Q&A with NCAA enforcement VP while awaiting Louisville investigation update
NCAA bylaws prohibit officials from discussing ongoing investigations, but NCAA VP Jonathan Duncan answered general questions about the organizations investigative process.
LOUISVILLE, Ky. (WDRB) – You've have been waiting and waiting and waiting for the latest information about the NCAA investigation into the University of Louisville basketball program, the one that prompted the school to remove itself from the 2016 Atlantic Coast Conference and NCAA tournaments.
There is little new information on that, mostly because the NCAA does not discuss specific cases while the investigation is ongoing. The organization has never done that.
But Jonathan Duncan, the NCAA’s vice president of enforcement, did agree to speak to Rick Bozich and Tom Lane of WDRB Sports in general terms about how the investigative process works.
What follows is a slightly edited version of Duncan’s 34-minute telephone interview with WDRB from Duncan’s office Tuesday morning.
WDRB: What do you believe are the biggest misconceptions the average college fan might have about the NCAA and the job the enforcement staff does?
DUNCAN: “I think a couple of the biggest misconceptions that the average college fan would have is that the enforcement staff is responsible for drafting the underlying bylaws. In fact, those belong to the member colleges and universities that make up the NCAA.
“Those schools hand the bylaws to us and ask us to enforce them.
“I think another misconception is that we are also responsible for fashioning penalties at the back end of a case. That is also not true.
“In fact, those penalties are determined by the representatives of the membership through the Committee on Infractions – presidents, commissioners, former coaches, compliance professionals. That group determines whether a violation ultimately occurred and what the penalties are.
“A lot of people think that’s enforcement staff function, and it’s not.”
WDRB: How does it complicate things for you and your staff when cases are played out in the public and in the media?
DUNCAN: “The investigative process is designed to be confidential for the protection of everybody involved. When things are played out in the media, that adds obviously pressure and scrutiny that wouldn’t otherwise be there. It does have, sometimes, a chilling effect on individuals that have knowledge and are not inclined to participate.
“It does also provide information to individuals with knowledge about what could be out there and can have the effect of compromising the integrity of the investigation when things are reported publicly before we’re allowed to confront individuals privately with information that they may not know or that they may not know that we have.”
WDRB: Do you feel that the average fan has a feeling that it’s kind of Us against Them, it’s our school against the NCAA? Is that something that you try to let them know is not really the case?
DUNCAN: “Yes, I believe that perception, misconception, is out there. And I would hope to disabuse people of the notion that the enforcement staff, specifically, or the NCAA, generally, is against any particular institution or program or coach.
“That is not the case. We are trying to protect the game. We are trying to protect those schools that are compliant with the NCAA constitution and bylaws and stand alongside member institutions and coaches in a joint cooperative effort to keep the game pure.”
WDRB: The NCAA implemented changes in 2013, the biggest being the change from violations being either major or secondary into a four-level system. Has that helped things?
DUNCAN: “I believe it has. You’re referring to reforms from the enforcement-working group, also called EWG, which was a member-led reform to article 19, which is the legislative guidance for the enforcement for the infractions process.
“It went from two giant buckets called major and secondary to more refined, narrower categories -- one, two, three and four -- one being the most severe and four being the least severe. It allows us to operate with a finer instrument to paint with a finer point and recognize nuances between and among violations, rather than lumping things together and just calling them major.
“It allows our staff and institutions, many involved coaches or third parties, to know with more detail what the allegations are, what the level of the allegations might be, and what the ultimate penalties could be.
“Yes, I think now three years into the enforcement working group, by all accounts, they have had the desired effect and been successful.”
WDRB: In any particular case, how much weight do you give to schools that have already self-imposed penalties?
DUNCAN: “That’s a factor that is relevant to fashioning penalties, and so that is a function of the Committee on Infractions. If a school, any school, has self-imposed self-prescribed penalties, that does not operate to cure the underlying violations. Neither does it affect the level of the underlying violations. So it’s not something that the enforcement staff takes into account during an investigation or when forming allegations.
“It is something, however, that the Committee on Infractions takes into account when fashioning penalties. So that’s a question best directed to the committee members.”
WDRB: People would benefit from an explanation of how the process goes from A, the starting point, to Z, the end point. Can you describe a brief rundown of how it works?
DUNCAN: “The process really begins with the member institutions, the colleges and universities that make up the NCAA proposing and ultimately adopting bylaws and handing them to us to enforce.
“After that point we get information from many different sources, all day, every day, about potential violations. We have to be very discerning about what information we choose to follow up, what warrants further investigation and perhaps things that don’t, either because they’re not credible or they’re not substantiated or even if the information is true, it may not be a violation.
“We’ve got an intake process. We look at the information. If it warrants further review, we’ll assign an investigative team to it. That team will work together as closely as possible with the involved institution and the potentially involved coaches and third parties and find out what happened.
