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College Athletics Best Practices Alert
Greetings!
Welcome to the May 15, 2013, issue of College Athletics Best Practices Alert, a complimentary publication of the Michael L. Buckner Law Firm.
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Divisions I, II and III Column:
Investigations of Alleged Student-Athlete Abuse by Coaches, Part I: The First 48 Hours
Author: Michael L. Buckner, Esquire (Shareholder)
The findings and allegations of student-athlete abuse by coaches at Rutgers University serve as a reminder for colleges and universities on the value of conducting prompt, comprehensive and legally sufficient internal investigations. Institutions should use internal investigations to collect the relevant facts pertaining to an allegation in an objective manner. A well-run internal investigation permits an institution's decision makers to make a reliable and legally-defensible finding as to what occurred, as well as to develop sound policy and procedure recommendations to improve campus operations. However, institutions conducting an internal investigation should exercise care to avoid the common mistakes that can disrupt an inquiry and increase the organization's legal liability. The Michael L. Buckner Law Firm, which has been retained by universities to conduct internal investigations of alleged abuse and misconduct by employees, offers a three-part series that outlines select areas and issues to avoid when conducting an internal investigation. The first entry in this series will discuss the institution's initial response after receiving allegations of student-athlete abuse by coaches.
The First 48 Hours
How an institution responds initially to an allegation sets the tone for an internal investigation. An institution's swiftness in launching an inquiry increases the potential quality and quantity of the evidence that can be collected. Experts, as well as the Michael L. Buckner Law Firm's experience, note that each passing hour provides more time for the target of the investigation to develop a cover story, witnesses to forget crucial testimony and evidence more time to be misplaced or destroyed. Thus, an institution should apply a "48-hour" principle to internal investigations. In particular, an institution's investigation policy and procedure should require the initiation of an inquiry within the first 48 hours of receiving an allegation.
Recommendations
Most importantly, an institution should strive to complete the following tasks within the first 48 hours of receiving an allegation of student-athlete abuse by a coach:
- Appoint or retain a person to conduct an internal investigation of any reports or alleged incidents of violent, threatening, harassing or intimidating behavior.
- Review institutional policy and applicable law to determine if the employee suspected of engaging in violent, threatening, harassing or intimidating conduct should be placed immediately on administrative leave pending the results of the investigation.
- Determine whether the circumstances warrant the institution report the allegation to the appropriate law enforcement agency.
- Develop an investigation plan.
- Interview (if possible) the person making the allegation.
- Secure or collect all available evidence pertinent to the allegation, including: documents; electronic information and data; videos; and other relevant evidence.
- Interview (if your investigation plan and strategy warrant it) any key witnesses and the target of the investigation.
- Review the institution's investigation policy and procedure, which should:
- Be in writing.
- Be approved by the president or chancellor (after a review by the general-counsel and human resources offices).
- Identify the investigator (or describe how an investigator is selected or appointed).
- List the duties and responsibilities of pertinent institutional personnel during an investigation.
- Require a timely review of all allegations.
- Include a procedure to educate institutional personnel about the policy.
- Address how allegations of alleged major and secondary rules-violations are processed by the institution.
- Satisfy due and fair process requirements, state law and, if relevant, collective bargaining agreements.
- State how findings are reported to the president/chancellor and third-parties (e.g., law enforcement, government entities, NCAA, accrediting agencies).
Contact Michael L. Buckner (954-941-1844; mbuckner@michaelbucknerlaw.com)
for additional recommendations relating to conducting internal investigations. |
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Division I Column:
NCAA Division I Infractions Appeals Committee Overturns UCF Postseason Football Ban
Author: Justin P. Sievert (Senior Counsel)
On April 22, 2013, the NCAA Division I Infractions Appeals Committee ("IAC") released its decision regarding the University of Central Florida's ("UCF") appeal of the July 31, 2012, Committee on Infractions ("COI") decision in the institution's enforcement case. The IAC announced UCF's football postseason ban had been reversed. The case centered on the involvement of outside third parties with prospective and current student-athletes. The impermissible activity found by the COI resulted in findings of unethical conduct for the former director of athletics and a former assistant football coach and a failure to monitor by the head men's basketball coach. Further, the impermissible recruiting activity undertaken by the third parties, who were determined to be representatives of UCF's athletics interests, was known by athletics department staff members, and, in some cases encouraged. As a result, the COI implemented the following penalties: (1) a five-year probationary period; (2) a postseason ban for the men's basketball and football programs; (3) show-cause orders for numerous athletics department staff members; (4) scholarship reductions; (5) recruiting restrictions; (6) a vacation of records for the men's basketball program; and (7) a monetary fine.
