|
|
College Athletics Best Practices Alert
Greetings!
Welcome to the June 10, 2013, issue of College Athletics Best Practices Alert, a complimentary publication of the Michael L. Buckner Law Firm.
|
|
|
Divisions I, II and III Column:
Investigations of Alleged Student-Athlete Abuse by Coaches, Part II: Interview Strategies and Tactics
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 maker to make a reliable and legally-defensible finding as to what occurred, as well as to develop sound policy and procedural 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, continues its three-part series that outlines select areas and issues to avoid when conducting an internal investigation. The second entry in this series will discuss strategic and tactical best practices that institutions should be aware of when conducting interviews during an investigation of allegations of student-athlete abuse by coaches:
Recommendations
In preparing for and conducting interviews during an investigation of allegations of student-athlete abuse by coaches, an institution should consider the following strategies and tactics:
1. Collect as much relevant evidence (as possible) prior to conducting interviews. A comprehensive analysis of the available evidence will assist the investigator with: (a) understanding the scope and the facts of the allegation; (b) preparing interview questions; and (c) identifying documents to use during an interview.
2. Research the applicable law and institutional regulations. An understanding of the applicable law and regulations will enable the investigator to prepare interview questions.
3. Conduct interviews at a location that will facilitate accurate information. An investigator should conduct interviews (if feasible) in a location that he or she can control and that provide the interview subject with an environment conducive to sharing information.
4. Provide the interview subject his or her rights and obligations. An investigator should advise the interview subject prior to the interview of any applicable right and obligations afforded by law, regulation or collective bargaining agreement (e.g., right to an advocate).
5. If required by institutional policy, collective bargaining agreements or state law, advise the interview subject that they have a right to have legal counsel or an advocate present during the interview.
6. Conduct an interview of the complainant/accuser before conducting other interviews (if possible). The interview of the complainant/accuser will assist the investigator with: (a) understanding the scope and the facts of the allegation; (b) preparing questions for subsequent interviews; and (c) identifying core documents and possible interview subjects.
7. Conduct an exhaustive search of all relevant evidence from all parties. A comprehensive collection of all available and relevant information ensures the accuracy and objectivity of an investigation.
8. Conduct an interview of all witnesses identified by the complainant/accuser, the target of the investigator and other interview subjects. An investigator should ask all interview subjects to identify any persons with information concerning the allegations. Unless the identified witnesses are clearly irrelevant (and if so, note the reason in the investigation file), the investigator should interview all persons named in an interview.
9. Document the interviews. The institution's investigator should thoroughly document the interviews by digital/audio recording, court reporter or notes. The most accurate methods are a digital recorder or a court reporter. Naturally, an investigator should obtain the permission and consent of the interview subject prior to recording the interview. Further, regardless of the method, the investigator should document the date, time, location and method (e.g., in-person, telephone-conference, video-conference) of all interviews conducted during the investigation.
10. Conduct an interview of all persons to whom the complainant/accuser and the target of the investigation made contemporaneous statements. During interviews with the complainant/accuser and target, ask if he or she reported or discussed the alleged conduct to colleagues or other parties. Unless the identified witnesses are clearly irrelevant (and if so, note the reason in the investigation file), the investigator should interview all persons named in an interview who participated in contemporaneous statements. [Note: Legally, the information obtained from the witnesses may be a possible exception to the hearsay rule.]
11. Tie-up loose ends in the investigation. An investigator should re-interview witnesses, re-examine documents and conduct supplemental research to address new issues that arise during the investigation.
12. Refrain from promising complete confidentiality. Although the institution can and should inform the complainant/accuser, target of the investigation and other interview subjects that the matter will be handled discreetly and with as much confidentiality as possible, the investigator should advise all interview subjects that certain facts may be disclosed to institutional decision-makers or could be used in legal or administrative proceedings.
13. Retain expert consultation when needed. An investigator should seek the advice of subject-matter experts when issues arise during an investigation.
14. Research the websites of the relevant government, regulatory and accreditation agencies. The agencies may provide subject-matter advisories or resources suggesting best practices in conducting interviews (e.g., interview questions for workplace violence or sexual harassment allegations).
