NCAA Enforcement Process Changes

coit said:
Well you seem to be implying that a president could reasonably refuse to fully cooperate with an NCAA investigation involving his or her school and remain in good standing with his/her superiors. Obviously, this is not going to be the case.

I get what you are saying that it seems on the face of it unusual for the NCAA to make demands like that in a contract with a president, but the fact is that the NCAA already imposes many requirements on member institutions that are equal to this at least in spirit. This way, a president can't use an "I didn't know" defense when they get their school into trouble by not cooperating!
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Unfortunately, I don't think it's quite so obvious that this is never going to be the case. I think applying this retroactively, I see where CPJ could very well have run afoul of it himself, right after winning the ACC. The infractions committee chose to hit us with the book because it didn't like how he cooperated, and whether his lack of cooperation was unreasonable is not extremely straightforward. Well, now the book is that much bigger, however much you think that much is. Would they have declared CPJ uncooperative in a manner that caused him to be in violation of his terms of employment? It certainly would have been outrageous over an investigation about a couple of second hand items. Could they have? The "confidentiality" thing seems to say, pretty firmly, "yes". I suppose we'll find out relatively quickly about how much it really means, though, because NCAA investigations are always going on, and one of the headstrong characters involved is eventually going to disagree with the NCAA on what is "reasonable" or "timely" or "confidential" or whatever have you.
 
Apparently, at some schools anyway, Presidents do not have to be held liable for hiring people that steal from the school and taxpayers. Multiple times as well.

So I am sure how the NCAA would pose a threat.
 
ThisIsAtlanta said:
Would they have declared CPJ uncooperative in a manner that caused him to be in violation of his terms of employment?
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I think the disconnect here may be captured in this question. So what if the NCAA declares CPJ to be sufficiently uncooperative to have violated the terms of his employment?

The general rule is that only the parties to a contract have any rights to enforce the contract. There is a body of law covering "third party beneficiaries" in which a third party who benefits from a contract can enforce the contract under certain circumstances. But third-party beneficiary status is extremely limited, and hard to establish. (A key factor, for example, is that the contracting parties entered into the contract for the purpose of benefiting the third-party. Imagine a wedding planner that hires a venue for a wedding reception, but then has a falling out with the bride. The bride might be able to enforce the contract for the venue rental.)

In this case, there's no way that the NCAA would be a third-party beneficiary of these employment contracts, so whether or not the NCAA believes that CPJ has violated the terms of his employment, it's still "like, just your opinion, man." The decision whether to take action over the alleged breach remains with CPJ's employer (the GTAA). The GTAA is free to take NCAA breaches as seriously as it likes – and I'm sure it weighs that factor among all the other factors that are relevant to determining whether CPJ should be our football coach. But the NCAA has nothing but a bully pulpit to express its opinion and try to get the member institutions to act appropriately.

Well, it does have more than a bully pulpit insofar as it controls intercollegiate competition. So if the NCAA feels like the coach has broken the rules egregiously, hindered the investigation, etc., the NCAA could take that into consideration in applying its normal remedies – withholding scholarships, prohibiting post-season play, barring the coach from intercollegiate competition, or even shutting down the program. While it is hard to envision a situation where a program gets the death penalty but the coach isn't fired, it remains the GTAA's decision whether to fire him, not the NCAA's.
 
18in32 said:
I think the disconnect here may be captured in this question. So what if the NCAA declares CPJ to be sufficiently uncooperative to have violated the terms of his employment?

The general rule is that only the parties to a contract have any rights to enforce the contract. There is a body of law covering "third party beneficiaries" in which a third party who benefits from a contract can enforce the contract under certain circumstances. But third-party beneficiary status is extremely limited, and hard to establish. (A key factor, for example, is that the contracting parties entered into the contract for the purpose of benefiting the third-party. Imagine a wedding planner that hires a venue for a wedding reception, but then has a falling out with the bride. The bride might be able to enforce the contract for the venue rental.)

In this case, there's no way that the NCAA would be a third-party beneficiary of these employment contracts, so whether or not the NCAA believes that CPJ has violated the terms of his employment, it's still "like, just your opinion, man." The decision whether to take action over the alleged breach remains with CPJ's employer (the GTAA). The GTAA is free to take NCAA breaches as seriously as it likes – and I'm sure it weighs that factor among all the other factors that are relevant to determining whether CPJ should be our football coach. But the NCAA has nothing but a bully pulpit to express its opinion and try to get the member institutions to act appropriately.

