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where we could stop. I do not know if that suggestion has actually been made. There have been suggestions about giving student-athletes property rights, or attempting to. I do not know if it could be done. Have you thought about that, or have your lawyers!
Mr. NEINAS. I am not an attorney, but the matter of property right has been raised. I think there are some inherent problems, if I understand what would occur if you gave someone a complete property right. I have always looked upon participation in intercollegiate athletics as a privilege more than a right.
I recognize there have been court cases involving both colleges and high schools which have more or less supported that idea. But I imagine if you were to extend the property right fully, it would make it difficult on the coach, for example. A coach must maintain discipline. be able to select who plays, when they play; no team can be successful without having discipline.
There are certain academic rules which are applied to make sure that the student athlete is making progress toward a degree and maintaining grades which may be in some instances more substantial than the student body in general. There are other restrictions upon the athlete which I think were passed in good conscience to maintain proper conduct and control of intercollegiate athletics. So if someone. and perhaps I do not understand the complete legal definition of what a property right is, but I think that it could lead to some very serious problems.
Mr. LUKEN. It could lead to every action and reaction between player and the coach, and the coach, the player, and the school being the subject of court action, would that summarize it?
Mr. NEINAS. That is right. And I am hopeful that the thrust of my basic suggestions will be, if adopted, of such nature that we would be deterring future court actions involving the NCAA and its membership.
Mr. LUKEN. What about antitrust legislation ? Have you considered that or has that been suggested to you?
Mr. NEINAS. No, sir.
Mr. LUKEN. All right. On the specifics then, you indicated at one point in your testimony that you believe-pages 6 and 7—that there should be a more cooperative approach between the NCAA and the school. I wonder if we could pursue that a little bit, so at least we would understand if you have some specific ideas about that.
If the NCAA begins to investigate a school, notifies the university, you suggested,
That it provide the chief executive officer of that institution the opportunity to appoint his own representative or committee to participate in a cooperative and parallel investigation with the NCAA.
If the school did proceed with that parallel investigation, could you explain what would happen? What would be the unwinding of that!
Mr. NEINAS. Yes, sir.
way you see fit.
Mr. NEINAS. All right. I think I can best illustrate that point by describing the Big Eight relationship with the University of Oklahoma.
In 1973, we uncovered what was a major violation involving their football program, and I reported to the president of the University of Oklahoma, Dr. Sharp, on April 1, 1973, what we had uncovered and indicated at that time that the conference was going to undertake a thorough investigation of that institution's athletic program.
Dr. Sharp, at that time, said that the institution would appoint an investigator that would investigate with the conference because he wanted also to find out what the problems were. He assured me that anyone who failed to cooperate with the conference in its investigation would be answerable personally to him.
One of the complaints, as I mentioned earlier, is that the NCAA current system delays processing of a case. In this instance, the conference and the university worked jointly. The conference investigator and the institutional investigator interviewed numerous witnesses at the same time so they both had the opportunity to question the same individual in the same setting. The result was that we processed the major case and rendered a decision by August 1973.
Mr. LUKEN. What was the result?
Mr. NEInAs. The University of Oklahoma was placed on probation for 2 years in the sport of football.
Mr. LUKEN. Are you suggesting just such a procedure for NCAA!
Mr. NEINAS. I would think, Congressman Luken, that most chief executive officers would welcome the opportunity to become involved in an investigation at its earlier stages. I think there is a tendency on the part of the NCAA to assume that the chief executive officer and the institution may try to cover up facts. I do not believe that.
I think the president would welcome the opportunity to become involved earlier, clean his house, if necessary, and get rid of the entire situation as soon as possible. I think it would make everyone happy to expedite the process.
Mr. LUKEN. Well, so you would recommend just such a procedure as you outlined in the previous example?
Mr. NEINAS. That is correct.
We have heard, and I cannot cite you chapter and verse—at one or more of these hearings—the complaint about this kind of investigation, even as the NCAA is now, as being too friendly at times; that the colleges, the presidents and the athletes are being lulled, sometimes, because they are being asked to investigate themselves. And there are no warnings of constitutional rights, and so on.
So that, even under the present circumstances, we have a situation where there is concern about the one under investigation being lulled into a situation and brought along the primrose path to a point of divulging information upon which prosecution and penalties are assessed. Is that a problem?
Mr. NEINAS. Well, let me explain to you
Mr. LUKEN. I am sure you considered it. I would like your testimoni
Mr. Neinas. The way the situation now works is, basically the NCAA files a preliminary inquiry, at which time it indicates they may have something. Then they file an official inquiry and go through their own investigative process. When they complete their investigation, basically when the NCAA has completed its investigation, then it submits a list of allegations to the accused institution. Then the institution is given a certain time frame in which to complete its investigation, and that is where it is supposed to divulge to the NCAA, what it uncovers by itself.
So obviously you are taking twice as much time, I would suggest. In other words, my point
Mr. LUKEN. But my point is that even that process, where the university belatedly is asked to investigate and turn itself in, has been cited as objectionable because they are asked to cooperate and then they get nailed.
Mr. NEINAS. Well, I think
Mr. LUKEN. It seems to me if they do it initially, that some complaint becomes more acute.
Mr. NEInAs. If they are in violation, they should expect a penalty.
What I am saying is that you would relieve the tension, expedite the processing, and create a better atmosphere if the institutions were involved earlier.
Now, no one is going to like the penalty.
Mr. LUKEN. But a joint investigation on the part of the accuser and the accused does have a rather unfamiliar sound to it.
Mr. NEINAS. I recognize that, but the NCAA is a voluntary service organization and it may be a strange animal, but I can only cite from my own personal experience with our conference, I think it has worked better; the institution fully recognizing the penalty may prevail in the end, than creating an adversary type condition between the organization to which you belong and the member of that organization.
