Published November 13, 2012 - 2:44pm
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Last month the NCAA replaced its classic “major and secondary” penalty structure with a “four-tier violation hierarchy” and an expanded infractions committee. These reforms are designed to reinvigorate the NCAA’s diminishing legitimacy in the wake of the Ohio State and Penn State scandals. And despite promises of greater efficiency and accountability, the NCAA’s actions are more likely to make college football more bureaucratic and expensive, to the detriment of coaches, players and fans.
The new four-tier system is reminiscent of the widely mocked color-coded “Homeland Security Advisory System” adopted by the federal government after the September 11 attacks. That system rated terrorism threats on a scale from “Severe” (red) to “Elevated” (yellow) and “Low” (green). Similarly, the new NCAA system ranks violations as “severe breach of conduct,” “significant breach of conduct,” “breach of conduct,” and “incidental issues.” This structure will be phased in through October 2013.
Concurrent with the new structure, the NCAA will also add members to its Committee on Infractions. The present committee has ten members; the reformed group may have up to 24. Cases will be heard by smaller panels of five to seven members. Oregon State President Ed Ray, who headed the NCAA committee that spearheaded the reforms, said the new structure would enable the infractions committee to closes cases in about half the time it currently takes, particularly in “less complicated cases.”
The reforms also place a greater emphasis on punishing head coaches. According to the NCAA, “[I]f a violation occurs, the head coach is presumed responsible, and if he or she can’t overcome that presumption, charges will be forthcoming.” Previously, the head coach was presumed only to have knowledge of the violation. According to Ray, the new rule is designed to preempt head coaches from trying to scapegoat assistants for significant violations: “[I]f the assistant goes rogue, then it’s partly the head coach’s fault and they need to be held accountable.”
Of course, in fabricating this new standard of “responsibility” for head coaches, the NCAA is shifting it away from the college administrators who make and enforce the rules. The NCAA’s message with these reforms is that the problem with college athletics is coaches who don’t obey authority, rather than the authority itself. While the NCAA enthusiastically touts its expanded enforcement structure, there doesn’t seem to be much introspection over the ridiculous burden placed on coaches and players by the rules in the first place.
What’s funny about all this is that while rising coaching salaries are a fiscal and philosophical concern for many schools—even in the football-crazed SEC—this new presumption of responsibility will only make coaching hires more expensive in the future. Coaches (and their agents) won’t just demand greater personal compensation in exchange for shouldering a higher regulatory burden; they’ll demand more “compliance” staff and greater protections for loyal assistants.
And while the NCAA claims the new system will streamline enforcement, anyone who has ever studied a government regulatory agency knows better. You don’t become more efficient by adding tiers of regulation, even if you simultaneously add staff to try and spread the burden. Put another way, the new tiers create an incentive to find even more violations, which in turn will overwhelm even the expanded infractions committee.
Oregon State’s Ray said, “[T]he current structure didn’t offer enough of a deterrent for individuals who believe the anticipated benefits and advantages resulting from premeditated rules violations outweigh the severity of punishment.” This is a myth peddled by all regulators looking to expand their fiefdoms. More enforcement doesn’t mean more deterrence. For one thing, most violations occur because of confusion over poorly written and inconsistently applied rules, not a malicious cost-benefit analysis by coaching staffs. This again speaks to the NCAA’s incessant efforts to demonize coaches.
A brief anecdote that helps explain the deterrence myth: Years ago I attended a panel discussion featuring the lawyer in charge of the Justice Department’s Antitrust Division. He bragged about how his office imposed record fines on antitrust violators during every year of his tenure. He said this proved deterrence works. Another lawyer in the crowd pointed out this was illogical: If the fines were deterring violators, why were they constantly going up? The DOJ lawyer rationalized that the increase in fines somehow mirrored a decrease in undetected violations—that is, the more punishment he handed out, the more other companies got the message and obeyed the law.
The NCAA is peddling a similar theory here. If it expands the volume of infractions cases and hands out more punishments every year, that will somehow keep more schools in line. There’s no way to quantify that, of course, but that’s not the point. The NCAA will appear more effective simply by being more proactive.
Let’s recall the recent penalties against Penn State which violated every traditional interpretation of the NCAA rulebook. It was a purely capricious act designed to capitalize on the public’s moral outrage over the Jerry Sandusky affair. Unfortunately for the NCAA, a large segment of the media and the public saw the Penn State sanctions for what they were—a bureaucratic power grab. In a sense, then, these new reforms are meant to undo some of that public relations damage. The NCAA can now talk about its renewed dedication to due process instead of continuing to defend its prior misguided decisions.
It’s an obvious bait-and-switch. The whole point of adding tiers and committee members is to make the enforcement process more arbitrary. Even the NCAA acknowledge sanctions will still be “customizable according to the severity of the violation,” which with a four-tier scale leaves a lot of room for individual interpretation, especially with different panels hearing different cases. Much like the disjointed federal court system, you’ll end up with different sets of penalties for similar-sounding violations—which, of course, is just business as usual for the NCAA.
There’s a certain sense of desperation here. As far as the college football community is concerned, the NCAA has never been less relevant. The conferences and the television networks hold the bulk of the power, especially with the new, non-NCAA playoff coming. At a certain point, the powers will revolt against a system that goes out of its way to look for violations and punish prominent schools. We’ve already seen the impact on the Big Ten this year with Ohio State and Penn State. Nobody outside the NCAA’s offices wants a full-scale playoff where the four best teams are deemed ineligible.
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