POSTED: Wednesday February 1st 2012
FOR IMMEDIATE RELEASE
Divisions I, II and III Column:
Two Compliance Lessons from the Penn State Sex-Abuse Case
Author: Michael L. Buckner, Esquire (Shareholder)
From reporters to pundits, most people have a strong opinion on the sex-abuse scandal involving former personnel at Pennsylvania State University (Penn State). According to media reports, former Penn State defensive coordinator Jerry Sandusky was accused on November 5, 2011, of sexually-abusing eight boys. State authorities also charged Penn State's then-director of athletics and then-vice-president for finance and business with perjury and failing to report what they knew about the allegations. Penn State's board of trustees retained former FBI director Louis J. Freeh's firm on November 21, 2011, to investigate how the institution handled the scandal. Further, the United States Department of Education (DOE) is investigating if Penn State officials violated a federal law (the Clery Act) that requires universities to disclose allegations of sexual assault on campus. Finally, the NCAA is examining whether the institution violated the association's rules.
The Michael L. Buckner Law Firm wanted to explore two university compliance-related lessons that can be drawn from the scandal.
First, NCAA member institutions should implement clear, consistent and written policies, procedures and protocols regarding the reporting and processing of alleged criminal violations or misconduct involving athletics employees, student-athletes and other parties with athletically-related duties and responsibilities. The policies, procedures and protocols should provide clear guidance to persons within the athletics program concerning what actions to take in the event of suspected criminal incidents or misconduct. For example, an effective program for reporting purported criminal violations could include:
1. A campus and athletics administration fully committed: to compliance with the law (and university policies); and to fostering a safe environment for employees, student-athletes, visitors, guests and others who raise questions or concerns about compliance.
2. Internal (e.g., campus police) and external (e.g., local law enforcement) reporting procedures for suspected criminal violations or misconduct.
3. Corrective and disciplinary actions for noncompliance with university policies.
Second, NCAA member institutions should ensure compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act). The federal law requires all post-secondary institutions participating in the Higher Education Act's Title IV student financial assistance programs to disclose campus crime statistics and security information. The DOE's Handbook for Campus Safety and Security Reporting notes under the Clery Act:
1. Every institution must:
a. Collect, classify and count crime reports and crime statistics.
b. Issue campus alerts, which provides the campus community with information necessary to make informed decisions about their health and safety.
c. Publish an annual security report containing safety- and security-related policy statements and crime statistics and distribute it to all current students and employees.
d. Submit crime statistics to the DOE.
2. Institutions maintaining a campus police or security department must keep a daily crime log of alleged criminal incidents that is open to public inspection.
3. Institutions with on-campus student housing facilities must:
a. Disclose missing student notification procedures that pertain to students residing in those facilities.
b. Disclose fire safety information related to those facilities.
For more information on Clery Act requirements, click here to proceed to the campus security page on the DOE website.
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) for recommendations on enhancing your institution's compliance program.
Division I Column:
ESPN Recruiting Poll Results Demonstrate Why Monitoring Compliance with Recruiting Rules is Important
Author: Michael L. Buckner, Esquire (Shareholder)
A few results from ESPN The Magazine's "Recruiting Confidential" poll of the nation's top men's basketball prospective student-athletes reinforce the importance of NCAA Division I institutions monitoring compliance with recruiting, ethical-conduct and amateurism legislation. The poll, which also was published January 9, 2012, on ESPN.com's high-school site (ESPNHS), involved ESPN speaking with "25 seniors in the ESPNU 100 under the condition of anonymity to get the real story" concerning "illegal benefits, coaches lying and why [prospective student-athletes] really commit to schools". The full results of the poll are located on the ESPNHS page, which can be found by clicking here.
According to the poll:
1. 20 percent of the prospects would "take money if offered" and if the prospects knew they "wouldn't get caught".
2. 28 percent reported being offered cash or other illegal benefits from institutions (good news is 72 percent answered "no").
3. 64 percent of the prospects reported schools used hostesses or girls during campus visits.
The Michael L. Buckner Law Firm recommends NCAA institutions consider the following compliance strategies to address recruiting issues involving high-profile prospective student-athletes:
1. Develop (for adoption by the institution's governing board) a high-profile student-athlete due-diligence policy. Click here to review a description of a due-diligence policy.
2. Create an objective (non-discriminatory) set of criteria to identify high-profile student-athletes (prospective and enrolled).
