Michael L. Buckner Law Firm

April 18, 2012

Campus Green 
College Athletics Best Practices Alert

 

Greetings! 
  
Welcome to the April 18, 2012, issue of College Athletics Best Practices Alert, a complimentary publication of the Michael L. Buckner Law Firm.

Division I Column:

What is a "Failure to Monitor"?: A Review of the Committee on Infractions' Expectations, Part I

 

Author: Michael L. Buckner, Esquire (Shareholder)
  

  

NCAA Constitution 2.8.1 declares a member institution "shall comply with all applicable rules and regulations of the Association in the conduct of its intercollegiate athletics programs" and "shall monitor its programs to assure compliance and to identify and report to the Association instances in which compliance has not been achieved". The Michael L. Buckner Law Firm begins a multi-part series exploring an institution's duty to monitor compliance with NCAA legislation. The entries in this series will use decisions and commentary from the NCAA Division I Committee on Infractions during the 2010-12 period to illustrate the scope of an institution's duty to monitor. The first article in this series reviews decisions of the Committee on Infractions beginning with the January 20, 2010, Georgia Southern University case (Report No. 315) and ending with the June 10, 2010, University of Southern California case (Report No. 323). 

 

Summary of Failure to Monitor Decisions

 

Georgia Southern University (January 20, 2010) 


The Committee on Infractions, in the Georgia Southern University enforcement case, ruled major violations involving the men's basketball program occurred. The enforcement case included violations pertaining to unethical conduct by members of the men's basketball staff stemming from academic-fraud and the provision of false and misleading information. The committee also found that the university failed to monitor its men's basketball program. The Committee on Infractions determined the "academic-fraud in this case can be attributed, in large part, to the decision to assign the former assistant coach with oversight of academics for the men's basketball team, without the benefit of either instruction or supervision". Further, the institution acknowledged "that certain aspects of the 'structure' under which the academic-fraud occurred was inadequate". According to the committee's rationale, a failure to monitor exists when: 

  

  • An institution assigns a coach with oversight responsibility of academics for a sports team that places "the coach in an inherent conflict of interest position". For example, afailure to monitor exists when a coach's academic assignment goes "beyond normal boundaries for a coach", includes "unfettered access" to "student-athletes' online academic accounts and contact with professors" and a lack of "guidance or supervision" in the coach's academics capacity.
  • The "resources in the institution's compliance program" are "limited" that results in "neither the time nor the personnel available to monitor" key personnel, operations and activities.

 

University of Nevada - Reno (March 18, 2010) 


In the University of Nevada-Reno enforcement case, the Committee on Infractions found the existence of major violations in the men's and women's golf programs. The enforcement case involved multiple extra-benefit violations, as well as unethical conduct and a failure to promote rules-compliance by the former head men's golf coach. According to the committee's rationale, a failure to monitor involving a head coach exists under NCAA Bylaw 11.1.2.1 when the head coach is "in a position to prevent the violation from occurring" by:

  

  • "Seeking guidance from the institution's athletics compliance department regarding conformance with NCAA legislation".
  • "Monitoring the activities" of coaches, administrative staff, third-parties and other parties with direct involvement with the head coach's sports team.

 

Indiana University - Purdue University Indianapolis (March 30, 2010) 


The Committee on Infractions determined major violations involving all 14 sports occurred at Indiana University-Purdue University Indianapolis (IUPUI). The enforcement case involved the erroneous eligibility certification for 97 student-athletes over the course of four academic years, a lack of institutional control and a failure to monitor by IUPUI. According to the committee's rationale, a failure to monitor exists when:

 

  • The institution fails to ensure academic support services staff are "fully versed in institutional policies governing degree declarations and degree unit course credit", including how such policies interact "with NCAA legislation governing degree declarations and progress-toward-degree requirements".
  • The academic support services staff does "not receive regular updates regarding curriculum changes".
  • The academic support services staff fails "to consult with academic units on campus".
  • The institution's established eligibility committee meets infrequently and does not receive "any NCAA rules training" that prevents its members from providing "oversight of the eligibility certification process".
  • The transition process for a new employee assuming a position external to the athletics department (e.g., registrar, financial-aid director) does not include a thorough explanation of the position's athletically-related duties and responsibilities (e.g., compliance duties). 

