“THE PROPOSAL FOR THE FUTURE: Get the NCAA Out of the Enforcement Game

In service of that goal, the NCAA should take the following steps to restore confidence in its commitment to fair treatment under its rules:

• Outsource Major Investigations: The NCAA should engage an outside entity (law firm, consulting firm, investigative agency, etc.) to manage the investigation of all major violations. Among other benefits, this outside entity would not labor under the same inherent conflicts of interest as the NCAA’s current enforcement staff.

• This outside entity should be comprised of professionals with significant investigative experience, such as former detectives and prosecutors—i.e., people with experience in questioning witnesses, processing large volumes of documentary evidence, building a case, connecting dots, etc.

• As opposed to its investigators being stationed in a central location, the entity’s investigators should be spread throughout the country to take advantage of broader networks of sources and facilitate more efficient responses to investigative leads.

• The NCAA itself can continue to process and penalize self-reported secondary violations, as appropriate. The outside entity, by contrast, will remain focused on investigating major violations. The self-reports of secondary violations can nonetheless be considered by the outside entity when investigating a member-institution or recommending punishments for major violations. (It would require a separate article to discuss whether the NCAA’s rulebook should be scaled back or recalibrated, but this salutary path could be complimentary to the one proposed here.)

• Outsource Punishment Decisions: Ideally, the NCAA would outsource the determination of appropriate punishment to this outside entity, as well.

• The outside entity could assemble its own Infractions Committees—unburdened by any current connection to member-institutions—comprised of some (possibly revolving) combination of experienced law enforcement officials, former judges, former athletes/coaches, and/or former university officials.

• If the NCAA refused to give up control of the power to penalize, the outside entity could nonetheless recommend punishments to the NCAA’s Committee on Infractions for ultimate decision within 60 days. If the committee rejected the outside entity’s recommended punishments, the committee would be required to publish a detailed statement of its reasons on the NCAA website to permit the public to evaluate a decision’s fairness.

• Be Transparent: The outside entity should publish both its findings and recommendations for punishment (with appropriate privacy protections). In addition to the general boost to credibility bestowed by such transparency, this will permit a body of written precedent to develop to which member-institutions can conform their actions and by which the NCAA’s consistency and fairness can be assessed by the public.

• Encourage Investigations: The NCAA should expressly encourage the outside entity to conduct investigations of major violations in order to demonstrate its commitment to integrity. This encouragement should emphasize the creation of investigations as opposed merely to awaiting member-institutions to self-report violations. In furtherance of this goal, the NCAA should repeal current restrictions on investigative techniques, such as the use of anonymous information and a requirement that NCAA investigators notify a member-institution before conducting interviews pursuant to an investigation.

• Commit Financially: As the phrase goes, the NCAA needs to put its money where its mouth is. Currently, the NCAA’s enforcement staff is one “central service” among many in the organization’s Indianapolis home office that divides 4 percent of the annual revenue. If the NCAA devoted only 3 percent of its annual revenue to the proposed venture, that would inject $22.8 million each year into the efforts to root out major violations. This is a relatively small price to pay for the NCAA’s member-institutions that should be viewed as a test of their commitment to integrity and enforcement. Moreover, in stark financial terms, it is an investment that could eventually earn the NCAA more money on the media contracts that generate most of its revenue.”