Divisions I, II and III Column:

Georgia Tech Infractions Report: "A Cautionary Tale" on Preparing University Witnesses for NCAA Enforcement Interviews and Withholding Possible Ineligible Student-Athletes  

The July 14, 2011, release of the public infractions report in the Georgia Institute of Technology (Georgia Tech) enforcement case provides institutions with lessons on:   

• Permissible witness preparation techniques during NCAA investigations.  
• Circumstances when withholding possible ineligible student-athletes from competition is in the best interest of a college or university. 

Summary of the Case

The NCAA Division I Committee on Infractions, through its July 14 infractions report, determined Georgia Tech committed rules-violations in the institution's football and men's basketball programs. Georgia Tech was cited for a lack of cooperation during the NCAA enforcement staff's investigation, a failure to meet the conditions and obligations of membership, preferential treatment violations, as well as infractions involving a non-scholastic basketball tournament conducted on the institution's campus. The committee imposed numerous penalties, including a $100,000 fine, recruiting restrictions, vacation of records and a four-year probation period.

Issue No. 1: Witness Preparation

The Committee on Infractions noted the Georgia Tech enforcement case "provides a cautionary tale of conduct that member institutions should avoid while under investigation for violations of NCAA rules". In particular, the committee determined Georgia Tech failed to cooperate and protect the integrity of the investigation when its staff members (including a former general counsel) provided information to a football student-athlete regarding the scope of the athlete's upcoming investigation interview. The committee contended Georgia Tech provided this information despite specific instructions from the NCAA enforcement staff. The institution's action, according to the committee, "impeded the investigation and hindered efforts to get to the truth in the case".

Issue No. 1 Recommendations:

1-1. Prepare a written internal investigation policy and procedure, which includes protocols on investigative activities and witness preparation. [See Recommendations Nos. 1-2 and 1-3.]  

1-2. Conduct a comprehensive internal investigation that fulfills NCAA legislation (including, but not limited to, Bylaws 19.01.3, 32.1.4, 32.3.11 and 32.8.4). Specifically, do not limit investigative activities (e.g., interview questions, document collection) only to information the investigator knows is favorable to the institution-NCAA legislation requires the institution to collect all information that supports and refutes an allegation.  

1-3. Prohibit in-depth witness preparation sessions. [Note: Interviews conducted during the NCAA enforcement process are not depositions.] Instead, NCAA legislation and due process principles permit member institutions to advise the witness:
a. The purpose of the interview-which can be fulfilled by quoting NCAA Bylaw 32.3.7.1 ("The purpose of this interview is to determine whether you have knowledge of, or have been involved directly or indirectly in, any violation of NCAA, conference or university legislation, rules or regulations".).
b. The institution has retained outside legal counsel or consultant (if true) to represent it in connection with its internal investigation, but the law firm or consultant does not represent the witness personally.
c. The interview is voluntary and the witness may request it to be terminated at any time. [Note: However, the witness should be advised of the consequences of not complying with NCAA Bylaw 10.1-(a).]
d. NCAA legislation provides the witness with the right to have legal counsel or other authorized representative present during the interview. [Note: The witness also should be informed whether the institution will cover the fees and related expenses for the witness' representative in connection with the investigation.]
e. NCAA legislation requires the witness to maintain the confidentiality of the information provided during the interview, including, but not limited to, prohibiting the discussion of the investigation with involved individuals or other persons (excluding consultations with legal counsel or authorized representatives).
f. NCAA Bylaw 10.1 includes, among other actions, as "unethical conduct" by a prospective or enrolled student-athlete or a current or former institutional staff member:  i) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual's institution; ii) and Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual's institution false or misleading information concerning an individual's involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.

g. Any statement the witness makes can be used in any NCAA, conference and institutional proceeding.

h. If it is found the witness was involved directly or indirectly in any violation of NCAA, conference or institutional regulations, any statement the witness makes during an interview can affect adversely the person's eligibility at, or employment or affiliation with, the institution.

Issue No. 2: Withholding Possible Ineligible Student-Athletes

2-1. Develop a written policy to address the committee's findings in the Georgia Tech infractions case (as well as the August 20, 2009, University of Memphis infractions report), including a protocol on withholding a student-athlete from competition when the athlete or the institution receives notice of an issue impacting the athlete's athletics eligibility. 

2-2. Develop a procedure to ensure the prompt communication among university departments (e.g., athletics, admissions, general counsel) of information that questions, impacts or affects the athletics eligibility of prospective and enrolled student-athletes.

Contact Michael L. Buckner (954-941-1844; mbuckner@michaelbucknerlaw.com) for additional compliance-related recommendations addressing similar rules-violations as those described in the Georgia Tech infractions report.  

Divisions I, II and III Webinars: "Strategies to Address Compliance Hot Topics for the 2011-12 School Year"

Division I Webinar (August 17, 2011).

Division II Webinar (September 21, 2011).

Division III Webinar (September 28, 2011).    

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