3. Create a daily Google search/alert for compliance-related news on identified high-profile student-athletes.
4. Enhance rules-education sessions for prospective student-athlete during official and unofficial visits.
5. Increase rules education for coaching staff members, booster organizations and other relevant parties pertaining to off-campus contacts, permissible recruiters, official and unofficial visits, occasional meals, telephone calls, reporting of violations, and ethical-conduct expectations.
6. Incorporate compliance software systems into the athletics compliance program (such technology is available from several commercial vendors and should greatly enhance the abilities of the compliance office and coaching staffs to organize, track and record telephone recruiting calls, contacts and evaluations).
7. Review policies and procedures concerning the use of student host organizations during recruiting activities to ensure the institution complies with NCAA legislation.
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) for additional recommendations to enhance compliance programs.
Divisions II and III Column:
Implementing a Rules-Interpretation Process at Your Institution
Author: Justin P. Sievert (Of-Counsel)
One of the many responsibilities of athletics compliance offices is to timely and efficiently respond to questions regarding NCAA, conference and institutional regulations. In order to manage the interpretation process, all questions should be directed to the athletics compliance office, which should ultimately be responsible for obtaining, making and documenting all rules-interpretations. In order to effectively implement a rules-interpretation system at your institution the Michael L. Buckner Law Firm recommends the following process:
1. Institutional employees should first seek guidance from their supervisors (i.e., staff members in the Marketing Office should first raise any questions concerning NCAA legislation with the Director of Marketing). If the supervisor is unable to respond to a staff member's question, then the issue should be presented to the athletics compliance office.
2. Notwithstanding Step 1, athletics department staff members also should have the opportunity to direct questions concerning NCAA legislation and requests for interpretations at any time directly to the athletics compliance office. Questions and requests for interpretations may be presented orally or by written request. [Note: The Michael L. Buckner Law firm recommends that all rules-interpretations requests and questions be submitted via a written request.] All questions and requests should list the pertinent facts at issue, as well as the appropriate bylaws or regulations. Any written request should be made using an interpretation request form that is developed by the athletics compliance office. These forms should be readily available to all necessary parties.
3. If the rules-interpretation question or request is made orally, the athletics compliance office staff member receiving the question or request should document it in writing using the interpretation request form and check with the questioning/requesting party that they have recorded the question or request accurately.
4. Any responses to rules-interpretations that may be applicable to other institutional parties should be forwarded to the appropriate parties. In many instances when one person has a question another person will have the same question as well.
5. If necessary, the athletics compliance office should consult with the NCAA Legislative Services Database (LSDBi), which is an on-line database containing information on all past NCAA legislative assistance columns, staff and official interpretations, case-precedent and other compliance-related information, or may also contact the conference compliance administrator or the NCAA academic and membership affairs staff for assistance.
6. If the interpretation is considered significant, the athletics compliance office should confirm the interpretation with the conference and/or the NCAA in writing.
7. The athletics compliance office should document all requests and responses to requests for interpretations (whether written or oral). These files should be made readily available to administrators and coaches.
Contact Justin P. Sievert ( 954-941-1844 ; jsievert@michaelbucknerlaw.com) for more recommendations on implementing a rules interpretation process at your institution.
Divisions I, II and III Column:
Investigation Interview Best Practices: How to Keep a Witness Talking
Author: Michael L. Buckner (Shareholder)
One of the best skills an investigator can possess is a knack to get an interview subject (also referred to as a "witness") to talk and to keep the interview going. In fact, author Ragnar Benson notes a basic guideline for an investigator is to "never fail to learn something about the case from every witness, as long as that witness will talk even briefly". All investigators, on at least one occasion, will face a roadblock in maintaining a talkative interview subject. In response, Benson recommends an investigator:
1. Possess an easy-going interview manner conducive for an interview subject to talk freely.
2. Become a master listener.
3. Obtain detailed answers to the "five Ws"-who, what, where, when and why. [Note: The Michael L. Buckner Law Firm also recommends asking "how".]
[Source: Ragnar Benson, Interviews, Investigations, and Interrogations: How to Conduct Them, How to Survive Them (2000), at 9.]
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) for more recommendations pertaining to conducting internal investigations of alleged NCAA rules-violations.
About the Firm
The Michael L. Buckner Law Firm is a boutique law firm that assists college and university presidents, general counsel, and athletic administrators with addressing NCAA enforcement investigations, infractions appeals and rules-compliance issues. The law firm website can be found at http://www.michaelbucknerlaw.com.
Michael L. Buckner Law Firm
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Name: Michael L. Buckner Law Firm
Organization: Michael L. Buckner Law Firm
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URL: http://www.michaelbucknerlaw.com