Mr. LUKEN. OK. I would probably agree that under the proposal that you suggest, that the majority of cases would be worked out by that joint investigation and there would be a happier situation and everybody would be more satisfied. But in those cases where the NCAA and the university ultimately agree, there would be further opportunity for charges of the NCAA coming in and lulling the institution into a sense of security with even more coziness and more chicanery than is charged now because they are doing something jointly instead of at arm's length; right?
Mr. Neixas. To be honest with you, I have not heard of anyone recently being lulled by the NCAA in that particular situation.
The opportunity also would be made available to the institution during the hearing process to present witnesses now not allowed to participate in the hearing procedure. We would give that institution the opportunity to bring someone too in an attempt to clarify the conflicting testimony which was obtained by the NCAA investigator as opposed to that obtained by the institutional investigator.
Mr. LUKEN. I am interested in that suggestion, and my concluding comment is that I would be likely to depend upon you to make the decision as to what might improve NCAA procedures, since you are involved in the whole procedure, and you and other members of the NCAA know how it works. You would be more likely to know what would improve NCAA procedures than we Federal legislators would, and therefore I would certainly agree with the basic thrust of your testimony, being very leery of the Federal Government getting into the picture. Thank you very much.
. Mr. NEInAs. Thank you, sir. Mr. LUKEN. I yield back any further time, Mr. Chairman.
Mr. Moss. The Chair recognizes the gentleman from Ohio, Mr. Devine.
Mr. DEVINE. Thank you, Mr. Chairman.
Mr. DEVINE. If you know, do you generally reflect their views in your statement here today on the approach?
Mr. NEINAS. May I say that, Congressman Devine, when the Big Eight and the Missouri Valley were going to introduce the resolution which we did in January of 1977, the commissioners of those conferences that you mentioned indicated that they felt that their people would support that resolution if it were to be brought to the door of the convention. They did not have time to caucus with their people to put their name on as sponsorship, but they informed me that they would support it.
Mr. DEVINE. How about the other commissioners, of the Southwest Conference and Pacific Conference?
Mr. NEINAS. My recollection, sir, is that I believe nine conferences, seven other conferences, seven conferences other than the Big Eight and Missouri Valley indicated they would support that resolution.
I also mentioned in my testimony that the Collegiate Commissioners Association, of which both Mr. Duke and Mr. James are members, have questioned some of the due process procedures at our annual CCA meetings, at which time an NCAA representative attends. We try to talk over some of the problems in intercollegiate athletics.
Mr. DEVINE. How about Fred Jacoby of Mid-American, is he in that group!
Mr. NEINAS. Yes; he is.
Mr. Moss. I have a few questions but I would like to make an observation.
The question of constitutional grounds for this congressional action has been raised. At the time I received the petition from more than 70 Members of the House requesting I start an investigation, the first assignment I gave to the staff was the determination of the constitutional question.
We also went to the American Law Division of the Library of Congress, and the Chair wants it clearly on the record it is quite satisfied as to the constitutional authority of the Congress, particularly constitutional authority under the commercial clause, because we are talking here not only of the rights of institutions, but as it has evolved over recent years with the emergence of television as a major
factor in bringing sports to the American home. We are talking of the rights of a very large segment of the American public. We are talking about the power of any group to interfere with those rights, to say that you may not sue this institution because it has offended us.
So we have both the right and the responsibility to determine whether that offense has been of significance, whether the decision to impose a sanction has been arrived at after a procedure or process in keeping with our heritage.
Clearly, the record should indicate that in all instances that is not the case. There is always in the testimony of even the most friendly and sympathetic witness a concern over the lack of the kind of due process we are accustomed to traditionally as Americans.
Mr. Wunder. Mr. WUNDER. Thank you, Mr. Chairman. Mr. Neinas, I was very much interested in your conversation with Mr. Luken about the question of the property right. I have done quite a bit of research on this issue recentỈy. I find that there is since 1975 a Supreme Court case, Goss v. Lopez, that stands for the proposition that you cannot statutorily create a property right. That is what transpired in this case with respect to education. But I want to explore that with you for a minute because it is a serious matter.
As I take it from your testimony, the situation could develop where an athlete is recruited by a school and given a scholarship and the athlete, because of the lack of ability, the coach determines he lacks the ability to make the squad and drops him from the squad: if a property were legislated for that, then the coach would have to face probably, or possibly, challenge in the courts because he made a determination that this athlete lacked the ability to make his squad, and the athlete would come in and say, "I was the fastest in the 40,” things like that.
Is that the type of thing that you had reference to when you were discussing it with Mr. Luken?
Mr. NEINAS. No, not so much, Mr. Wunder, because the NCAA by law states that an athlete's grant-in-aid may not be graduated or canceled during the term of the award except for certain disciplinary or probationary type situations, at which time he is entitled to a hearing.
My thought was that an individual who may entertain thoughts of being a great professional athlete could say that the coach has worked against his best interest by not playing the position he wanted, by not playing him enough, by not giving him what the athlete thought was à fair opportunity.
Mr. WUNDER. OK. Now I see your point about the scholarship, but we are talking about the right to participate.
That is my point. You can't take the guy's scholarship away from him, but he doesn't stay on the squad because somebody else is better.
Mr. Moss. The committee does not have to recommend to the Congress that it take over control, but we can recommend that there be a requirement that any organization attempting to perform the many functions of the NCAA meet certain standards in its procedures. If they don't, then they would be subject to appropriate Federal action. Somehow there must be a guarantee of due process, and I think that you have gone a long way here today in pointing out areas where corrective action will