Q&A: OREGON STATE PRESIDENT ED RAY

As the working group reviewed the current enforcement structure and contemplated desired outcomes from a revised approach, what common themes emerged about what needed to change?

First, it was clear we needed to have stiffer and more predictable penalties, so that people who were doing the “risk-reward” calculation would think twice about whether it was in their interests to engage in bad behavior. Having penalty guidelines – and having the penalties that are in those guidelines be more severe than what we have now – was a good way of sending clear signals to people. Second, how do we provide a more open and expedited process? ... We felt one of the things we had to address was the “time to closure.” By expanding the Committee on Infractions to as many as 24 members and creating multiple panels of 5-7 members from that “pool” that can adjudicate cases more frequently, we expect to be able to cut the “time to closure” in half, at least for the less-complicated cases. Openness is fostered by having clear penalty guidelines for infractions so that everyone knows what the consequences for violations will be for them. ... The third area or theme that emerged – and this was evident at the August 2011 Presidential Retreat was that everyone has to be part of the solution. There is a shared responsibility for upholding the values of the NCAA and the integrity of intercollegiate athletics.

In your mind, what are the most important aspects of the new structure?

Having four levels of violations is helpful because it allows us to distinguish between severe and significant in the new structure as opposed to simply major and secondary violations in the previous model. In reviewing past cases, we found that people who committed pretty serious violations sometimes ended up characterized as guilty of a secondary violation, which they tried to minimize to others as not important. So being able to more finely differentiate bad behavior was important. Obviously, the penalty guidelines are important in the new structure – not only the guidelines, but the penalties themselves, which when applied to past cases are demonstrably more severe. I also think the idea of shared responsibility is important.

What is the difference between severe (Level I) and significant (Level II)?

Significant could be something like a systemic breakdown in a school’s eligibility certification allowing multiple student-athletes to compete while ineligible. Severe would be a booster being involved in providing gifts to entice a student-athlete to enroll at a particular school. Violations can be “significant” when they have more than a passing consequence to the benefit of those who cheat. That can escalate to “severe” if the violations are much broader and deeper in terms of who is implicated and the kind of behavior those people engaged in to get the result they did.

The new structure holds coaches more accountable for their actions and those of their staff. Why?

Yes, the new structure holds head coaches more accountable for what happens in their program. What we settled on was not the presumption that the coach knows everything, but that the coach is responsible for the program and should counsel assistants about what is appropriate and have processes in place to monitor whether the assistant coaches are doing what they are assigned to do in an appropriate way. And unless the head coach can provide that kind of mitigating evidence if something happens, then he or she is just as culpable as the assistant coach who does something.

The new structure focuses more on the Level I and II violations that most threaten the integrity of the collegiate model, correct?

That is precisely what the membership instructed us to do. They said stop focusing on the technical, petty stuff and focus instead on things that really go to the heart of undercutting the credibility, effectiveness and integrity of the NCAA and the affiliated institutions. The core penalties (scholarship reductions, postseason bans, recruiting restrictions, etc.) haven’t changed from the previous structure.

How does the new structure strengthen those penalties?

The guidelines for the penalties, whether they are financial, scholarship reductions or postseason bans, allow for much stronger punishment than the actual outcomes of past cases would suggest. We also asked the membership what penalties get people’s attention, and the list of what we call the “core penalties” reflects the membership view of most effective actions. The new structure should expedite the process more often than not. However, the NCAA’s ability to prove/prosecute guilt hasn’t changed.

What will make this new process more efficient?

We believe one component of the new structure that will help move things along is that a “failure to cooperate” can now in and of itself constitute an aggravated finding that leads to stiffer penalties than would have been handed down had there been full cooperation. While the NCAA still can’t subpoena or compel testimony, this component should serve as an added incentive for people to cooperate fully in the investigation process.

The Division I Board of Directors on Tuesday adopted a new enforcement structure that creates additional levels of infractions, hastens the investigation process and ratchets up penalties for the most egregious violations.

The Board’s action culminates a year-long effort from a 13-member group of presidents, athletics directors, commissioners and others assigned after participants at a presidential retreat in August 2011 called for a more stringent and efficient enforcement structure to uphold the integrity of the collegiate model of athletics.

“We have sought all along to remove the ‘risk-reward’ analysis that has tempted people – often because of the financial pressures to win at all costs – to break the rules in the hopes that either they won’t be caught or that the consequences won’t be very harsh if they do get caught,” NCAA President Mark Emmert said. “The new system the Board adopted [Tuesday] is the result of a lot of hard work and membership input devoted to protecting the collegiate model.”

At its core, the new enforcement structure:

• Introduces a four-tier violation hierarchy that ranges from severe breaches of conduct to incidental infractions. The structure, which replaces the current two-tier approach (major and secondary violations), is designed to focus most on conduct breaches that seriously undermine or threaten the integrity of the NCAA Constitution (Levels I and II in the accompanying list).

• Enhances head coach responsibility/accountability and potential consequences for head coaches who fail to direct their staffs and student-athletes to uphold NCAA bylaws. Penalties include imposed suspensions that can range from 10 percent of the season to an entire season.

• Increases the Division I Committee on Infractions from 10 to as many as 24 voting members from which smaller panels will be assembled to review cases more quickly and efficiently.