15. Follow-up the information obtained during the interview as quickly as possible. An investigator should respond promptly to pertinent information obtained during an interview by: (a) conducting interviews of witness identified; (b) collecting evidence described; and (c) initiating research on all issues discussed.
Sources: State of North Dakota, Risk Management Division, Response to Complaints of Harassment, Violence and Discrimination, available at: http://www.nd.gov/risk/files/samples/response.pdf; Roy A. Ginsburg, "Conducting Investigations of Wrongful Workplace Conduct", Business Law Today, Volume 17, Number 5 May/June 2008, available at: http://apps.americanbar.org/buslaw/blt/2008-05-06/ginsburg.shtml; Diane Pfadenhauer, Workplace Investigation Tip: Other Evidence to Consider (December 6, 2012), available at: http://www.strategichrlawyer.com/weblog/workplace_investigations/; Debra L. Reilly, Workplace Investigations, available at: http://www.workplaceinvestigationsblog.com.
Contact Michael L. Buckner (954-941-1844; mbuckner@michaelbucknerlaw.com) for additional recommendations relating to conducting internal investigations.
|
Divisions I, II and III Column:
NCAA Bylaw 11.2.1 Primer: Head Coach Monitoring
Author: Justin P. Sievert (Senior Counsel)
NCAA Division I Bylaw 11.1.2.1 places the responsibility on the head coach of an intercollegiate athletics program to promote an atmosphere of NCAA rules-compliance within his/her program, as well as to monitor the activities of his/her staff to ensure compliance with NCAA legislation. Further, Bylaw 11.1.2.1 operates under a strict liability standard where a head coach is presumed to have knowledge of what is occurring in his/her program and, therefore, can be responsible for the actions of his/her staff and other individuals associated with his/her program.
Should the NCAA enforcement staff allege a Bylaw 11.1.2.1 allegation against a head coach, the head coach and his legal counsel must rebut this presumption of knowledge and provide evidence the head coach: (1) promoted a proper atmosphere of rules-compliance; and (2) reasonably monitored his/her program. In order to meet this standard, the NCAA has recommended head coaches undertake the following three-part approach:
Part I: Communication: A head coach should demonstrate a commitment to rules-compliance through ongoing communication with his/her president or chancellor, director of athletics, sport administrator, athletics compliance staff, sports program staff and student-athletes. This communication should include, but is not limited to: dissemination of rules-compliance resources; communication of rules-compliance philosophy and program expectations; and discussion of how the athletics compliance staff and head coach will share responsibility for rules-compliance.
Part II: Monitoring: A head coach should also demonstrate a commitment to compliance through monitoring his/her staff's activities in consultation with the athletics compliance staff. This communication should include, but is not limited to: assigning specific responsibilities to coaches and athletics compliance staff members; and developing written policies and procedures regarding responsibilities and reporting lines. The head coach should monitor his or her rules-compliance areas of responsibility on an ongoing basis.
Part III: Documentation: A head coach should document the ways in which he/she has demonstrated his/her commitment to compliance and monitoring activities. This communication should include, but is not limited to: meeting notes; agendas and attendance logs; written policies and procedures regarding responsibilities and reporting lines; any reports of investigations into alleged rules-violations; and any other monitoring/communication documentation.
Further, the Michael L. Buckner Law Firm recommends head coaches go beyond the NCAA head monitoring baseline by considering the following proactive measures that are designed to protect head coaches should a Bylaw 11.1.2.1 allegation occur:
Rules-Education Programming: In addition to rules-education programming by the athletics compliance staff, head coaches should conduct rules-education sessions on a regular basis with sports program coaches, staff members and student-athletes. Head coaches also should send out compliance reminders and educational information to sports program coaches, staff members and student-athletes on a regular basis.
Program Audit: In addition to evaluating Bylaw 11.1.2.1 responsibilities on an internal basis, institutions should retain an experienced outside firm to conduct regular external, independent audits of its head coaches' monitoring responsibilities. The audits should be made independently of an institution's regular rules-compliance audit.
