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What is a "Failure to Monitor"?: A Review of the Committee on Infractions' Expectations, Part V [Higher-Ed/College Athletics Best Practices Alert (Third Quarter 2014)]

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." Buckner continues its 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 (COI) to illustrate the scope of an institution's duty to monitor. The fifth article in this series reviews the June 27, 2014, decision of the COI in the University of New Hampshire enforcement case.

The June 27 infractions report was decided through the summary disposition process “in which all parties agreed to the primary facts, violations and violation levels as fully set forth in the summary disposition report (SDR)”. The violations in the case pertained to “the actions of an alumnus who was also a representative of the institution's athletics interests”. The COI concluded during the 2008 to 2012 period, “the representative of the institution's athletics interests provided impermissible benefits such as small gifts, meals, money for travel expenses and financial assistance for tuition to one or more of the eight then current or former student-athletes identified in this case and/or their family members. The former student-athletes received the impermissible benefits while enrolled at the institution and after graduating with no remaining years of eligibility.”

The institution and enforcement staff concurred, and the COI agreed, the institution failed to monitor the conduct of the representative, as well as failed to report or appropriately follow up on the information concerning the representative's provision of gifts or educational assistance, in the following ways:

  1. “The head women's volleyball coach was present when the representative of the institution's athletics interests provided graduation gifts to four women's volleyball student-athletes”, but “failed to recognize the provision of benefits as a violation of NCAA legislation and failed to report the matter to the athletics department.” The committee concluded the representative was able to continue providing impermissible benefits to other student- athletes as a result of the coach’s failure to report. Recommendations: (a) Identify (and put in writing) an office or persons to whom allegations of rules violations can be reported by coaches, student-athletes, employees and other parties; (b) Remind coaches, student-athletes and employees with athletically-related duties of their obligation to report promptly violations or possible violations—the reminder can be incorporated into a workshop, newsletter, memorandum, email or other method; and (c) Educate coaches, student-athletes and employees on an ongoing basis using multiple methods (e.g., workshop, newsletter, memorandum, email, social media) of NCAA legislation prohibiting impermissible benefits, including providing specific examples of impermissible benefits.
  1. A member of the athletics compliance staff became “aware that a student-athlete intended to receive educational expenses from an outside source”, but did not “ask the student-athlete appropriate questions or follow up on the matter to determine whether the arrangement was in compliance with NCAA legislation”. The committee concluded a violation occurred as a result of the staff member’s failure to investigate. Recommendations: Develop a written protocol and procedure for the investigation, review or assessment of possible rules-violations, including specific questions to ask when conducting due diligence when assessing whether an allegation should be investigated formally.

Contact Michael L. Buckner (954-941-1844; mbuckner@bucknersportslaw.com) for more information pertaining to the NCAA enforcement process and decisions of the Committee on Infractions.