Florida Coastal Symposium: The NCAA Enforcement Process

On Thursday March 15th, there will be an in-depth panel discussion at my law school about the practical and theoretical aspects of the NCAA enforcement process. We have invited some of the key players to serve as panelists who are entrenched in the enforcement process: Jo Potuto, Chair of the NCAA Infractions Committee; Jerry Parkinson, one of the committee's two coordinators of appeals; and Rick Evrard, attorney at the firm of Bond, Schoeneck & King. Their bios can be accessed here. The panel will be moderated by my colleague, Professor Nancy Hogshead-Makar, who teaches our Amateur Sports Law course and has a very impressive bio in collegiate athletics as well.

Joe Drape wrote a timely piece in yesterday's edition of The New York Times about the increased hiring of specialized law firms by universities for representation not only with respect to a pending investigation by the NCAA as one might expect, but to actually perform an internal audit and recommend sanctions before the NCAA has even started investigating ("Facing N.C.A.A., the Best Defense Is a Legal Team"). The article features Evrard, who spent seven years as an NCAA investigator, and his law firm, which represents more than 60 colleges and universities on matters of eligibility, compliance and major infractions investigations. Drape makes some interesting observations:

It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.

....

The N.C.A.A.’s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.

....

Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.’s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.

According to Evrard: “Some institutions distrust the N.C.A.A. enforcement staff. There is a feeling that the N.C.A.A. is not attuned to the sensitivities of the institution. And some of it is that the N.C.A.A. staff are often young professionals just out of law school, and they are running a case from beginning to end, which, if they were litigators at some firms, they may not be allowed to do for 10 or 12 years.”

To me, Drape's last comment pretty much sums up the purpose for hiring outside law firms to perform internal audits and recommend self-imposed sanctions: The infractions committee "rarely rejects the recommended sentence." And let's face it, cooperation with the NCAA is key. The outside law firm appears to almost act as an intermediary as opposed to the adversarial role typically performed by lawyers. In a previous post, I discussed how universities could benefit from hiring a full time in-house attorney to work exclusively in the athletics department, and this is definitely an area by which in-house attorneys can play a valuable role as well.

UPDATE 3/16/07: Jason Schneider of the Florida Times-Union wrote a great article about the issue ("Firms offer help when schools face legal woes")

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