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required to prepare a defense in 24 days—still another example, I might add, of the so-called cooperative spirit of the enforcement program.
And, to add insult to injury, additional charges, which became a significant factor in the case against us, were added the day before the hearing. And there was absolutely no notice that new charges were added by the council as a result of our appeal to that body, until its decision was published and we learned that additional penalties had been imposed.
The infractions committee's adamant “no-transcript” policy effectively prevented any meaningful appeal from their decision. Further, their practices of not even tape recording their deliberations as to guilt and penalty made, and makes, any review of their judgment impossible. And tragically, but not surprisingly, there is evidence that the committee does not even adhere to association legislation in determining the penalties to be imposed.
In this deposition, Dr. Reynolds admitted that his committee does not have any means by which to implement the “guiding principle” of section 7(a) of its enforcement program. There is no procedure to determine what violations constitute a "general disregard of governing legislation" as distinct from specific isolated violations.
This lack of procedure by which to implement the "guiding principle” of 7(a) had serious prejudicial impact on our penalty. Reynolds admitted that his committee had not considered any of the mitigating factors submitted on our behalf. Specifically, he stated that his committee did not consider any of the NCAA constitutional arguments made by the university in its defense ; nor did they consider the general confusion surrounding ice hockey eligibility questions, especially as aggravated by the decision in Buckton; nor did they consider the effect of the death of the then-athletic director, the person most knowledgeable in dealing with the NCAA on the university's ability to respond to the problem ;- nor did they consider our past clean record; nor did they consider three past instances of voluntary compliance with association rules.
Reynolds admitted that none of these facts were considered in reaching the conclusion that the university was guilty of a "general disregard” of association legislation and therefore deserving of a harsh and broad penalty. This failure to consider any of the mitigating circumstances submitted on our behalf was obviously contrary to any principles of fairness, and contrary to the dictates of the enforcement program itself. What greater evidence of lack of impartiality can there be?
Clearly, I believe that member institutions are treated horribly by the NCAA enforcement program. However, I believe that students, for whom intercollegiate athletics are conducted, are treated even worse. The due process hearing, granted them under NCAA recommended policy 13 in situations where their eligibility is in question, is by the very wording of the policy itself a meaningless exercise. The outcome of that campus hearing is certain. The student must be declared ineligible for athletic competition.
If the campus hearing fails to achieve that preordained result, the reputation of the school, its entire intercollegiate athletic program, and
the eligibility of each and every athlete on the campus to compete in championships is jeopardized. If the result of that hearing is predetermined, none of the protections normally thought of as included within the concept of due process are available to students who fall under the scrutiny of the enforcement program. Those whose athletic skills form the foundation of the artistic and financial success of intercollegiate athletics are entitled to better treatment by the NCAA enforcement program.
I am aware that due process is, as the NCAA so often points out, a relative concept; and thus the due process afforded students by the enforcement program may be all the law requires. Further, I am also aware that the courts have taken the position that participation in intercollegiate athletics is not a property right or a protected liberty, and that therefore, due process may not even be required. The question in my mind, however, has never been whether we must give due process, but rather, should we?
Intercollegiate athletics are education; the athletes are after all, our students; the NCAA is an association of schools and it is at least nominally run by educators. Is it the NCAA's educational goal to teach that the world is more expeditiously run by ignoring the rights of its citizens? I would hope not. This committee and your colleagues in Congress can help American higher education solve the problems that currently exist in the enforcement program of the NCAA.
As a matter of fact, your investigation has already helped. The members of the association desire reform of the enforcement program New section 12 of the enforcement procedure was adopted at the last association convention and corrects some problems. However, need for further reform remains. It is my hope that this investigation will reveal the additional areas of the enforcement program which need revision, and then the members will sustain the drive for that reform. However, while I firmly believe that the association should be given the primary opportunity and responsibility for internal reform, I also believe the Congress can play an important role in bringing the NCAA's enforcement procedures up to an acceptable level of fairness.
First and foremost, you can enact legislation stating that participation in intercollegiate athletics is a property right and protected liberty for universities and their students. Such legislation is both necessary and just. It is just because I do not believe the NCAA should be permitted to have it both ways. On the one hand, the association creates millions of dollars of television and tournament income, markets its endorsements, and courts the professional sports industry. On the other hand, it maintains that participation in intercollegiate athletics is not a property interest so that its governance of them is not subject to judicial scrutiny. Such legislation is not only fair, it is necessary to assure the Nation that the reforms adopted by the NCAA will grant those individuals and institutions subjected to its enforcement program the fair treatment they deserve.
Second, but of equal importance, Congress can use its authority to insure that further reform of the NCAA enforcement program undertaken by the association itself, be executed by a truly representative cross section of the members. Study of the association's structure, its officers and committee appointment quickly reveals that a relatively small number of individuals control the association's work. Over the years these individuals move from key committee assignments to offices and back to other committee assignments. They develop friendships with members of the administrative staff and with each other. More significantly, they develop loyalties and commitments to the NCAA's policies, practices, and procedures.
If internal reform of the official procedure governing the NCAA enforcement program is to be truly meaningful, it must be led by knowledgeable individuals devoid of an emotional commitment to the existing program.
Mr. ARMSTRONG. No, I have no statement. I thought if there were any questions you would like to ask, I would be delighted to endeavor to answer them.
Mr. Raabe !
Mr. RAABE. Thank you, Mr. Chairman. I would ask first that some documents be included in the record. The members already have them before them. These documents are the chonology of key dates in the Denver case, together with copies of the correspondence mentioned in that chronology. In addition there is a copy of official interpretation 5, which is appended to the September 27, 1974, letter of Mr. Byers. Also, the NCAA press release of May 11, 1976, disclosing the council's decision in this case will be included.
Mr. Moss. Is there objection?
CHRONOLOGY OF KEY DATES IN DENVER CASE
Byers' Memorandum to NCAA ice hockey-playing institutions noting
Twenty-seven institutions declared more than 100 hockey players ineligibile and appealed in Chicago. Eight players were found eligible; 97 were granted waivers as being eligible under revised and clarified rules, having been ineligibile under former rules; three were ineligible under either set of rules and received suspension for certain number of games; and, one was permanently barred. (Denver did not participate. )
11/13-12/9 Several telephone conversations between NCAA's Warren Brown and 74 Athletic Director Brawner regarding eligibility. (Brawner died
in December 1974.)
Brawner letter to Brown (NCAA) stating with respect to the five
Chancellor Mitchell certified university's compliance with
Mitchell letter to NCAA identifying four officials who would repre-
Hearing before Infractions Committee. Mitchell and Fletcher did not attend.
(1) of principle governing amateurism involving several
(2) of conditions and obligations of membership in that Denver did not declare student-athletes ineligible;
(3) of institutional certification requirements in that Mitchell erroneously certified compliance on 9/15/75;
(4) of cooperative principles in failure of Mitchell and
(5) of eligibility requirements for championship events in
Appeal to Council.
NCAA Press Release regarding Council decision. The Council placed