Law and Basketball: What will happen with the new review process for NCAA Infractions?
Law continues to be increasingly present in college sports, especially with the NCAA. While the attention has been on the cancellation of the March Madness college basketball tournament due to COVID-19 concerns, the NCAA is busy dealing with other matters, iincluding finding itself moving into uncharted territory in compliance and enforcement.
On March 4, the NCAA announced its Independent Accountability Review Process would, for the first time, resolve an infractions case – one involving the University of Memphis men’s basketball team.
Per the NCAA website, “the Independent Resolution Panel reviews the allegations issued by the Complex Case Unit and the school’s response to those allegations. It then conducts a hearing, decides whether violations occurred and prescribes penalties. The panel consists of 15 members with legal, higher education and/or sports backgrounds. Once a case is referred to the IARP, a hearing panel consisting of five Independent Resolution Panel members is generated. Decisions issued by the Independent Resolution Panel are final and are not subject to appeal or further review.”
The NCAA launched its Independent Accountability Resolution Process in 2019 as a result of the Commission on College Basketball, a group created by NCAA leadership and chaired by former Secretary of State Condoleezza Rice, as a response to the 2017 federal investigation into fraud in college basketball recruiting. The IARP handles a select numbercomplex infractions cases to help minimize perceived conflicts of interest.
“The NCAA no longer has the credibility to carry out this function” wrote Rice in 2018. “Universities and their employees need to be compelled to cooperate by agreeing in advance to do so and they should be punished if they don’t.”
Karl Benson, former member of the NCAA Tournament Selection Committee and retired Sun Belt conference commissioner, said this type of review process is intended to be more “neutral” and “impartial.”
The University of Memphis case will be IARP’s first review of an infractions case. Whether they will levy harsh precedent, or carefully weigh the nuances of the case and issue softer penalties is yet to be determined. Sports reporters with insight into the NCAA believe it will be the former.
Either the school or the NCAA can request a case be referred to the IARP, which then begins with the NCAA’s 5-member Infractions Referral Committee (IRC) taking the case into the independent process. These committee members are mostly affiliated with the NCAA or member schools. The case then goes to the 16-member “Complex Case Unit” (CCU), whose members are independent of the NCAA (multiple members are attorneys from Berryman Prime and Krieg DeVault). The CCU has certain powers in the investigation, including granting witnesses limited immunity from potential NCAA sanctions. Following the CCU’s investigation, five members of the 15-member “Independent Resolution Panel” (IRP) review and rule on the case. As noted by Michael McCann, legal expert for Sports Illustrated, the IRP members “are described as having expertise in ‘legal, higher education and/or sports.’ These members aren’t employed by the NCAA, though the NCAA pays them $5,000 if they are assigned to a case plus an additional $5,000 per year for being on the IRP.” The panel’s roster, posted on their website, has only one member from an NCAA member institution; most are lawyers from large and medium law firm tracks, such as sports lawyers and arbitrators from Foley & Lardner, Dechert, MG+M Law, and JAMS.
The panel authors a written decision, which must be unanimous. McCann notes the five IRP members reviewing the University of Memphis case will hold hearings and review the evidence provided by the CCU. According to McCann, “IRP procedures indicate that the hearing panel isn’t bound by prior NCAA infractions cases. To be precise, those cases ‘shall have no precedential value.’” Notably, the IARP’s final ruling leaves the university the option to sue the NCAA if it finds fault in the process.
The University of Memphis case was the dominant story at the outset of this year’s college basketball season. Top recruit James Wiseman was ruled ineligible due to his mother accepting $11,500 from coach Penny Hardaway in 2017 to cover moving expenses to Memphis when Hardaway was a high school coach. However, Hardaway donated one million dollars in 2008 to the University of Memphis, thus the NCAA considers him a booster for the school. In 2018, the university hired Hardaway to be its coach. In 2019, Wiseman committed to the university.
The NCAA called this an improper benefit, although the circumstances were functionally independent of Wiseman’s college recruitment, which took place before Hardaway became coach at the university. Wiseman was found eligible for NCAA competition in May, but the NCAA then ruled him ineligible five months later at the cusp of the season. A judge granted a temporary restraining order against the NCAA and the university (enjoined nominally in the suit) and Wiseman then played the first three games of the season. However, the school chose to hold Wiseman out of play after the third game to show compliance with the NCAA in hopes of gaining leniency from the NCAA, not unlike past similar cases. Instead, the NCAA issued a twelve-game suspension for Wiseman and opened the current infractions case against the university. Wiseman chose to leave college to prepare for the NBA. Without Wiseman,
The IARP will likely weigh these issues, along with whether Hardaway, his administration, or the court was ultimately the reason for Wiseman having played. Precedent rarely favors court challenges to NCAA authority, despite numerous negative headlines around the NCAA currently facing legal controversy and Congressional investigations over student-athlete profiting off their personality rights and residual legal and quasi-legal ramifications of the federal investigation into pay-for play among shoe companies and some member schools.
College sports is increasingly full of subplots of legal intrigue. With this new process in place, college basketball and the law will continue to mix.
Peter Colin, Esq. is a technical client manager at Thomson Reuters