“A lot of people think that we decide at that point what allegations we want to bring and then build a case around those allegations. That is not the case.
“If there are violations substantiated, we bring them. If they are not substantiated, we will move on. We’ve got plenty of other work to do.
“So we work together with the institution, find out what happened in communication with all involved parties. As best we can apply the facts, as we understand them to the bylaws as we understand them. If we believe that allegations are appropriate, we write those down in a formal process and provide notice of those allegations to anybody that is involved.
“They then have an opportunity to respond in writing through counsel and normally at an in-person hearing of the Committee on Infractions. Everybody has an opportunity to share whatever facts or positions they want to share. Ultimately the Committee on Infractions, not the enforcement staff, the Committee on Infractions at the end of a hearing will decide if violations occurred and if so what the penalties are.
“Then that decision itself is subject to review by another member-led panel, called the Infractions Appeal Committee. So there are multiple layers of process to make sure that enforcement staff allegations are right. Those are not rubber-stamp type reviews. Those are bonafide member reviews of the facts, the allegations, the levels and the penalties.”
WDRB: I’m sure the process varies from case to case, but generally, is there time frame that things go from Point A to Point Z?
DUNCAN: “You’re right that every case varies. Those cases that end up in front of the Committee on Infractions, those investigations tend to take less than a year but a number of months.
“What a lot of people, a lot of fans and a lot of member institutions, don’t understand is that we have a lot of investigations going at any given time where either the information isn’t substantiated or individuals who have information are unwilling to go on the record or the information turns out not to be a violation or any other number of scenarios.
“That leads to the closing of that case without every presenting it to the Committee on Infractions. It’s not unusual for those cases to be opened, investigated and closed in a matter of days or weeks. It’s just that nobody knows about those cases because they’re not ultimately adjudicated by the committee or reported publicly.
WDRB: How large is the enforcement staff? How many people do you have?
DUNCAN: “We’ve got a total staff of 57.”
WDRB: If somebody is assigned to a case, do they work that case from the beginning until it concludes, or are they working on a number of cases at a time?
DUNCAN: “Each of our investigators has more than one case at a time. They’re responsible for however many cases are on their plate. But they don’t work individually. We work as teams. I think it’s better that way. So we might have a couple of investigators. We also might have some subject matter experts in the sport that is involved, sometimes football, sometimes basketball, sometimes other sports.
“It’s a very collaborative process internally. It’s also probably more collaborative process with member institutions than people believe. The stories that sometimes make headlines appear to be very combative and adversarial. Most cases are not resolved that way. Most cases are a cooperative effort by all parties to find out what happened and to get to the truth.”
WDRB: Is it generally correct that currently-eligible athletes, coaches and administrators are compelled to speak to the NCAA, but former players, boosters, former coaches don’t have to speak if they choose not to?
DUNCAN: “It’s less about want to and more about the authority of the NCAA to prescribe penalties if somebody fails or refuses to cooperate. The only individuals or institutions that are officially subject to the NCAA infractions process are current and former staff members and student athletes and prospective student athletes.
“We hope that third parties and other individuals with personal knowledge of potential violations will cooperate. If they choose not to, there is not an enforcement mechanism that would penalize that choice like there is for individuals who are presently inside the membership or who used to work at a member institution.”
WDRB: So with athletes that are currently eligible, if they’re asked, they need to interview (with investigators)?
DUNCAN: “That’s correct, yes.”
WDRB: With people who are no longer working at a school, how many times do you ask them? Once? Or is a negotiation where you try to get people to talk? How does that work?
DUNCAN: “We’ll ask more than once. Our interest is in getting to the truth, not in necessarily supporting an allegation. We have to find information that refutes a potential allegation as well. Third parties often have that information. We will ask and try to work with them to secure their cooperation.
“I wouldn’t say that we negotiate with them. But we will certainly try to be sensitive to whatever requests they’ve got or needs they’ve got in order to secure the information they’ve got and fold it into our analysis.
“The legislation, by the way, that we’re talking about is Article 10 Bylaw 10.1. That’s the bylaw that defines exactly who is subject to the responsibility to an investigation. There is also a similar provision in Bylaw 19.2.3.”
WDRB: Every school, fan base or team thinks their case is the most important case, and they want a resolution. What do you say to people that become frustrated and ask how much longer will this take?
DUNCAN: “I say that I understand that. I really do. And one of the things that we have tried very hard to do in the last three years is to move cases along more quickly, yet without sacrificing accuracy or collaboration.
“I understand that it is frustrating and that it is hard for programs and student athletes and prospective student athletes and coaches and institutions to have a case that goes on for months and over a year. We are sensitive to that. We’re working as quickly as we can.
