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NCAA ENFORCEMENT PROGRAM
TUESDAY, APRIL 18, 1978
HOUSE OF REPRESENTATIVES,
Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 2322, Rayburn House Office Building, Hon. John E. Moss (chairman) presiding.
Mr. Moss. The subcommittee will be in order.
We continue this morning with the subcommittee's examination of the National Collegiate Athletic Association's enforcement program and related issues.
Yesterday, we heard from a young Oklahoma State University student and his attorney, Miss Lana Tyree. who voiced strong opinions based on her own experience in dealing with NCAA enforcement machinery.
Perhaps more important, Miss Tyree suggested one way in which the Congress might help remedy certain deficiencies in the present apparatus by creating a statutory property right for student athletes. Such a measure is attractive in that it helps insure due process without creating a Federal bureaucracy to go along with it. At any rate, as our hearings go on, I am hopeful that we will be increasingly alert to the possible remedies for what is more and more apparently a deficient enforcement system.
Our witnesses today are in an excellent position to help us with the question of remedies and to relate to us their own personal experiences with NCAA justice.
We welcome Dr. Burton Brody, professor of law at the University of Denver, and Mr. Murray Armstrong, former hockey coach at the University of Denver.
Gentlemen, will you stand and be sworn?
Do you solemnly swear that the testimony you are about to give this subcommittee shall be the truth, the whole truth, and nothing but the truth, so help you God?
Dr. BRODY. I do.
Mr. Moss. I understand you have a statement, professor, and we would be pleased at this time to receive it.
TESTIMONY OF BURTON F. BRODY, PROFESSOR OF LAW, UNI
VERSITY OF DENVER, ACCOMPANIED BY MURRAY ARMSTRONG, FORMER HOCKEY COACH, UNIVERSITY OF DENVER
Mr. BRODY. Thank you, Mr. Chairman.
My name is Burton F. Brody. I am a professor of law at the University of Denver. I have conducted seminar courses in sports and the law at the law school, and have conducted, participated in, and attended continuing legal education programs in legal representation of professional athletes. Most of my scholarly interest in sports has been at the professional level, but one course conducted at the college of law investigated intercollegiate sports as administered by the NCAA.
I also organized and participated in a program on the NCAA for the education law section of the Association of American Law Schools. At the present time, I am the university's faculty representative to NCAA and to the Western Collegiate Hockey Association. I am also a member of the faculty athletic committee.
However, it saddens me to report that the major portion of my education in intercollegiate athletics does not come from my scholarly studies or from contributions to our campus life. Rather, what I understand about intercollegiate athletics, especially the NCAA enforcement program, was learned by serving as a special counsel representing the university and some of its students before the infractions committee of the NCAA, the eligibility appeals committee, the NCAA Council and the executive committee of the association.
I also joined the university counsel, Mr. Victor Quinn of the Colorado bar, and special counsel, Mr. Gordon A. Martin, Jr., of the Massachusetts bar to litigate the university's case in the Federal courts. As part of the discovery in that lawsuit, I deposed Prof. Arthur Reynolds of the University of Northern Colorado, who serves as chairman of the NCAA Committee on Infractions. That deposition confirmed the fears my experience with the enforcement program of the association had created. It gives a thorough description of the committee's operations. A copy of that deposition has been submitted to this committee.
A this point, I would like to express my personal gratitude to this committee and the Congress for conducting this inquiry into the enforcement program of the NCAA. Based on my study and my experience with it, I believe that the practices and procedures of the infractions committee are unfair, unjust, arbitrary, and heavy-handed. The enforcement program, as I have come to know it, is without simple decency and fundamental fairness. It provides none, and I emphasize that, none of the safeguards knowledgeable U.S. citizens expect in any dispute resolution system.
