POSTED: Wednesday March 21st 2012
FOR IMMEDIATE RELEASE
College Athletics Best Practices Alert: UNC and Georgia Tech Infractions Decisions
Division I Column:
UNC Infractions Decision—"Heightened Awareness" Triggers More Aggressive Monitoring Activities
Author: Michael L. Buckner, Esquire (Shareholder)
The NCAA Division I Committee on Infractions, through the release of the March 12, 2012, public infractions report, determined the University of North Carolina-Chapel Hill (UNC) was "responsible for multiple violations, including academic fraud, impermissible agent benefits, ineligible participation and a failure to monitor its football program". The committee held that "over the course of three seasons, six football student-athletes competed while ineligible as a result of these violations, and multiple student-athletes received impermissible benefits totaling more than $31,000". Most importantly, the committee elaborated on its monitoring expectations for NCAA member institutions with a "heightened awareness" of possible rules-violation.
Penalties
The Committee on Infractions imposed the following penalties (including sanctions self-imposed by UNC): public reprimand and censure; three years of probation; vacation of all records of student-athletes who competed while ineligible, as well as the former head coach's record; reduction of grants-in-aid by a total of 15 for a three-year period; one-year postseason ban in football; show-cause order placed on the former assistant coach for a period of three years; self-imposed financial penalty of $50,000; and an annual compliance reporting requirement.
"Heightened Awareness" Standard
The Committee on Infractions determined, during 2009 and 2010, UNC "failed to monitor the conduct and administration of the football program" when it failed to: (a) monitor the activities of a former student-athlete; and (b) investigate information it obtained suggesting that a student-athlete may have been in violation of NCAA legislation. In reaching its failure to monitor conclusion, the committee did not impose an absolute duty upon member institutions to regularly monitor certain sources of information (e.g., social media sites), but declared "the duty to do so may arise as part of an institution's heightened awareness when it has or should have a reasonable suspicion of rules violations". As a result, NCAA member institutions should increase monitoring if the receipt of information or an event trips the "heightened awareness" trigger.
For example, the Committee on Infractions:
1. Noted institutions do not have an absolute duty to regularly monitor social media sites. However, an institution acquires the duty to do so if it obtains a heightened awareness through a "reasonable suspicion of rules violations". [Note: The committee explained "if the membership desires that the duty to monitor social networking sites extend further than we state here, the matter is best dealt with through NCAA legislation".]
2. Stated institutions are required to regard a representative of the institution's athletics interests (e.g., former student-athlete) with access to institutional training facilities with a heightened awareness and preclude the person from having contact with student-athletes when media organizations report the person was involved in activities that triggered NCAA agent legislation.
3. Determined although an "institution does not have an inherent duty to monitor personal travel by student-athletes, once it" becomes "aware of the circumstances of" a student-athlete's travel it possesses "a duty to investigate how the trips were paid for". For example, the committee believed UNC could have conducted a "simple Internet search" to detect that two National Football League (NFL) players (who were to train with a UNC student-athlete on one trip) were clients of a sports agent. Thereafter, the institution could have "questioned [the student-athlete] regarding the details of the trips, including how he was paying for the plane tickets and where he would be staying".
4. Concluded "there exists no inherent duty of institutions to monitor the purchase of clothes by student-athletes. However, if an institution obtains information that a student-athlete's clothes are being purchased by a booster, and if that student-athlete is seen wearing new and expensive clothes, a duty to investigate the student-athlete's clothing purchases would arise."
Recommendations
The Michael L. Buckner Law Firm recommends NCAA member institutions (a) analyze the decision of the Committee on Infractions in the UNC enforcement case; and (b) revise compliance-related processes and procedures to ensure monitoring activities satisfy the committee's expectations under the "heightened awareness" standard.
Sources: University of North Carolina, Chapel Hill, NCAA Division I Committee on Infractions, Public Infractions Report No. 360 (March 12, 2012); NCAA, "UNC receives postseason ban, scholarship reductions" (March 12, 2012), at http://ncaa.org.