Well, it does have more than a bully pulpit insofar as it controls intercollegiate competition. So if the NCAA feels like the coach has broken the rules egregiously, hindered the investigation, etc., the NCAA could take that into consideration in applying its normal remedies – withholding scholarships, prohibiting post-season play, barring the coach from intercollegiate competition, or even shutting down the program. While it is hard to envision a situation where a program gets the death penalty but the coach isn't fired, it remains the GTAA's decision whether to fire him, not the NCAA's.
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Obviously in a technical manner this is correct, and I'm not attempting to argue that the NCAA can literally terminate a contract between two other parties, but if the NCAA made the suggestion that CPJ was in breach of contract and then the GTAA acted on it, I wouldn't be looking at the GTAA as the root cause of his firing. Especially because of the bully pulpit you mention. There's no real scenario where the GTAA doesn't act on that suggestion given that the alternative is facing virtually unlimited sanction or leaving the NCAA.

Maybe I'm being a little expedient here, but I just don't really see the useful distinction between someone who can actually fire you and someone who can get you fired in this manner. I guess that's a philosophical issue, but I'm a "walks like a duck, talks like a duck" kind of guy. In both cases you have a party that wants the employment terminated, and then it happens. To me, that's a firing, even if there are technically alternate realities where an employer can immolate itself to defy the will of that party. Those will never materialize, so they might as well not even exist.

Come to think of it, there seems to be a parallel here in the pay the players debate, where some insist athletes have choices that also roughly amount to self immolation if they don't like their terms. You and I have come down on the opposite sides of what to call that as well, if I recall.

I guess it is what it is. So to speak.
 
ThisIsAtlanta said:
Obviously in a technical manner this is correct, and I'm not attempting to argue that the NCAA can literally terminate a contract between two other parties, but if the NCAA made the suggestion that CPJ was in breach of contract and then the GTAA acted on it, I wouldn't be looking at the GTAA as the root cause of his firing. Especially because of the bully pulpit you mention. There's no real scenario where the GTAA doesn't act on that suggestion given that the alternative is facing virtually unlimited sanction or leaving the NCAA.

Maybe I'm being a little expedient here, but I just don't really see the useful distinction between someone who can actually fire you and someone who can get you fired in this manner. I guess that's a philosophical issue, but I'm a "walks like a duck, talks like a duck" kind of guy. In both cases you have a party that wants the employment terminated, and then it happens. To me, that's a firing, even if there are technically alternate realities where an employer can immolate itself to defy the will of that party. Those will never materialize, so they might as well not even exist.

Come to think of it, there seems to be a parallel here in the pay the players debate, where some insist athletes have choices that also roughly amount to self immolation if they don't like their terms. You and I have come down on the opposite sides of what to call that as well, if I recall.

I guess it is what it is. So to speak.
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I'm not sure we do disagree. The question of who "technically" has the power to fire CPJ is terribly important legally, but if you have strong opinions about who's "non-technically" responsible for CPJ's termination, I take no issue with it. I've got no problem blaming anybody you want to blame. My view is that if things ever got to a point where the NCAA was trying to pressure the GTAA to fire CPJ, many people and institutions (including the NCAA, the GTAA, the Board of Regents, and CPJ himself) would bear some portion of the responsibility for the situation and for the ultimate decision to terminate.

I do think you overestimate the NCAA's ability to push around the member institutions. The NCAA is just a collective decision making body for its members. If some administrator at the NCAA strays too far outside the bounds of the norms established by the member institutions, there are plenty of institutional mechanisms to rein them back in. You're not going to get a case where the NCAA attempts to sanction a school for refusing to fire its coach, unless a whole bunch of peer schools agree the guy needs to go. In which case there would also be a sizable number of decision-makers in the subject school who want him gone, too. It's not ever going to be a clear-cut "NCAA vs. GTAA" situation.

After all, the reason GT is bound by the NCAA is because GT wants to be bound by the NCAA. Perhaps it is ridiculous to suggest that a school would defy the NCAA on its own, but if the NCAA began to do things that weren't consistent with the interests of its members (or even a large portion of its members), the schools would just change things – or leave. The P5 schools threatened that quite recently to get their way, and the history of television rights bargaining exemplifies it as well. The NCAA is a relatively weak regulatory body.

Ultimately what this issue demonstrates is that NCAA rules are less like the laws of nature and more like a book of wisdom. That is to say, firing CPJ for breaking an NCAA rule will always be a political question not a legal one. No matter what the letter of the law is, it's people agreeing with those laws which result in them being enforced. To paraphrase LW, a rule cannot apply itself.