And yet, in retrospect, I must admit that one should not expect those sa feguards of it because, as I view it, it is not a dispute resolution system. By the time the infractions committee begins an official inquiry, there is no dispute in the sense our legal system perceives a dispute. The defendant is guilty; and the infractions inquisition merely calls upon the defendant to supply additional evidence of that guilt, supply evidence of any other wrongdoing on its part, respect. fully murmur appropriate mea culpas, and accept the penance meted out by the infractions committee in a cooperative spirit to achieve association absolution.
The infractions hearings are a rank form of tokenism engaged in only to whitewash the prior determination of the enforcement staff. I thank the Congress for conducting this inquiry, because every time I questioned or challenged the infraction committee's practices, policies, or decisions, I was treated as if I were some sort of insane idiot who could not, and therefore did not, understand that the University of Denver had engaged in acts which threatened the very foundations of American higher education; and that, therefore, whatever treatment it received from the NCAA staff and infractions committee before punishment would be imposed was better than the university deserved and certainly more than the law required.
I want to thank Congress for being at least as troubled as I by the NCAA's enforcement practices, and initiating this inquiry which has served, at least, to restore my confidence in my own sense of fairplay.
The association has attempted to rationalize the severe penalties imposed on the University of Denver by characterizing the university as an uncooperative, defiant member of a voluntary association. My contacts with the association have taught me that NCAA membership is not voluntary in any but a technical definition of the word. The members realize that membership is not truly voluntary; and most significantly, the NCAA knows it is not. As proof of the lack of voluntariness of membership, I will cite two specific facts.
First, during the summer and fall of 1974, after Judge Tauro's decision in Buckton, the NCAA Council revised the hockey eligibility rules and procedures to comply with the law. To induce the hockey playing institutions to cooperate with the procedures necessary to implement the revised rules, the NCAA threatened that failure to do so could result in ice hockey being dropped as an NCAA sport. The efficacy of that threat is demonstrated by the fact that the revised procedures were followed despite the known administrative burdens they imposed.
An equally revealing measure of the superficiality of the assertion that NCAA membership is voluntary took place here in Washington in January 1975 during the NCAA Convention. A special, combined meeting of the ECAC and the WCHA was held to discuss the controversy surrounding ice hockey eligibility. I attended that meeting as an observer on behalf of our vice chancellor for academic affairs. At that meeting, it was asked how many schools would be interested in conducting intercollegiate hockey programs outside the NCAA.
Only one school-Denver, represented at the meeting by a naive newcomer expressed any interest in exploring the possibility. Clearly, the membership, now including even Denver, understands that if you want to play, you must belong. Eleven months later, in November 1975, the official inquiry by the infractions committee began, and so did my real education in the enforcement program of the NCAA.
One cannot doubt that the highly competitive nature of intercollegiate athletics, as they are administered by the NCAA, requires an enforcement program. Sadly, the history of intercollegiate athletics is replete with abuses of the rules and principles of amateur competition; and even more sadly, it is equally replete with corruption of edu
cational goals and principles. However, the appropriate response to anarchy has never been totalitarianism; nor is the appropriate response to evil an immoral adjudication and excessive punishment.
Simply stated, I lack confidence in any adjudicative system that cannot distinguish between cases where there are 118 instances of affirmative wrongful conduct and cases where there are 4 unintentional violations of rules which were found by the NCAA Council itself to be in need of revision and clarification. Clearly, an enforcement program which is incapable of distinguishing between such differing transgressions is seriously flawed.
Its most annoying flaw is its oft-described "cooperative nature." The NCAA's enforcement program is cooperative only in the same sense ancient Rome's system of capital punishment was cooperativethe condemned is expected to carry his cross to the crucifixion. It is worth noting that DU's "stations of the cross" were the Coronado Beach Hotel, the Crown Center Hotel, and the Nordic Hills Resort. I am constrained to observe that when the NCAA does it to you, they take you to a nice place. Whether in our particular case they will respect us in the morning, remains to be seen.
The University of Denver learned the unilateral essence of NCAA cooperation when we attempted to contact Warren Brown, the then director of enforcement, at the 1975 association convention. Our athletic director had just died and our faculty representative was unfamiliar with the details of the enforcement procedure. The university had just received the letter from Mr. Brown informing it that our case had been referred to the committee on infractions.