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) for recommendations on enhancing your institution's compliance program.
Division I Column:
Georgia Tech Appeals Case: Explanation of When an Institution's Actions Constitute a Failure to Cooperate with the Enforcement Staff
Author: Michael L. Buckner, Esquire (Shareholder)
The NCAA Division I Infractions Appeals Committee on March 9, 2012, upheld the findings and vacation of records penalty imposed by the Committee on Infractions in the Georgia Institute of Technology (Georgia Tech) enforcement case. In its July 14, 2011, decision, the Committee on Infractions cited Georgia Tech for preferential treatment violations, a lack of cooperation during the investigation and a failure to meet the conditions and obligations of membership. Georgia Tech appealed the failure to cooperate and conditions of membership violations, as well as the vacation of records penalty.
Appellate Argument Summary
Georgia Tech contended the Committee on Infractions erred in its determination that it failed to cooperate with the NCAA enforcement staff in violation of Bylaw 32.1.4 (Cooperative Principle), which states:
The cooperative principle imposes an affirmative obligation on each institution to assist the enforcement staff in developing full information to determine whether a possible violation of NCAA legislation has occurred and the details thereof. An important element of the cooperative principle requires that all individuals who are subject to NCAA rules protect the integrity of an investigation. A failure to do so may be a violation of the principles of ethical conduct. The enforcement staff will usually share information with the institution during an investigation; however, it is understood that the staff, to protect the integrity of the investigation, may not in all instances be able to share information with the institution.
The Committee on Infractions determined Georgia Tech violated Bylaw 32.1.4 when institutional staff members provided information to a football student-athlete regarding the scope of his upcoming interview information despite specific instructions by the NCAA enforcement staff. The committee concluded this action impeded the investigation and hindered efforts to ascertain the truth in the case.
Explanation of a Failure to Cooperate
The Infractions Appeals Committee, in addressing the institution's arguments that the violation should be overlooked for a number of reasons, noted:
1. Although the working relationship between the director of athletics and a head coach would be harmed if the director of athletics failed to inform the head coach of an NCAA enforcement investigation and the head coach later found out that the director of athletics had knowledge of this matter and failed to inform the coach, a director of athletics' action of informing the head coach would be in direct violation of any NCAA enforcement staff-imposed restriction.
2. If an administrator feels it is important to inform a head coach or other parties of an investigation, then the matter should be discussed with the NCAA enforcement staff and the institution's president before willingly violating an instruction of the enforcement staff.
3. Decisions and actions in a prior NCAA enforcement investigation that are unrelated to a current case are not controlling because "each case stands on its own merits and has its own limitations and instructions" and an administrator possesses "every opportunity to consult with the NCAA staff and check to see if this situation was similar or different than the prior one".
4. A failure to follow the instructions of the NCAA enforcement staff cannot "be dismissed since it really did not affect the outcome of the investigation" (i.e., the "no harm no foul" argument) because the essence of a requirement to cooperate is not that the action has any effect on the outcome of a case, but that "there is not room to allow one to fail to cooperate with the instruction of the investigation and then be allowed to be excused for that behavior if after the fact, one can allege that the failure to cooperate had no bearing on the matter. Cooperation is not conditional."
Recommendations
The Michael L. Buckner Law Firm recommends NCAA member institutions: (a) analyze the decision of the Infractions Appeals Committee in the Georgia Tech enforcement case; and (b) revise internal investigation procedures to reflect the appeals committee's holding (specifically, ensure all senior institutional decision-makers are briefed on the specific instructions or restrictions imposed by the enforcement staff during a case).
Sources: Georgia Institute of Technology, NCAA Division I Infractions Appeals Committee, Public Infractions Report No. 345 (March 9, 2012); NCAA, "Georgia Tech appeal upheld" (March 9, 2012), at http://ncaa.org.
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) for recommendations on enhancing your institution's compliance program.
