NOA under wraps is severely limited. NCAA regulations require that a copy of the document be provided to every individual involved, including boosters, former players and coaches and named witnesses. The NOA also starts the process of scheduling the school’s likely appearance before the Committee on Infractions, which determines whether any infractions are major or minor and determines what penalties are to be applied. Keeping the NOI a secret is pretty easy in many states. Keeping the NOA on the down low is much harder to pull off.

At this point, the investigation itself is over. There are additional procedures that follow the NOA to determine penalties and close the case, but the NOA ends the heavy lifting phase of enforcement’s involvement in the case.

The most important things to remember are that just because a school hasn’t received formal notice that it’s under investigation doesn’t mean that there is nothing to see or worry about. If you are reading media reports indicating that your school is under NCAA scrutiny, then it is and it’s not over until the NCAA says so.

And, as you (hopefully) learned from the reinstatement vs enforcement article, having one or more players determined to be eligible does not mean that an investigation has been conducted, nor does it mean that the player or players are innocent of wrongdoing in the eyes of the NCAA.

Finally, the fact that it’s been so many months since media stories reported potential wrongdoing means absolutely nothing. If anything, having such a period of time elapse probably means there was more stuff to investigate than you thought there was, and the probe is just getting started good.

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