Out of Bounds? The Reach of NCAA Jurisdiction

The University of Louisville Cardinals and the University of North Carolina Tar Heels – two of the preeminent collegiate basketball programs in this country.  They have collectively appeared in thirty NCAA Tournament Final Fours, hoisting the championship trophy a total of ten times.  Yet, both programs are currently embroiled in high-profile scandals that bear upon issues of the extent of institutional accountability and the reach of NCAA jurisdiction.

Indeed, recently, the NCAA handed down sanctions against the University of Louisville basketball program in response to a staff member’s arrangement of lascivious parties for recruits (e.g. arranging for prostitutes to engage in sexual activities with these teenage boys).  At the University of North Carolina, the charges are of an academic nature – for almost two decades, a number of university student-athletes were enrolled and participated in sham classes in the African and Afro-American Studies Department.

It is hard to argue that one set of infractions is worthy of more leniency than the other.  Both sexual exploitation and academic fraud run counter to the very foundations of the NCAA itself – student well-being and academic integrity – not to mention basic notions of moral decency.  The institutions themselves, moreover, have admitted to the occurrence of the underlying conduct; and yet, they both vehemently refuse to accept the NCAA’s rulings.

The University of Louisville, which sought to avoid the NCAA’s wrath by self-imposing a one-year men’s basketball postseason ban in the wake of the scandalous allegations, railed against the sanctions levied by the NCAA (including suspension of head coach, loss of scholarships and removal of wins) as being “unjust [and] inconceivable”.  Meanwhile, UNC, which, throughout the six-year long investigation, has consistently challenged the NCAA’s involvement in the matter, maintains that the issue at hand is an academic one, outside of the purview of collegiate sports’ governing body.

Instead of accepting blame and showing contrition, then, both institutions have displayed outright defiance at what they view as jurisdictional overreach, a strategy not likely to serve either of them well going forward (just ask Penn State and Syracuse, respectively).  To be sure, the NCAA – charged with policing more than a thousand athletics programs, with limited resources and no subpoena power – faces some inherent challenges in enforcing its rules.  However, when the charges are undisputed and the same go to the foundational principles of collegiate athletics, there should be little resistance to corrective and disciplinary action.

This is even more the case when, as here, institutions voluntary join the organization and commit to abide by and uphold its governing precepts.  North Carolina’s claim that its bogus courses were not limited to student-athletes does not justify exclusion of NCAA jurisdiction.  The fact that another entity – in UNC’s case, its accreditor (the Southern Association of Colleges and Schools) – already issued penalties for the conduct at issue does not render the institution immune from further prosecution by overlapping authorities.  While the NCAA is certainly the governing body of intercollegiate athletics, its mission and countless regulations are replete with criteria and other references related to academics and well-being – without them, the “student-athlete” paradigm would, in effect, fall by the wayside.

Similarly, Louisville’s assessment of the NCAA as lacking power and of its ruling as a “very large mistake” carries little weight.  Institutions and their respective athletics departments will not be incentivized to fully ensure compliance until the sanctions levied properly correspond to the particular transgressions.  Furthermore, the courts, in the absence of blatant due process violations, have typically exhibited a fair amount of deference towards the NCAA when it comes to academic, amateurism and internal disciplinary matters (akin to the discretion afforded its own member schools on faculty tenure and student code matters, for example).  To suggest that the NCAA has no role in either of these two cases, then, is not only legally unsound, but, more importantly, diverts attention away from the underlying wrongdoing and effective approaches to avoiding its future recurrence.

While UNC’s appeal later this month and that of Louisville thereafter stand to shed further light on the full ramifications of these types of incidents, some implications for NCAA colleges and universities are already clear.  First, it behooves schools’ athletics directors, general counsel and presidents (on whom ultimate responsibility for athletics lies), to design, implement and maintain a comprehensive and robust system of compliance and internal controls.  To the extent infractions nonetheless arise, it is in these officials’ institutional interest to timely self-report and self-impose meaningful restrictions (a scholarship here, or a postseason ban there, will not suffice in these kind of cases) to gain the good graces of the NCAA and restore their constituencies’ confidence in the school and its athletics department.  To do otherwise is likely to be nothing more than a fool’s errand, as the NCAA will surely continue to dig in its heels (no pun intended) and defend its turf amidst mounting assaults on its foundational principles.