On August 1, 2013, the NCAA will unveil a new enforcement process designed to enhance both efficiency and penalties for rules-violations. Among the changes, the new process will include: (1) four-tier violation hierarchy (replacing the current two-tier structure) that ranges from severe breaches of conduct to incidental infractions; (2) enhanced head coach responsibility/accountability measures; and (3) harsher and more predictable rules-violation consequences (postseason bans, scholarship reductions, recruiting limits, head coach suspensions, show-cause orders and financial penalties) that will be implemented through a penalty guideline matrix. Although it is difficult to predict exactly how the new system will function until the NCAA Committee on Infractions (COI) hears the first case, this article will take a preliminary look at how the system will operate utilizing the recently released case involving the University of Oregon.
Oregon Case Summary
On June 26, 2013, the NCAA Committee on Infractions (COI) issued its decision regarding the enforcement case involving the University of Oregon (Oregon). The COI determined Oregon used a recruiting service provider, who became a representative of the university’s athletics interests, to assist the school with the recruitment of multiple prospective student-athletes. The COI further determined the representative provided cash and free lodging to a prospective student-athlete (PSA) and engaged in impermissible calls and off-campus contacts with football PSAs, their families and high school coaches. Finally, Oregon and former head football coach Chip Kelly agreed they failed to monitor the institution’s football program. As a result, the COI imposed the following penalties:
Analysis Under the New Enforcement Process
Under the new enforcement process, the Oregon case would likely be considered a Level II case, which is for significant breaches of conduct. Under the new system, cases that involve a failure to monitor are presumed to be a Level II case unless the failure is deemed to be substantial or egregious. Here, there isn’t any information in the public report that would cause this case to be shifted up or down a tier.
- Competition Penalties: The COI chose not to impose a bowl ban on the University of Oregon. Under the new system, the COI would have the option of imposing a bowl ban of one-year as a standard Level II violation but would not be required to impose a ban unless an aggravating factor were present. If an aggravating factor were present, the COI could impose a ban of one to two-year years. Here, however, it is more likely the COI would come to the same decision.
- Financial Penalties: The COI chose not to issue any monetary fine on Oregon or more specifically, the football program. Under the new system, the COI would likely have implemented a fine of $5,000 as the standard Level II violation. The COI would also have had the option to fine the football program itself at 0-1% of its total budget, which could generate an additional fine in excess of $200,000 (based on a total budget of 20 million per year).
- Scholarship Reduction: The COI chose to reduce initial football scholarships by one from the maximum allowed (25) for a two-year period and total football scholarships by one from the maximum allowed (85) for a three-year period. Under the penalty matrix for a standard Level II violation, the COI would have the ability to reduce up to three initial scholarships and 10 total scholarships per year (0-12.5%). As a result, it is unlikely the scholarship reduction would have been greater under the new system.
- Show-Cause Order/Head Coach Restriction: Under the current system, the COI issued an 18-month show cause order for former head coach Chip Kelly and a one-year show-cause order for former assistant director of operations Josh Gibson. Under the new system, the standard Level II show-cause order would range from one to two-years, which fits with the current decision. However, it should also be noted that while the COI chose not to address specific penalties for Kelly’s show-cause order, the new system would provide the COI the ability to restrict all or some of Kelly’s coaching duties if he remained at Oregon or had taken a position at another NCAA member institution. Further, under the new head coach monitoring standard, the COI could have suspended Kelly for up to 30% of Oregon’s 2013 football season.
- Recruiting Restrictions: Under the current system, the COI reduced the number of paid official football visits from 56 (or 41 if you take the average number of official visits the program used over the applicable period) to 37 over a three-year period and also reduced permissible football evaluation days from 42 to 36 in the fall and from 168 to 144 in the spring, over a three-year period. Under the new system, the COI would have been able to implement the same restrictions (if categorizing the case as a standard Level II violation) on official visits and fall evaluations. However, the COI would have had to determine there was an aggravating factor present to award a spring evaluation restriction of over 21 days.
The Buckner Law Firm will be releasing a series of materials on the new NCAA enforcement process this July. If you are interested in receiving these materials, please contact Justin Sievert at JSievert@michaelbucknerlaw.com or (954) 941-1844.