Sep 3rd, 2021 |
55: NCAA v NC State: A Due Process Train Wreck
The NCAA’s infractions and enforcement action against NC State arising from the basketball-related criminal cases in the Southern District of New York makes a mockery of basic principles of due process. From its inception, the NCAA Committee on Infractions (COI) relied upon newly created investigative and adjudicatory principles adopted in August 2018 by the NCAA’s Commission on College Basketball (CCB) recommendations. The CCB never intended these new tools to be utilized in the “old” COI process. Instead, the CCB recommended that these tools be available only to independent adjudicators in high-stakes NCAA infractions cases. Indeed, the very purpose of the CCB’s recommendations for a fundamental overhaul of the old infractions system to include a new, separate, independent track for adjudications of high-stakes cases was to mitigate obvious conflicts of interests in the old COI process. NCAA insiders control the old process, including the COI pool of adjudicators and in-house NCAA enforcement staff. In the NC State case, the NCAA ran the entire case through the old process while relying on the evidentiary shortcuts intended for the new process. Then, just a week before a COI panel was projected to hear the case, the COI administrator responsible for managing all infractions cases arising from the basketball-related criminal cases referred the NC State case to the new, ostensibly independent process. NC State reluctantly acceded to the referral but protested substantial due process irregularities. This episode provides a timeline of relevant events in the NC State case, from the beginning of the FBI’s investigation in 2015 on the criminal side, through the NCAA infractions process, and a hearing conducted last month by an Independent Accountability Resolution Panel (IARP). The NC State case is the first-ever to be heard by an IARP. The panel will issue a public opinion at some point. This infractions case has important implications beyond the due process concerns raised by NC State. The NC State case was substantially complete before (1) the US Supreme Court’s Alston decision; (2) the NCAA’s failed attempts in Congress to obtain federal protections and immunities from liability or scrutiny in its exercise of regulatory authority; and (3) the NCAA’s self-inflicted name, image, and likeness debacle. The predicate for the entire NCAA infraction and enforcement process is the principle of amateurism. That principle is now in existential jeopardy. The NC State decision will provide important insight into how the NCAA views the viability of amateurism and whether it can use amateurism as the basis for penalizing alleged violations of amateurism-based NCAA rules.