 

University of Southern California (June 10, 2010)


The Committee on Infractions' review of the University of Southern California enforcement case resulted in a finding of violations in its football, men's basketball and women's tennis programs. The violations, which occurred during an approximate four-year period, primarily involving agent and amateurism issues for former football student-athlete Reggie Bush and former men's basketball student-athlete OJ Mayo. According to the committee's rationale, a failure to monitor exists when:

 

  • An institution conducts "relatively little effective monitoring of, among others, football locker rooms and sidelines" that creates the existence of "a general postgame locker room environment that [makes] compliance efforts difficult".
  • An institution fails to dedicate "adequate resources" to compliance, including "insufficient numbers of compliance staff to do the thorough and complete job required" and provided inadequate supervision to screen out the "unscrupulous" from contact with student-athletes.
  • An institution does not possess "well-conceived processes in place to assist in uncovering potential violations" to address "the clandestine nature of intentional rules-violations". For example, an automobile registration program should include "adequate processes" that "require that student-athletes have an obligation to update automobile records on file with the athletics department contemporaneous with changes in their automobile possession, use, and ownership" and "require that institutions obtain automobile registration records, and, when appropriate, records documenting purchase and car payments, and not simply rely on uncorroborated information provided by student-athletes".
  • An institution fails "to take a 'proactive' stance or investigate concerns and questions that arose regarding the [employment] relationship" between a sports marketer and student-athletes. This type of relationship creates a "heightened responsibility", which mandates an institution collect a "written description of the duties" of student-athletes, conduct "spot checks" to ensure student-athletes are showing up at work and performing appropriate duties, conduct a "limited inquiry" when reports (including "sensationalistic" media claims) surface of possible rules-violations and perform "any other monitoring" of employment relationships. 

 

Recommendations 


The Michael L. Buckner Law Firm recommends NCAA member institutions: (a) analyze the decisions of the Committee on Infractions in major enforcement cases; (b) revise compliance-related processes and procedures to ensure monitoring activities satisfy the committee's expectations articulated in major enforcement cases (some of which are summarized in this article); and (c) incorporate an evaluation of the effectiveness of monitoring activities in internal and external audits or assessments of athletics compliance programs.

  

 

Contact Michael L. Buckner (954-941-1844; [email protected]) for recommendations on enhancing your institution's compliance program.

 

Division III Column:

Overview of NCAA Division III Spring Football Legislation


Author: Justin P. Sievert (Of-Counsel) 

 

In 2005, NCAA Division III adopted Bylaw 17.9.6.1, which essentially created spring football at the Division III level. Division III Bylaw 17.9.6.1, which is listed as an exception to the Division III legislation regarding out-of-season athletically-related activities in the sport of football, however, is very different from its Division I and II counterparts. In light of these differences, the Michael L. Buckner Law Firm has provided an overview of Division III Bylaw 17.9.6.1.

 

Division III Bylaw 17.9.6.1 states "an institution is permitted to conduct conditioning and strength training sessions and limited skill instruction during a consecutive five-week period outside of the playing season." The specific components within Division III Bylaw 17.9.6.1 include:

 

A. Maximum of 16 days within the five-week period.

 

B. Maximum of four athletically-related activities in any one week.

 

C. An athletically-related activity within the scope of Division III Bylaw 17.9.6.1 includes:
1. Field, floor or on-court activity;
2. Setting up offensive or defensive alignment;
3. Chalk talk;
4. Lecture on or discussion of strategy related to the sport;
5. Activities using equipment related to the sport;
6. Discussion or review of game films, motion pictures or videotapes related to the sport; or
7. Any other athletically-related activity.

 

D. Skill instruction must be limited to passing, catching and kicking-related drills. Such instruction may include offensive or defensive alignments, but may not involve physical contact.

 

E. Equipment may include footballs, but the use of helmets, pads, blocking sleds or any other form of sport-related equipment is prohibited.

 

F. No class time is permitted to be missed for these sessions.

 

G. This period must be concluded by the first date of final examinations for the regular academic year.

 

Additional points of emphasis regarding Division III Bylaw 17.9.6.1 include:

 

A. Team-building activities are permitted during this period but must be counted against the maximum 16 days [Official Interpretation (Division III), Item Ref. 5 (May 10, 2010)].

 

B. Institutions may provide expenses for participation in team-building activities during this period

[Official Interpretation (Division III), Item Ref. 5 (May 10, 2010)].