Contact Justin P. Sievert (954-941-1844; jsievert@michaelbucknerlaw.com) for additional recommendations relating to the head coach monitoring responsibilities and programming.
|
Division I Column:
The New NCAA Enforcement Process: Cooperative Principle and Shared-Responsibility Proposals
Author: Michael L. Buckner, Esquire (Shareholder)
August 1, 2013, marks the first day of the new NCAA enforcement process. According to the NCAA media release, the revised process:
1. 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).
2. Enhances head coach's responsibility/accountability and potential consequences for head coaches who fail to direct their staffs and student-athletes uphold NCAA bylaws. Penalties include imposed suspensions that can range from 10 percent of the season to an entire season.
3. 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.
4. 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.
5. 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.
[Note: Additional information on the new enforcement process can be located on the NCAA public website, www.ncaa.org (under the "Enforcement" webpage), as well as the membership portal (under the "Working Group: Collegiate Model - Enforcement" webpage).]
In conjunction with the development of the new process, the Enforcement Working Group "recommended that the concept of shared responsibility be better defined and specific expectations be identified for participants in the enforcement processes." In its January 2013 report, the Working Group recommended:
[I]nstitutions should be expected to designate personnel outside of the athletics department to coordinate investigations with the NCAA enforcement staff. (For example, faculty athletics representatives would be considered personnel outside of athletics and could, at the institution's discretion, coordinate the investigation. It would not be required that faculty athletics representatives coordinate investigations, though, as many other individuals could meet this requirement, including individuals within the institution's general counsel's office.) Individuals working within athletics need to maintain strong working relationships with coaches and administrators; therefore, oversight of the investigation should fall upon those individuals working outside of the athletics or compliance departments who are not hampered by their affiliations with the student-athletes, coaching staff or compliance personnel. It is very difficult to expect individuals within the athletics department to oversee thorough investigations when part of their effectiveness requires a strong working relationship with the very people who are being investigated. This new expectation will demonstrate commitment to avoiding actual or perceived conflicts of interest in Level I and Level II cases.
However, in its May 2013 report, the Working Group reported "due to the Executive Committee's recent determination to have a review of the NCAA's regulatory activities, which include the enforcement processes, the working group is suspending the review and potential recommendations regarding the cooperative principle. Once the review of the enforcement and related processes are completed, the working group will review the results and determine whether additional review of the cooperative principle is appropriate."
Nevertheless, the Michael L. Buckner Law Firm recommends institutions review the applicable policies and procedures for investigating alleged NCAA rules-violations and prepare necessary revisions to comply with the possible changes to the cooperative principle and shared-responsible concepts by:
1. Designating a person, office or agency outside of the athletics department to coordinate investigations of possible Level I and II violations with the NCAA enforcement staff. For example, the office of general-counsel, the faculty athletics representative or outside counsel (e.g., Michael L. Buckner Law Firm) could perform this function.
2. Memorializing the institution's investigative protocol in a written policy and procedure.
Sources: NCAA Division I Working Group: Collegiate Model - Enforcement's January 2013 and May 2013 reports.
Contact Michael L. Buckner (954-941-1844; mbuckner@michaelbucknerlaw.com) for additional recommendations relating to developing policies and procedures addressing the new NCAA enforcement process.
|
|
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. |
|
|
|
|
Text-to-Join Our Newsletter Mailing List
It's easy to join the MLBLF mailing list!
Just send your email address by text message.
Text
MBUCKNERLAW
to 22828 to get started.
|
|
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
Facsimile: 954-941-1846
E-mail: mbuckner@michaelbucknerlaw.com
Website: www.michaelbucknerlaw.com
Blog: http://michaelbucknerlaw.wordpress.com
Twitter: @mbucknerlaw
LinkedIn: @michaelbucknerlawfirm
Facebook: http://tinyurl.com/michaelbucknerlaw
YouTube: @michaelbucknerlaw |
|
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.
The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send free written information about our qualifications and experience.
|
|
|
|
|
|