Just my 2¢!
 
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18in32 said:
I'm not sure we do disagree. The question of who "technically" has the power to fire CPJ is terribly important legally, but if you have strong opinions about who's "non-technically" responsible for CPJ's termination, I take no issue with it. I've got no problem blaming anybody you want to blame. My view is that if things ever got to a point where the NCAA was trying to pressure the GTAA to fire CPJ, many people and institutions (including the NCAA, the GTAA, the Board of Regents, and CPJ himself) would bear some portion of the responsibility for the situation and for the ultimate decision to terminate.

I do think you overestimate the NCAA's ability to push around the member institutions. The NCAA is just a collective decision making body for its members. If some administrator at the NCAA strays too far outside the bounds of the norms established by the member institutions, there are plenty of institutional mechanisms to rein them back in. You're not going to get a case where the NCAA attempts to sanction a school for refusing to fire its coach, unless a whole bunch of peer schools agree the guy needs to go. In which case there would also be a sizable number of decision-makers in the subject school who want him gone, too. It's not ever going to be a clear-cut "NCAA vs. GTAA" situation.

After all, the reason GT is bound by the NCAA is because GT wants to be bound by the NCAA. Perhaps it is ridiculous to suggest that a school would defy the NCAA on its own, but if the NCAA began to do things that weren't consistent with the interests of its members (or even a large portion of its members), the schools would just change things – or leave. The P5 schools threatened that quite recently to get their way, and the history of television rights bargaining exemplifies it as well. The NCAA is a relatively weak regulatory body.

Ultimately what this issue demonstrates is that NCAA rules are less like the laws of nature and more like a book of wisdom. That is to say, firing CPJ for breaking an NCAA rule will always be a political question not a legal one. No matter what the letter of the law is, it's people agreeing with those laws which result in them being enforced. To paraphrase LW, a rule cannot apply itself.

Just my 2¢!
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I'm not super familiar with NCAA processes, but the bolded doesn't seem to ring true, based on what I'm reading. The power to sanction a school for non-cooperation rests in the hands of the chair of the infractions committee. It doesn't seem like it's subject to a vote or requires input from anyone with the school at issue or any of their peers. Which makes sense, because the whole purpose of creating the power was to strip the defenses away from institutions that would prefer to stonewall the NCAA in its investigations. Why give them a method to stonewall even that? Now, if the NCAA tells your coach, "turn over these documents" and he says "I don't have to", the chair himself can simply say "you're in violation of your employment contract, and I find you guilty of all the violations we're investigating." It's not entirely clear that the infractions committee at large has much of a role after that, although I suppose you can probably appeal it, which has proved to be a pretty laughable option in NCAA history. The idea that this wouldn't be in the best interests of member institutions in general is belied by the fact that the collective reasoning of these institutions generated the new rule to begin with. In short, we've all already agreed to live under the sword, I think we all understand that means its falling on someone's head is a real possibility.

As for the second part of the post, I agree that if the NCAA did something ridiculous like fire CPJ for $312 dollars of second hand clothes that were subsequently returned anyway, there would probably be some backlash and the rule would change, but the idea that any member institution has sufficient incentive to leave the NCAA on the basis of the treatment of another is a stretch, in my opinion. The P5 schools didn't threaten to leave over the way one or two of them were being treated, each one of them had similar grievance. I'm not familiar with what you're citing when you mention television rights bargaining, but I only know of one conference that used its collective bargaining power to benefit a single one of its member schools disproportionately in that arena, and that one very nearly disintegrated completely in the last round of realignment for that very reason. At the end of the day, self-interest dominates this sort of thing, and it's difficult to imagine a scenario where the use of this rule creates an incentive for enough schools that a CFB revolution of sorts becomes a real threat. After all, SMU getting the death penalty precipitated the end of a whole conference, partially because of the reduced value of TV rights, and not exactly an insignificant conference, either. The NCAA stuck around through that, so I think it's not as relatively weak in practice as it is on paper.
 
Ed Sawyer said:
I do think the "immediate" discretion to implement sanctions because of non-cooperation is different though, like you said. This will likely stop some of the stonewalling universities do in the hope the NCAA just goes away.
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Why do the schools keep agreeing to this draconian stuff? What the hell incentive do we have to sign on to this?
 
Yukonwreck said:
As a term of employment you must sign the papers that delineate the new procedures.
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That doesn't seem to make sense in the face of the next part of the sentence, mainly "must commit contractually to full cooperation". Unless I'm missing something about what you're implying with this.
 
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