• Continues to offer harsh consequences (postseason bans, scholarship reductions, recruiting limits, head coach suspensions, show-cause orders and financial penalties) that align more predictably with the severity of the violations. The new penalty structure also places a premium on aggravating and mitigating circumstances in each case.

• Emphasizes a culture among head coaches, the compliance community, institutional leadership and conferences to assume a shared responsibility for upholding the values of intercollegiate athletics.

The new structure becomes effective Aug. 1, 2013, which means the following as far as processing cases is concerned:

• Conduct breaches that occurred before Oct. 30, 2012, and are processed before Aug. 1, 2013, will be subject to the current process and penalties.

• Conduct breaches that occurred before Oct. 30, 2012, but are processed after Aug. 1, 2013, would be subject to the new process but would incur the more lenient of the two penalty structures (current and revised).

• Conduct breaches that occurred during a span that includes both before and after Oct. 30, 2012, and are processed after Aug. 1, 2013, will be subject to new process and the revised penalties as long as most of the violations occurred after Oct. 30, 2012.

• Conduct breaches that occur after Oct. 30, 2012 and are processed after Aug. 1, 2013, will be subject to both the new process and the revised penalty structure.

Board of Directors chair Nathan Hatch, president at Wake Forest, praised the new enforcement process that aligns with a companion effort to streamline bylaws and focus rules-making more on the NCAA’s fundamental principles. The Rules Working Group, led by Clemson President James Barker, forwarded a number of recommendations to the Board that are expected to be acted upon in January.

“A more sensible rules book combined with a more efficient way to enforce those rules will serve to sustain the collegiate model and restore public trust in college sports and the NCAA,” Hatch said. “These outcomes are precisely what presidents sought after the 2011 retreat.”

Oregon State President Ed Ray, former chair of the NCAA Executive Committee who also chairs the Enforcement Working Group, said the new multi-level violation structure allows infractions to be more appropriately categorized. In turn, penalties may be prescribed that better reflect the severity of the infraction.

Ray also noted the more efficient process resulting from an increase in members to hear cases. By expanding the Committee on Infractions to as many as 24 members and creating multiple panels from that “pool” that can adjudicate cases more frequently, Ray said the time to process the less-complicated cases could be cut in half.

Under the new structure, for example, hearings for Level I cases will be scheduled about 10 times annually (compared with the five meetings the current Committee on Infractions schedules). Level II cases can be scheduled monthly if necessary.

“A primary complaint we heard from the membership was that processing major cases took too long, not only from the investigative stage but also once it was agreed that there was a major infraction – it took too long to get on the Committee on Infractions hearing docket,” Ray said.

Ray also acknowledged a membership concern regarding potential inconsistent outcomes among cases in the new structure given the makeup of panel members drawn from the pool approach. However, he said the process ensures that several members of each panel, including the chair, will have had some previous experience with the Committee on Infractions.

“There may be new people on each panel but they’ll have experienced colleagues to work with,” Ray said.

In addition, the entire Committee on Infractions is required to meet at least twice annually (at least once in person) to review cases across panels and check for consistency in terms of the way the guidelines are applied.

“And the penalty guidelines will help,” Ray added. “When you give people side rails and tell them to stay within them, presumably there will be a lot of commonality among the judgments that emerge.”

As for the penalties themselves, Ray said the working group felt that the current structure didn’t offer enough of a deterrent for individuals who believe the anticipated benefits and advantages resulting from premeditated rules violations outweigh the severity of punishment.

The core consequences in the new structure are familiar (postseason bans, scholarship reductions and financial sanctions, among others) but are customizable according to the severity of the violation. The membership has on multiple occasions acknowledged that postseason bans, scholarship reductions and coach suspensions offer the most effective deterrent to potential rule breakers – and they are also the most effective in addressing the advantages gained as a result.

Enhanced penalties for coaches also highlight the new structure. Since 2008, about a dozen cases have occurred in which a head coach was found to have violated Bylaw 11.1.2.1 (head coach responsibility) by either not promoting an atmosphere of compliance or for not monitoring his or her staff, or both.

Penalties in the previous structure relied on whether the head coach knew of the violations or whether there was a “presumption of knowledge.” But under the new structure, rather than focus on knowledge or the presumption of it, the bylaw will be amended to presume only responsibility. Accordingly, if a violation occurs, the head coach is presumed responsible, and if he or she can’t overcome that presumption, charges will be forthcoming.

“We expect head coaches to provide practices and training and written materials that instruct their assistant coaches how to act,” Ray said. “If they’ve done that it can become mitigating evidence that they shouldn’t be held accountable for what the assistant coach did. But head coaches have to have these things in place or the presumption will be that he or she didn’t care enough to set standards. In that case, if the assistant goes rogue, then it’s partly the head coach’s fault and they need to be held accountable.”

The entirety of the new structure is based on membership review and feedback over the past year. With approval of the new structure in hand, the NCAA enforcement staff will embark on an educational campaign over the next nine months to prepare the membership for the implementation of the new structure.
“The working group developed these recommendations only after comprehensive and ongoing membership discussion and input,” Ray said. “I’m pleased not only with the magnitude of the changes but also with the representativeness with which they were achieved.”