NCAA steering farther and farther away from harsh penalties
By RALPH D. RUSSO
The days of postseason bans and crippling scholarship reductions to punish schools for breaking NCAA rules appear to be winding down.
Memphis was placed on three years of probation earlier this week with a public reprimand and fined for NCAA violations related to the recruitment and short college career of James Wiseman, who is about to start his third season with the Golden State Warriors. The NCAA also wrapped up an investigation of Air Force football for breaking the COVID-19 recruiting quiet period.
No postseason bans or scholarship reductions in either case. The Independent Accountability Review Panel, the NCAA's outside arm of enforcement, said in its decision in the Memphis case that it did not want to punish current athletes.
That sentiment is widespread in college athletics these days, even with millions of dollars suddenly flowing to athletes from various sources for their celebrity endorsements amid concerns over improper inducements. In fact, it is on the way to being codified: Last month, the Division I Board of Directors adopted three proposals to change the infractions process.
The board also committed to "identifying appropriate types of penalties and modifying current penalty ranges, including identifying potential alternative penalties to postseason bans."
Trying to predict what those alternatives will be is difficult, but if the goal is to avoid harming athletes and others who were not involved in the violations the options are limited.
"I emphatically believe it's the wrong direction to go," said Nebraska law professor Jo Potuto, who spent nine years on the NCAA's Committee on Infractions in the late 1990s and early 2000s.
"If you're going to deter, the punishment has to fit the offense, right?" Potuto added. "You're not going to deter serious violations with penalties that are not perceived to be really serious."
Since January 2020, there have been at least 45 major infractions cases decided by the NCAA. Of those, at least 15 involved Level I allegations, the most serious and those carrying the most severe penalties; six cases resulted in some kind of postseason ban, with four of them self-imposed.
The Memphis case went through the IARP, which was created in response to the FBI's investigation of college basketball corruption but is now being discontinued. Sunsetting the IARP was among several recommendations put forth by the NCAA's Division I Transformation Committee earlier this year and recently adopted by the board.
As college sports moves toward less centralized governance by the NCAA and deregulation in general, the hope is to create a more streamlined enforcement process.
If justice is swift, the thinking goes, it is more likely to be applied fairly.
"The reality is the current system is broken," said Atlantic Coast Conference Commissioner Jim Phillips, a member of the transformation committee. "I think everyone in the association, in the enterprise, understands it. When (an investigation) takes the amount of time that it does now and you start to penalize young men and women that were high school, if not middle school-age (when the violation occurred), it's not an effective process."
The IARP is still handling cases stemming from the FBI probe involving Louisville, Arizona, Kansas and LSU. Those have been in the NCAA enforcement pipeline for years. A related case against Oklahoma State did not go through IARP and the Cowboys did end up with a postseason ban.
David Ridpath, a professor at Ohio University and former compliance director for several schools, said even though the IARP failed, NCAA enforcement would be best handled by an independent organization.
"No system is perfect, but if you're going to have an enforcement system at the end of the day you need to provide basic due-process protections and then you have to be able to consistently punish people," he said.
In the Memphis case, Wiseman received $11,500 from Hardaway in 2017 while Hardaway was coach at a local high school. Hardaway was hired as Memphis' coach in March 2018, and Wiseman committed to the Tigers in November 2018.
The NCAA accused Memphis of four Level I and two Level II violations, including lack of institutional control, head coach responsibility and failure to monitor. In the past, those types of allegations could strike fear into athletic directors but probation and fines seem much more likely to be the outcome now instead of the sweeping scholarship sanctions, vacated victories and postseason ban that Southern California received in 2010 for the Reggie Bush improper benefits case. Those penalties set USC football back years.
In the end, the IARP essentially reduced the charges against Memphis and cleared Hardaway of wrongdoing.
While the NCAA is losing sway in the wake of last year's Supreme Court ruling, with more power being shifted to its member conferences, it also remains clear the schools still want the association to handle enforcement.
But what exactly is being enforced?
Athletes can now be paid for endorsement and sponsorship deals and college sports is still waiting on and hoping for help from federal lawmakers to regulate name, image and likeness compensation.
Plus, as revenue skyrockets for schools at the top of major college sports, the NCAA is trending toward fewer restrictions on what financial benefits can be provided to athletes.
"Until we have clarity and certainty on what schools and boosters and athletes can and can't do, I think many recognize that it's dangerous to hand down significant punishments when it's not clear what you can and can't do," said Gabe Feldman, director of the sports law program at Tulane. "And I think unless you have clear rules, it's hard to harsh punishment."
Still, punishments directed at schools (fines) and coaches (suspensions) could become steeper and longer, Feldman said.
Potuto said with so much money flowing into the top of college athletics, it is doubtful fines could be large enough to be a true deterrent. While she understands the desire to not have current athletes pay for the sins of previous regimes, loosened transfer rules could mitigate the potential harm.
"I will make one prediction: If there is a move to impose penalties much less frequently in five years there is going to be a move to put them back in," Potuto said.
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Updated September 29, 2022