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Crime and Punishment, College Sports Style

Crime and Punishment, College Sports Style
June 18, 2008

National Collegiate Athletic Association officials have long since given up believing that they can satisfy everyone. In virtually all of its major activities, the country's leading college sports group walks a line in which it tries to persuade skeptics -- members of Congress, faculty leaders, and others -- that it has a grip on the professionalism and potential graft in big-time college sports, while at the same time keeping the coaches, athletes and sports officials who are its primary constituents that it is looking out for their well being and is not a tyrant.

That tension has traditionally been most acute in the NCAA's enforcement of its voluminous rule book, which is when the interests of the national office in reining in perceived abuses and meting out punishment to wrongdoers clashes most directly with the interests of some of its members (at least said wrongdoers). But in recent years, as the NCAA has instituted a new academic reporting system that for the first time punishes colleges when their athletes fail to perform in the classroom, the association has also opened itself up (depending on what it does) to accusations from colleges that it is becoming a classroom cop and from critics that it is going soft.

On Tuesday, the Knight Foundation Commission on Intercollegiate Athletics, which for nearly 20 years has been a periodic (and usually genteel) force for change in big-time college sports, brought several NCAA officials to Washington to discuss the countervailing pressures and priorities that the association faces both in its historical enforcement of competitive rules and in its new academic system.

The topics were addressed separately; in the first, NCAA officials responded to complaints from some faculty critics that they had penalized too few teams in the latest round of punishments based on academic performance; in the other, they reacted to recent suggestions (including from the association's president, Myles Brand) that the NCAA may be too loathe to levy its most blistering punishments (like its so-called death penalty) on rule breakers.

But a common theme emerged from the two sessions, as in both, NCAA representatives asserted that as important as it is for the association to enforce its rules and to hold colleges accountable for their performance (and missteps), their primary goal is not to deter wrongdoing but to encourage improvement.

While some observers have viewed the NCAA's new academic rules as a way to exact a "pound of flesh" from colleges that perform poorly academically, said Wallace I. Renfro, senior adviser to the NCAA's Brand, "that was never the goal of the NCAA. The goal was to change behavior and improve academic performance, and I can tell you that's what we're starting to see."

The NCAA's rules enforcers, meanwhile, are "generally viewed as the grim reaper in what we do," said Gene Marsh, a longtime member of the NCAA's Division I Committee on Infractions and a law professor at the University of Alabama at Tuscaloosa. "But I think we ought to be focused on making the institutions better. We shouldn't just be coming in and extracting that pound of flesh. We should try to change the behavior of institutions."

Much of the discussion, in both sessions, focused on how the NCAA should balance punishment versus encouragement. That tension is ripest in the NCAA's nascent system for gauging the academic progress of athletes, because the association and its members are just finding their way in it. A month ago, in the fourth year of the system, the association said that it would penalize a total of 218 teams at 123 colleges in Division I because they fell short of the NCAA’s minimum standards for eligibility and completion in the 2006-7 academic year. The most serious penalties this year were scholarship reductions, but in future years teams that continue to lag could be barred from postseason play, equivalent to the toughest penalties for recruiting violations and other types of rule breaking.

Some critics expressed dismay that the association announced plans to punish far fewer teams than its officials had projected the year before, and that dozens of teams evaded penalties or faced only minor sanctions even though they fell below the NCAA's numerical threshold for signifying trouble under its Academic Progress Rate. But those predictions, Renfro noted, were projections of what might happen "if nothing changed" by the following year.

But things did change, he and other NCAA officials asserted Tuesday: Many colleges saw significant improvements in the academic performance and profile of their athletes, and the association granted waivers that averted or softened punishment for some institutions that fell under the APR threshold after rigorous reviews showed that they had improved and had aggressive plans to improve further.

"This program's not about penalizing teams," said Bill Regan, director of membership services at the NCAA. "For those programs that have demonstrated a commitment to improve their performance ... we certainly want to provide them an opportunity to do so."

