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Mock case shines light on NCAA's process
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Mock case shines light on NCAA's process
Mock case shines light on NCAA's process
Sunday, May 15, 2011 03:11 AM

By Bill Rabinowitz
THE COLUMBUS DISPATCH

The NCAA's enforcement department knows it has, among other issues, a public-relations problem.

Long criticized for alleged inconsistent dispensation of punishment, overly long investigations and a secretive, inscrutable culture, the NCAA attempted to begin demystifying the process last week. The organization that governs college sports invited 30 sports journalists to the "NCAA Enforcement Experience" on Tuesday at its Indianapolis headquarters.

Most of the journalists were from the national media. Of the newspaper reporters, most were from places where schools have been the target of recent NCAA investigations, such as Birmingham, Ala. (Alabama and Auburn); Eugene, Ore. (Oregon); Charlotte, N.C. (North Carolina), and Columbus.

At breakfast, I asked NCAA president Mark Emmert if he would comment on the status of the Ohio State investigation. Not surprisingly, he said he could not.

Modeled after the widely praised mock basketball tournament selection seminar it has had for several years, the seminar placed journalists into the role of NCAA investigators.

The 30 of us were assigned to conduct a mock investigation of "State University" after we received a tip charging academic fraud. An ex-girlfriend of a player alleged that a tutor and/or head coach gave players answers to tests in a sociology class. The woman insisted on anonymity but said she would provide a copy of one of the answer keys to the investigator. She did not, however, meaning that any case against the school and any individuals would be circumstantial.

It was our job to determine whether a plausible allegation existed and then to figure out the best way to proceed with the investigation. In a courtroom-like setting, the NCAA's Committee on Infractions then weighed the evidence presented by investigators against the defense by the coach and school.

The infractions committee, which consisted of two actual former committee members, found the tutor, coach and school guilty of violations. But that's not what mattered. The entire process, including a question-and-answer session with Emmert and other NCAA officials, revealed the challenges the NCAA faces and the strategies it uses in its investigations.

Here's what we learned:

1. The NCAA is limited by its lack of subpoena power.

Players and coaches at schools that belong to the NCAA are required to cooperate with investigators. But those no longer at a school aren't, and the NCAA has no leverage to force them to.

In our fictional case, the tutor had graduated. He answered questions by NCAA investigators, presumably to defend the coach. But he did not bother to appear at the committee hearing that determined his fate.

The NCAA also cannot use anonymous information. The ex-girlfriend's original allegation was never presented as evidence. It is, however, permissible to use such a charge as the spark for an investigation.

2. The NCAA investigations department and the NCAA Committee on Infractions are separate entities.

The infractions committee is made up of volunteers from NCAA schools. They are not technically part of the NCAA other than with their role as arbiters of violations.

"I don't know any way to explain it other than to say we are totally separate," said Andrea Myers, athletic director emeritus at Indiana State and a former committee member. "There's no discussion between us and them other than in the hearing."

Emmert said it's understandable that the average observer believes that "it's all just one big bundle of compliance," but that is not the reality.

3. The NCAA enforcement staff is smaller than you'd think.

The current staff consists of about 50 investigators. Emmert said he intends to hire more staff, in part to free investigators to spend more time on the road visiting colleges.

With such a small staff, the NCAA may use information from outside sources to provide the onus to start an investigation - media reports, message boards, Facebook, Twitter, etc.

4. The burden of proof is that of a civil case, not a criminal one.

An accused individual or university must be found guilty based on "clear and convincing evidence," but the certainty of guilt does not have to rise to the level of "beyond a reasonable doubt."

5. There's a reason a typical investigation takes almost a year and the entire process considerably longer.

One part of the seminar was devoted to figuring out the sequence of interviews we wanted to pursue and the timing of document requests. The NCAA knows that targets will try to protect themselves by circling the wagons. So a common strategy of investigators is to work from the outside in and slowly build a case. That can take time, particularly when witnesses are reluctant to cooperate.

6. The infractions committee understands that perfect compliance with NCAA rules is difficult, but a good-faith effort is essential in escaping major penalties.

"Anybody that's done compliance on a campus can tell you it's not an easy job," said Josephine Potuto, a former infractions committee chair who served in that role Tuesday. "No matter how many fingers you have in all the holes in the dike, something can ooze out from somewhere else. You can't be everywhere. You can't do everything.

"The committee understands that perfectly. If the institution is doing a reasonably good job and finds out (about a violation) and turns it in, sure, that's positive."

And how persuasive to the infractions committee is a school's contention that "a rogue coach" can commit a violation without anyone's knowledge?

"You're limited by the record and the information you have," Potuto said. "You're entitled to draw reasonable inferences from the information. But you can't go out on a fishing expedition because you think, 'Jeez, it's only one person and how could this be?'"

7. Emmert wants to create more classifications of violation.

The NCAA has two categories - major and secondary. Emmert would like to add as many as three more to more accurately describe the severity of violations.

"Then we could maybe manage the cases a little more expeditiously," he said. "I think it makes more sense than just having misdemeanor and capital offense."

But Emmert added that he believes punishments in general must have more teeth.

"We need to make sure that our penalty structure and our enforcement process impose a thoughtful level of concern - and even fear - that the cost of violating rules exceeds the benefit," he said. "When we have people doing a cost-benefit analysis in their own mind (thinking) 'If I get caught, the penalty won't be too great' - that is not where you want to be."

Based on all this, what's the best guess about what's likely to happen to Ohio State when the NCAA hands out its ruling regarding Jim Tressel's violation?

Here's what's in Ohio State's favor: It reported the violation when it learned of it, as far as the public knows. Self-reporting can mitigate punishment.

It also helps to understand how independent the infractions committee is from the investigations team. In the mock hearing, the committee grilled the NCAA as thoroughly as it did the accused coach and school. Just because the NCAA has alleged violations doesn't mean the committee will agree.

On the other hand, we handed out harsh penalties - scholarship losses, bowl ban, show-cause violation, vacated seasons - on a case built solely on circumstantial evidence. Potuto and Myers meted out similar penalties in their separate judgment.

In contrast, the evidence is clear in Ohio State's case. It has admitted guilt. Also, the allegation of Tressel withholding information and using players he had reason to believe might be deemed ineligible is more serious than the academic fraud charge in our case. So Ohio State is likely to get more than a slap on the wrist. And if evidence is uncovered that the school knew about Tressel's misdeeds before it said it did, all bets are off.

brabinowitz@dispatch.com


http://www.dispatch.com/live/content/spo...ml?sid=101
 
05-15-2011 01:31 PM
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