On Oct. 30, the NCAA Division I Board of Directors adopted legislation that changes the landscape of addressing NCAA bylaw violations. Although the legislation is welcomed by many, it provides several challenges moving forward.
The board approved a four-tier violation hierarchy for classifying bylaw violations. This replaces the former system of classifying violations as either major or minor, which led to drastically different types of violations being categorized together. Under the new system, violations will be classified under one of the following levels:
I. Severe breach of conduct
II. Significant breach of conduct
III. Breach of conduct
IV. Incidental issues
This new model empowers the NCAA Committee on Infractions with more discretion in determining the severity of punishments, focusing on the substantiality of the recruiting, competitive or other advantage gained.
The board also approved the expansion of the Committee on Infractions from 10 to 24 members. In doing so, the board hopes to increase the efficiency of the investigatory process, which sometimes took years to complete. Finally, the board voted to place more accountability on head coaches, focusing on removing the “risk-reward” analysis that so often has driven head coaches to violate the bylaws. Through its bylaws, the NCAA seeks to eliminate competitive advantages. However, with the increasing commercialization of college athletics, coaches are tempted to act unethically and develop a “win-at-all-costs” mentality.
Unfortunately, it is often the university, along with a new coach, that has to absorb sanctions imposed for the acts of prior coaches. In many instances, universities are left rebuilding while the prior head coach goes unscathed, departing for greener pastures. The new legislation was enacted to help prevent this problem. Now, universities and coaches both may be charged with violations, and, if a coach changes jobs amid an investigation, potential sanctions will follow the coach.
Under the new model, coaches can no longer turn a blind eye to impermissible conduct. Head coaches are now presumed to have knowledge of all actions or omissions in their program and may be penalized individually for violations committed by staff, unless they can prove they took measures to prevent such conduct. As explained by Ed Ray, chairman of the NCAA board, the onus is on the coaches:
“We expect head coaches to provide practices and training and written materials that instruct their assistant coaches how to act. If they’ve done that, it can become mitigating evidence that they shouldn’t be held accountable for what [a member of their coaching staff] did. But head coaches have to have these things in place or the presumption will be that they didn’t care enough to set standards and take responsibility for their programs. If there is no guidance and an assistant goes rogue, then it’s partly the head coach’s fault and he/she should be held accountable.”
Simply stated, head coaches are on notice. No longer will claiming lack of knowledge prevent individual sanctions.
Meeting new demands, obligations
So what are head coaches to do? Years ago, similar language rocked the employment world. In Faragher v. City of Boca Raton, the U.S. Supreme Court held that an employer may be liable for discriminatory acts of its supervisors if it cannot demonstrate that it exercised reasonable care to prevent and correct the behavior. This decision began a renewed emphasis on developing policies and training for the benefit of both supervisors and employees. NCAA head coaches are now faced with the same burden: train staffs or face sanctions.
HOLDING COACHES ACCOUNTABLE
Under new NCAA accountability rules, college head coaches must now act more like employers.
Among their duties:
1. Develop written policies, promoting an atmosphere of compliance.
2. Ensure that their staffs learn and understand the policies.
3. Provide written materials and conduct follow-up training to emphasize new developments and remind their staff of its obligations.
Head coaches must now act like an employer. First, coaches must develop written policies, promoting an atmosphere of compliance. These policies must include expected behaviors and procedures for reporting potential violations. The policies should also contain anti-retaliation provisions to encourage coaches to report potential violations.
Second, head coaches must ensure that their staffs learn and understand the policies. Successful implementation requires extensive and ongoing training, focusing on the policies and procedures and potential gray areas. The responsibility of training often falls on the university’s athletic compliance staff. However, due to limited resources, many institutions will turn to outside counsel for assistance. Outside counsel, experienced in conducting investigations, will likely bring a fresh and unbiased perspective and can often review policies for deficiencies, assist in implementing procedures, and in developing and conducting training programs.
Finally, head coaches should provide written materials and conduct follow-up training to emphasize new developments and remind their staff of its obligations. They should also conduct occasional meetings to address actual situations to further promote the atmosphere of compliance.
Typically, universities stand to lose in light of NCAA investigations and sanctions; however, head coaches now face just as much pressure. In addition to potential NCAA sanctions, head coaches face potential damage to their personal and professional reputation. With the right preventive steps, head coaches can eliminate these risks and avoid liability. The model is not new. It exists in the employment context.
Head coaches, the time has come to start thinking like an employer.
Gregg Clifton (gregg.clifton@jacksonlewis.com), Paul Kelly (paul.kelly@jacksonlewis.com) and Bethany Swaton Wagner (bethany.wagner@jacksonlewis.com) are attorneys in the collegiate and professional sports industry group at the national workplace law firm of Jackson Lewis.