I was sent to the convention by the vice chancellor for the specific purpose of meeting with Mr. Brown to learn the full meaning of what had transpired. We attempted to contact Mr. Brown, both directly and through the good offices of Dr. Marcus Plant of the University of Michigan. Mr. Brown would not meet with us.
A far more serious imperfection in the enforcement program results from the fact that the individuals nominally responsible for it—the members of the committee on infractions—can, by the very nature of things, devote only a small portion of their time and talents to infractions matters. Thus, it seems to me, that judgments and decisions which seriously affect the lives of universities, educators, and students are, in actual practice, left to the enforcement staff. This default of authority to the staff has two major drawbacks. First, the staff-again by the nature of things
has a particularly jaundiced view of the ethics of intercollegiate athletics. And second, they have little, if any, real insight to the inner workings of campus life and administration. Yet, the enforcement staff controls the infractions process because they do the work. In my experience, the committee merely puts the academic community's imprimatur on the enforcement staff's conclusions.
Initially, I was surprised and shocked when I discovered how callous and insensitive a panel of teachers could be toward the plight of students who were ensnared in problems not of their own making. Upon reflection, my dismay has given way to embarrassment because I have come to realize that it was packagers and purveyors of sports entertainment who truly passed judgment; my colleagues in higher education were merely tools, albeit eager ones, of that un feeling process.
The NCAA enforcement program is fraught with procedural inadequacies which create unjust results. The inadequacies are apparent at the very initial stages of the program-promulgation of the applicable rules—and prevail throughout to its conclusion-appeal to tho floor of the convention.
The eligibility rule of the NCAA, the infamous "Official Interpretation 5," which lies at the heart of Denver's alleged transgression is a classic example of inadequate legislative drafting. The portion, which was operative in our case, is a single 106 word sentence which gives no indication of the true criteria of judgment. Tragically, our case is typical. The NCAA manual is a compendium of confusing overly technical legislation enacted at many levels—the constitution, the bylaws, executive regulations, and official interpretations—all of which seem to be equally binding and effective.
To believe that such poorly drafted and organized rules can guide the conduct of intercollegiate athletics and be administered by coaches and athletic directors is to believe the moon is made of cheese.
Yet, I am convinced that it is this very perplexity which gives the NCAA so much power. One of the services it provides the schools is assistance in understanding the rules. If a member is in doubt about the application of a particular rule, it can telephone the enforcement staff and get an informal, advisory opinion. The staff thus becomes aware of all doubtful eligibility questions which exist-an enormous source of potential power. But the real problem arises, if the members should disagree with the informal opinion.
Thus, in the Denver case, we were confronted at the hearing by a member of the enforcement staff, acting as prosecutor, who also was his own best witness. He stated to the committee on infractions that he had told the athletic director the students were ineligible and his advice was no followed. And, therefore, he argued, it was clear that the university had: "Failed to fulfill its obligations of membership."
Additionally, this same member of the staff is the one who determined that the matter was one for the infractions committee's attention; aided that committee in determining that its official inquiry was called for, drafted those charges, assisted the committee in determining the appropriate penalty, assisted it in writing its two reports on the case, and aided in the presentation of the committee's position to the council of the association. There is no question in my mind that we did not receive an impartial hearing before the infractions committee. I am, in fact, convinced that impartiality is not available before that committee.
That hearing was a farce. It was at best a burlesque of fairness. No evidence was presented; only the conclusions of staff members. No witnesses were called. The only “testimony” was by the enforcement staff member, without oath, stating the rankest sort of mixture of hearsay and opinion as part of his prosecutorial arguments. And, of course, such a procedure does not contemplate anything approaching cross-examination.
Other aspects of the infractions procedures are also suspect. The notice of the charges against us was so vague as to be misleading. Further, although the infractions committee decided in January 1975 to proceed against us, we were not notified until November and then