 

C. Physical contact of any kind during this period is prohibited as the legislative intent of this bylaw is the spring period is designated for conditioning, agility and skill instruction only [Educational Column (Division III), Item Ref. 1 (March 23, 2005)].
 

 

Contact Justin P. Sievert (954-941-1844; [email protected]) for more recommendations on enhancing your institution's athletics compliance program.

 

Divisions I, II and III Column:

Athletics Investigations Tips and Best Practices

  

Author: Michael L. Buckner (Shareholder) 

 

 

The Michael L. Buckner Law Firm offers the following tips, best practices and strategies for conducting internal investigations of alleged NCAA rules-violations and other misconduct:

 

  •  An internal investigation should be guided by an "investigation plan", which is prepared at the start of a case. An investigation plan includes the scope of the inquiry, possible interview subjects, documents that need to be collected and analyzed, as well as other issues crucial to the project.
  • An institution's investigator should collect all e-mails and other electronic communications (e.g., text messages) that may be relevant to the inquiry. In fact, valuable detail and helpful information are commonly found in e-mails and other electronic communications. Thus, an institution should ensure e-mails and other electronic communications are thoroughly secured, searched and analyzed.
  • The interview phase of an internal investigation should not start until all relevant documents have been collected and analyzed by the investigator.

 

Sources: Michael L. Buckner, Athletics Investigation Handbook; Victor Genecin, "Best Practices: A Short List of Suggested Best Practices for Internal Investigations", http://www.squiresanders.com.

 

Contact Michael L. Buckner (954-941-1844; [email protected]) for more recommendations pertaining to conducting internal investigations of alleged NCAA rules-violations. 

Divisions I, II and III Notice:

MLBLF Complimentary Workshop on Investigation Techniques

   

 

The Michael L. Buckner Law Firm is excited to announce it will host a special complimentary session for clients and readers of this newsletter at the 2012 NCAA Regional Rules Seminars in Anaheim, California, and Atlanta, Georgia. The sessions, "Internal Athletics Investigations and Hot Topics", will provide:

 

  • In-depth strategies, techniques and best practices on how: to plan an internal investigation of alleged NCAA rules-violations; and to conduct investigation interviews.
  • Best practices and advice from a panel of athletics administrators and firm professionals on how to address enforcement "hot topics" during an internal investigation.

 

The date and time for the sessions are below:

 

  • Anaheim: May 14, 2012, 3:30-4:30 pm [Hilton Anaheim; Room: California A]
  • Atlanta: June 4, 2012, 3:30-4:30 pm [Hyatt Regency Atlanta; Room: Chicago A-D]

 

Note: Participants must be registered with the NCAA Regional Rules Seminar to attend a session. Click here to register for the NCAA Regional Rules Seminar.
 

Disclaimer: The sessions are not endorsed or sponsored by the NCAA.

 

Contact Michael L. Buckner (954-941-1844;

[email protected]) for more information on the sessions.

 

Divisions I, II and III Notice:

Blue Ribbon Tips Blog Series

  

Author: Michael L. Buckner (Shareholder) 

 

 

The Michael L. Buckner Law Firm offers a complimentary online 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;

[email protected]) if you would like to be featured in a Blue Ribbon Tips blog post.

 

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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 www.michaelbucknerlaw.com.

Issue: 31

Basketball
In This Issue
What is a "Failure to Monitor"?: Part I
Division III Spring Football Legislation Overview
Athletics Investigations Tips and Best Practices
Investigation Techniques Workshop (May and June 2012)
Blue Ribbon Tips Blog Series

 

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Resources for You 
 

Prior issues of the Best Practices Alert newsletter, as well as other complimentary articles, checklists, toolkits and resources, can be located on our website.

 

MLBLF Media Center    


Insight and commentary on college and high-school sports issues can be found on the Media Center page of the law firm website . The online resource contains links to law firm press releases, media articles and Michael L. Buckner's published books, as well as Mr. Buckner's radio and TV interviews.

Michael L. Buckner Law Firm
Telephone: 954-941-1844
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This electronic newsletter, including the information contained therein, is not endorsed or published by the National Collegiate Athletic Association, National Association of College and University Attorneys or the organizations' representatives, but is a legal advertisement from the Michael L. Buckner Law Firm (which is not affiliated with the NCAA or NACUA). Any questions concerning this communication should be directed to Michael L. Buckner (954-941-1844; [email protected]).

 

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