The National Collegiate Athletic Association is accustomed to hearing complaints from chastened colleges and coaches about the fairness of its process for punishing rule breakers. But now it's getting some guff from one of its own.
After nine years of service to the NCAA, Gene A. Marsh had a few things to get off his chest. Now, the former Division I Committee on Infractions chair wants to change the process through which institutions are penalized for breaking rules, by allowing dissenting opinions in cases and bringing in more nonpartisan judges.
Marsh, a law professor at the University of Alabama, wrote an article for the March issue of the Cardozo Arts & Entertainment Law Journal outlining and defending the two suggested revisions to the infractions process. Having both worked on the committee for the maximum of three terms and represented his university in numerous capacities involving athletics infractions, Marsh assertsthat he has “been on the butt and barrel end of the NCAA enforcement gun more than any member of the committee.” As a result of his experience, his recommendations are generating some attention among his former colleagues at, and associated with, the NCAA.
Currently, the committee consists of eight members who participate in deliberations about violations of NCAA bylaws and vote on the penalties handed down in respective cases, after the NCAA's own investigators have made a set of allegations and a college has responded to them. A maximum of three of these voting participants can be “public members” -- or those not associated with an institution or an athletic conference. Former judges or lawyers with some amount of experience with athletics cases are often selected to fill these positions. Marsh notes, however that in almost all circumstances a minimum of two “public members” serve as voting members. The majority of the members on the committee are employed by either NCAA member colleges or conferences. For example, the current committee is made up of conference commissioners, athletics directors and an institution’s lawyer.
“In addition to their own institutions’ respective brand, they sometimes sport the NCAA logo on their britches, shirts, laptop bags, beach towels, and umbrellas,” Marsh writes in the article. “In these positions, your paycheck does not come from the NCAA, but you sure feel a part of the NCAA.”
This, Marsh argues, help perpetuate the public perception that the committee is more beholden to the NCAA and its enforcement staff than to the coaches and institutions whose interests it is charged with representing. Those appearing before the committee, he notes, are right to perceive “a lack of independence from the position of the NCAA.”
Therefore, Marsh suggests that the committee shift the number of “public members” from two to four, splitting its makeup equally between partisan and non-partisan voters. He argues that these outside voices bring a healthy amount of skepticism and objectivity to the infractions process that is often lacking on the part of members from academic institutions. Though he cannot give specific examples because of standing confidentiality agreements, Marsh maintains that he was privy to several cases in which the outcome was significantly changed as a result of an observation from a “public member.”
In an interview with Inside Higher Ed about his article, Marsh described his proposal as a “modest” step that would help correct the reality and perception of the committee’s partiality.
“I think [members of the committee] are drawn toward the position of the [NCAA infractions] staff when everything else is held equal,” Marsh said. “It’s OK if some of them are, but my suggestions would level the playing field. The fundamental problem is perception, and perception is huge in legal matters.”
Marsh’s second suggestion also relates to the public’s perception of the infractions process. Currently, all opinions on cases presented with the requisite penalties are signed by all members of the committee, implying that every decision is unanimous. This, he said, is often not the case.
“[Reporters and NCAA members] question how eight people could see the case the same way,” Marsh writes in his article. “The answer is, they sometimes do not, but those differences are lost, or at least not acknowledged, in written opinions. Are we extraordinarily collegial, or have we just become entirely too tame?”
As institutions acknowledge specific wrongdoing at the start of the infractions process, there is often no dispute about the facts of the case among members. Marsh, however, notes that there are sometimes disagreements in the levying of penalties. He adds that committee members and NCAA investigators occasionally disagree about whether "evidence supports a findings of an allegation."
Consequently, Marsh suggests that the committee allow for dissenting opinions in the full public reports of cases when members disagree, noting this is common in most legal proceedings. He argues this would strengthen the infractions process and provide a basis for future NCAA legislation. Airing such opposing opinions is a vital part of any judicial system, he reasons, adding that without them no one can have access to an “honest critic” of the system.
“There is some thought in [the NCAA] building that dissenting opinions could lead to more litigation,” Marsh told Inside Higher Ed. “The argument that this is aiding and abetting someone’s assault on the NCAA because there may have been differences of opinion is no more legitimate here than in the federal or state courts.”
NCAA officials had no direct response to Marsh’s two suggestions but did release a written statement calling him a “highly respected former chair” and noting it “welcomes perspectives on how any process might be improved.”
“The Committee on Infractions’ process is an administrative review, not a judicial review,” the statement reads. “As a result, the NCAA has periodically evaluated its enforcement and infractions process to ensure they are fair, effective, timely and consistent.”
Last October, for example, the Committee presented recommendations to the Division I Board of Directors that would toughen penalties for major infractions -- including potentially reviving the use of a ban which would prevent teams from having their games broadcast on television.
Though Marsh lauded these changes, he said he hoped the committee would also reconsider its makeup and position on dissenting opinions.
“Some people think rules are rules because they’re in the rulebook,” Marsh said. “Well, I want to change the rulebook. Some folks who think that the Good Book -- you know the big one -- was brought down the mountain by Moses also think that the NCAA bylaw manual was brought down with him.”
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