The NCAA Division I Board of Directors has adopted key changes to the way in which NCAA infractions matters will investigated and processed in the future. The changes, which take effect on January 1, 2023, are intended to modernize and enhance the process, while focusing resources on the most serious violations. Another objective is to reduce the time needed to process and resolve violation proceedings.
President of the University of Georgia and Chair of the Division I Board of Directors Jere Morehead said in August that NCAA members are “committed to resolving cases fairly and in a timely fashion, thus holding those responsible for violations accountable and avoiding penalizing those who were not involved in rule-breaking.”
Among the key changes are the following:
Enhanced duty to cooperate: Institutions, staff, and student-athletes, upon learning of potential violations, will be required to preserve information, to provide immediate access to all electronic devices, and to encourage family members, spouses, boosters, and others to cooperate in the investigation. The number of aggravating and mitigating factors in the Bylaws has been expanded to reward prompt and full cooperation and deter efforts to hinder or impede investigations.
New head coach responsibility standard: Head coaches will be held responsible for serious violations committed by those who report to them directly or indirectly. Only in determining the appropriate penalty will the Committee on Infractions (COI) consider whether the head coach promoted compliance and monitored the program. The previous infractions approach, which included a rebuttable presumption of responsibility on the part of a head coach, has been abandoned.
Additional method for resolution: A new alternative for resolving infractions cases has been added, with the aim of providing the COI greater flexibility and reserving full hearings for only the most serious cases. The new method, known as a “Written Record Hearing,” will be employed in cases in which the facts are largely undisputed and the alleged violations not numerous or significant.
Clarification of appeal standard and limitation of appeals: Findings and penalties by the COI will be affirmed by the Infractions Appeals Committee (IAC) if there is information in the record that supports the decision. Findings and penalties will not be set aside unless no reasonable person could have made the ruling given the factual record. Appeals to the IAC as to the penalties imposed will be limited to those sanctions that fall outside legislated penalty guidelines, or “core penalties.” The majority of appeals will be decided based on the written record without the need for oral argument. Finally, and as is also the case with the revised COI process, extensions of time will be granted only in extreme and clearly defined circumstances.
Aggravating and mitigating factors: The new guidelines clarify which factors apply to institutions and which apply to involved individuals. Previously, this was unclear and often debated. New aggravating factors have been added, including hindering an investigation or inhibiting the COI’s processing of a case. New mitigating factors also have been added, including a demonstration of exemplary cooperation by, for example, securing meaningful cooperation from an outside party.
Name, image and likeness (NIL): In this rapidly evolving area, the bylaws provide that if available information indicates that behaviors surrounding an NIL offer or agreement is contrary to NCAA legislation, it shall be presumed that a violation occurred. The charged institution or involved individual will then be required to rebut this presumption with credible and sufficient information that a violation did not occur.
In addition to the above changes, the new infractions construct eliminates the Independent Accountability Resolution Process (IARP), which had been created at the recommendation of the Commission on College Basketball chaired by Condoleezza Rice. While acknowledging the panel’s thoroughness in deciding the several cases referred to the IARP, it was concluded that this new process prolonged case timelines and required substantial additional resources to bring cases to resolution.
Finally, the Board of Directors announced that it will consider additional future changes that may help to deliver timely and fair outcomes in infractions matters. Among the subjects under further consideration are (i) requiring increased documentation of recruiting efforts, (ii) adjusting the size and composition of the COI, (iii) modification of penalty ranges (including alternatives to post-season bans), and (iv) enhancing confidentiality rules for involved parties during investigation by the NCAA enforcement staff.
The Collegiate and Professional Sports group at Jackson Lewis has represented Division I institutions in infractions cases and stands ready to assist colleges and universities facing such issues in 2023 and beyond.