Members of the Knight panel pressed Regan and other NCAA officials on how the association decides which institutions deserve relief, given how subjective the concept of "improvement" is. "You talked about 'moving in the right direction,' " said Clifton R. Wharton Jr., former CEO of TIAA-CREF and ex-president of the State University of New York, among other things. "Is that a 5 percent move, a 10 percent move? I would like to get a little bit better sense of how those judgments are made. "Credibility in these numbers is so important," added Len Elmore, a lawyer, broadcaster and former professional basketball player on the commission.

In response to that prodding, Regan described in detail the process the NCAA uses to review colleges' requests for waivers from their penalties for underperforming on the Academic Progress Rate, which measures the extent to which athletes and their teams are remaining both enrolled and in good academic standing. Regan said association staff members dig deeply into the credentials and transcripts of athletes, looking for signs that a college is enrolling better prepared athletes, that freshmen are performing better than previous classes of students, that the institution is granting fewer special admissions, and the like.

Regan made clear, though, that a college given a break for one year because it had made progress would not get a permanent pass if it did not meet the goals it set for itself and continue to improve the following year. "If you're moving in the right direction, we'll continue to provide you relief [from penalties]," he said. But "if you fail to implement your plans, and achieve your goals," a college will face the music. "Conditional relief is just that."

Enforcing the Rules

The NCAA may have just started punishing members who fall short of the association's academic progress standards, but it has long penalized colleges whose coaches and other officials break its rules designed to assure fair competition. And for as long as the NCAA has enforced its rules, it has had colleges or coaches or others who accuse it of heavyhandedness or worse -- sometimes in the courts, and in at least one case, all the way to the U.S. Supreme Court.

Interestingly, the latest chatter about whether the NCAA's system for punishing rule breaking strikes the appropriate balance between toughness and tenderness, punishment or collaboration, appears to have been motived in part by the association's new penalties for academic underperformance. Renfro, the aide to Brand, said the NCAA's president had asked members of the NCAA's infractions committees whether its own penalty structure and use of punishments was adequate, given that the association's Committee on Academic Performance had "put in place some pretty significant penalties based on academic performance."

Such a discussion is now under way, said Josephine R. Potuto, a University of Nebraska law professor who heads the Division I infractions panel. "If [the academic performance committee] is imposing 5-10 percent scholarship reductions for a team that does not meet satisfactory academic performance," Potuto said, it seems legitimate to suggest that "for a team that cheated in order to attain satisfactory academic performance ... the penalty has to be at least as serious." "It looks as if the committee will be upping the ante on violations," she said, though she made clear that she was speaking only for herself.

One panelist, Chad D. McEvoy, an assistant professor of kinesiology and recreation at Illinois State University, presented research he had done indicating that the imposition of major penalties by the Division I infractions panel had virtually no impact on the ability of the punished programs to win games in the aftermath. He acknowledged that "certainly penalties have repercussions that go beyond the on-field performance," such as doing financial and public relations damage to colleges and hurting the job security of the involved coaches and administrators. But the results of his study, McEvoy suggested, suggest that "penalties do not or have not sufficiently placed a hardship as measured by performance on rules violators," and that "the role of penalties as a deterrent must be called into question."

McEvoy's thesis was generally dismissed by the other panelists, who questioned whether it was effective, let alone wise, to try to "carpet bomb schools and lay waste to them," as Marsh, the Alabama law professor, put it. Mike Glazier, a former NCAA investigator who has built a law practice representing colleges before the NCAA, said toughening NCAA penalties would discourage the increasing number of colleges that self-report their own violations, and threaten to return the association to the bad old days when legal challenges to its authority were plentiful.

Marsh also questioned who really favored tougher penalties for rule breakers.

"I keep hearing that university presidents want tougher penalties. They may talk a big game when they're in gatherings like this," he said, looking around the room at the current and former college chief executives around the room. "But I guarantee you that when university presidents come before us, they don't. It's 'Lord have mercy.' They ask for exceptions; 'that was then, this is now.' "

 

 

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