Divisions I, II and III Column:
Sports Wagering ComplianceTips during the NCAA Men's Basketball Tournament
Author: Justin P. Sievert (Of-Counsel)
It all commenced with Selection Sunday on March 11. March Madness, the moniker used to describe the NCAA Men's Basketball Tournament, has become one of the most popular sporting events in America, to the point where it commanded a 14-year, 10.8 billion dollar television deal with CBS and Turner Sports. March Madness has also become one of the most popular events in sports gambling, with fans from across the country filling out their "brackets" and competing in "pools". In fact, it was projected that illegal gambling on the 2011 NCAA Men's Basketball Tournament would reach upwards of 2.5 billion dollars. As a result, it is important for institutions to have sound rules-education and monitoring efforts in place with regards to sports wagering activities.
NCAA Bylaw 10.3 states athletics department staff members, nonathletics department staff members with athletics responsibilities within or over the athletics department, staff members of a conference office and student-athletes "shall not knowingly participate in sports wagering activities or provide information to individuals involved in or associated with any types of sports wagering activities concerning intercollegiate, amateur or professional athletics competitions".
Prospective or enrolled student-athletes who are found in violation of Bylaw 10.3 are ineligible for further intercollegiate athletics competition, subject to an appeal to the Committee on Student-Athlete Reinstatement. If a student-athlete has engaged in activities designed to influence the outcome of an intercollegiate contest or activities that will affect the gambling line or gambles on the institution he or she attends, that student-athlete shall lose all remaining eligibility in all sports. If a student-athlete participates in another sports wagering activity, the student will be ineligible for a minimum period of one year. If the student-athlete later engages in another sports wagering activity, the student-athlete will be permanently ineligible.
An institutional staff member found in violation of Bylaw 10.3 will be subject to disciplinary or corrective action pursuant to NCAA Bylaw 19.5.2.2.
In light of NCAA Bylaw 10.3 and recent NCAA major and secondary cases involving sports wagering, the Michael L. Buckner Law Firm recommends institutions consider the following when addressing sports wagering:
1. Enhance rules-education efforts on sports wagering during critical times (i.e., March Madness, the Super Bowl, the beginning of Fantasy Sports seasons);
2. Enhance sports wagering monitoring activities to include social media websites (i.e., Facebook, Twitter, YouTube);
3. Increase rules-education efforts through the use of additional sports wagering educational resources (i.e., NCAA Don't Bet on It Website, NCAA Regional Rules Seminar Sports Wagering presentation);
4. Implement or update sports wagering policies and procedures in the institution's athletics compliance manual;
5. Implement or update sports wagering legislation and educational resources in your institution's student-athlete handbook;
6. Include sports wagering rules-education and monitoring in your next scheduled internal athletics compliance assessment; and
7. Include sports wagering rules-education and monitoring in your next scheduled external athletics compliance audit.
Contact Justin P. Sievert ( 954-941-1844 ; jsievert@michaelbucknerlaw.com) for more compliance-related recommendations.
Divisions I, II and III Notice:
Blue Ribbon Tips Blog Series
The Michael L. Buckner Law Firm is excited to offer a new resource, Blue Ribbon Tips. Blue Ribbon Tips is an interview series featured on the law firm's blog. Each blog post in the series contains athletically-related best practices, strategies and tips for administrators from NCAA member institutions and other higher-education professionals. The Michael L. Buckner Law Firm blog is located at: http://michaelbucknerlaw.wordpress.com.
Contact Michael L. Buckner ( 954-941-1844 ; mbuckner@michaelbucknerlaw.com) if you would like to be featured in a Blue Ribbon Tips blog post.
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
Telephone: 954-941-1844
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E-mail: mbuckner@michaelbucknerlaw.com
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Keywords · Michael Buckner Law Firm · NCAA · Infractions
Name: Michael L. Buckner
Organization: Michael L. Buckner Law Firm
Email:
Phone: (954) 941-1844 (Office)
URL: http://www.michaelbucknerlaw.com/
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