On appeal, UCF argued the football postseason ban should be reversed because the COI did not adequately distinguish between what factored into the basis of the football postseason ban versus the basketball postseason sanction. The IAC found for UCF stating the COI's rationale for implementing the football postseason ban penalty was so intricately woven with factors only supportive of the basketball postseason ban that it was impossible to determine whether the additional factors formed a significant basis for the Committee on Infractions to impose the football postseason ban. The IAC further explained the record in this case
creates the appearance that the COI relied on material factors not present for a particular sport to assess the penalty and, as a result, the football postseason ban was excessive and constituted an abuse of discretion.
The key point NCAA member institutions should take from this case is a requirement that the COI must clearly articulate the specific factors that led to a specific penalty for each sport involved in a case. The timing of this decision is also significant given the launch of the new enforcement process in August 2013. This system will include: (a) the implementation of a new penalty matrix that is expected to provide more consistency in the enforcement process, including the penalties that are ultimately levied if institutions are found to have committed violations of NCAA legislation; and (2) a clear explanation of why specific penalties were assessed to allow member institutions greater clarity.
Contact Justin P. Sievert (954-941-1844; jsievert@michaelbucknerlaw.com) for additional recommendations relating to the appeals decision.
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Divisions I, II and III Column:
Athletic Department Operational Reviews Transformed: The Conference Affiliation Assessment
Author: Justin P. Sievert (Senior Counsel)
The recent wave of conference realignment has highlighted an NCAA member institution's conference affiliation as one of the most significant issues in college athletics today. The purpose of an athletics conference is to provide membership institutions with similar interests and competitive levels the ability to compete on a regular basis in a relatively equitable environment. Additionally, membership institutions seek a conference affiliation that provides the best opportunities for their institution and athletic department's financial well-being. As a result, membership institutions should conduct annual discussions (among all significant decision-makers and stakeholders) on the short- and long-term strategic and tactical needs of the athletics department. Colleges and universities must be ready to make immediate decisions on conference membership that adheres to a strategic plan as conference realignment continues.
In light of this issue, the Michael L. Buckner Law Firm has created a unique nine-component test (Conference Affiliation Test or "CAT") designed to assist NCAA member institutions with proactively analyzing their athletic department's conference affiliation. The end result will be providing your institution the qualitative and quantitative data necessary to make an informed decision on conference affiliation (including a thorough analysis of key issues and considerations and a final recommendation that will include an overall CAT score).
The following checklist includes a brief overview of the objective and subjective components our firm will utilize in assessing your institution's current conference affiliation against a potential move to another conference:
- Revenue
- Exposure
- Academic Prestige
- Athletics Prestige
- Competitive Balance
- Alumni Network
- Student-Athlete Well-Being
- Institutional Assessment
- Miscellaneous Factors.
Contact Justin P. Sievert (954-941-1844; jsievert@michaelbucknerlaw.com) for more information regarding the Conference Affiliation Test (CAT) and how this service could be utilized at your institution.
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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 investigation, compliance and administrative issues. The law firm website can be found at www.michaelbucknerlaw.com. |
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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.
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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.
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Michael L. Buckner Law Firm
Telephone: 954-941-1844
Facsimile: 954-941-1846
E-mail: mbuckner@michaelbucknerlaw.com
Website: www.michaelbucknerlaw.com
Blog: http://michaelbucknerlaw.wordpress.com
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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; mbuckner@michaelbucknerlaw.com).
This publication is offered only for general informational and educational purposes. It is not offered as, and does not constitute, legal advice or a legal opinion. This information is not intended to create, nor does the receipt of it constitute, a lawyer-client relationship. This publication contains hyperlinks to other resources on the Internet. These links are provided as citations and aids to help you identify and locate other Internet resources that may be of interest, and are not intended to state or imply that the Michael L. Buckner Law Firm sponsors, is affiliated or associated with, or is legally authorized to use any trade name, registered trademark, logo, legal or official seal, or copyrighted symbol that may be reflected in the links.
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