“I would also say that sometimes the delays are for reasons not attributed to the enforcement staff. There are a lot of parties, a lot of counsel, a lot of facts involved in these cases. Sometimes it’s just genuinely, sincerely difficult to do an interview when you have to juggle 12 or 15 calendars.
“Sometimes also late in an investigation, in any case, it happens a lot, we get information that we wish that we had had earlier in the case, and it tends to prolong things. I don’t mean to make excuses. I recognize the challenges when a case is extended over a period of months. We try to work together with institutions and involved parties to make sure that that doesn’t happen.
“I would also say that part of the length has to do with procedural safeguards at the end of the process to make sure that no school and no individual is deprived of an opportunity to share anything that they want to share or is deprived of a meaningful opportunity to present in front of the Committee on Infractions or the Infractions Appeals Committee.
“Ironically, some of the length of these cases is the result of the safeguards that are designed to protect those who may be at risk.”
WDRB: You mentioned earlier the NCAA gets tips or information. Is it 20 per week or sometimes only a few a weeks? How would you characterize it?
DUNCAN: “I’d characterize it as more than 500 a year.”
WDRB: And they come in e-mails, phone calls, letters? How do people share information with the NCAA?
DUNCAN: “All of the above. I don’t mean to spread it out over a year, it’s just that some weeks are busier than others. We get text messages. We get e-mails. We get handwritten letters without self-identifying marks. We get telephone calls.
“But we’re also not entirely reactive. We have a more proactive, strategic arm of enforcement. We call it development. That staff, they’re tasked with putting the enforcement department in a position to learn about violations that might not otherwise be reported.
“It’s nothing mysterious. It’s nothing sneaky. But these are staff members who have relationships in the industry in intercollegiate athletics and get information from sources. Sometimes the challenge then is just to corroborate on the record what off the record sources provide to us.”
WDRB: Are those the people who attend AAU basketball tournaments and camps?
DUNCAN: “Yes, sir. They are out in the open. Everybody knows who they are and why they’re there. That’s who I’m referring to. We have the equivalent in football.”
WDRB: The 500 or so tips, that does not include self-reported violations?
DUNCAN: “No. I think that number is just tips from competitors down the road or jilted girlfriends.”
WDRB: Is it typically one school wanting the NCAA to look into something another school might have done?
DUNCAN: “We get those. We get disenfranchised boosters. We get parents of student athletes who transfer away or aren’t recruited or don’t get the playing time that they like. We always have to take that into account. We take that very seriously, the credibility and the perspective and the interest of the person who is providing information to us.
“While we want to receive that information and analyze it, we also need to be aware that some might be advancing their own interests. We sometimes hear that people are reporting information to us to advance their own interests and try to spook a kid to try to get him or her to jump from one school to another or to jump to a professional league. We want to be very careful not to be pawns in somebody else’s scheme. So we are very discerning consumers of information, and we’ve got a pretty sophisticated process for how we look at it and how we analyze it.”
WDRB: Who ultimately decides which allegations are investigated and which one won’t be? Is there a committee of investigators?
DUNCAN: “We decide that as a leadership team, not only what should be investigated and what shouldn’t, but whether things should perhaps go down the level one, level two major path … or whether perhaps the information merits review but perhaps for a secondary level three, which is a separate process.
“But the leadership team together, we meet, we talk about those and we make a decision. It’s no one individual who has that sort of authority.
“Having said that, everybody here has authority here to stop a case and say, ‘Look, it’s not substantiated. Or we have run out everything, and it didn’t happen. Or it happened, and it’s not a violation. So there are any number of places along an investigation or a case where we can close that. We don’t grieve that. We just move on to the next case, next pitch.”
WDRB: Frequently, when schools are under investigation, they retain outside counsel or advisers who help them navigate the process. What is the relationship between the investigative team and those people? Is there a sharing of information, an apprising of each other of where the process is?
DUNCAN: “Yeah, I think people would be surprised by the degree of communication and sharing and cooperation between our staff and representatives of institutions and involved individuals.
“We talk with those folks, all day, every day. As you know, there is a small number of firms, law firms, that are dedicated to this kind of work, and we enjoy good, professional, cooperative relationships with them. We know we’re going to see them later, not only in one case, but in another case, and sometimes we have multiple cases with the same law firm at the same time.
“The same is also true with individuals that bring into the infractions process their counsel from other contexts. We help them understand the process. We share information freely with them, we with them and them with us. We talk pretty candidly throughout the process about what the violations might be, what the supporting information and refuting information is, what the level is.
“We don’t want there to be any mystery or any surprise. It is more collaborative than most people would probably realize.”
WDRB: In terms of an individual case, at what point will media and fans know more specifics? When a school actually gets a letter of violations?
DUNCAN: “Sometimes that depends on whether a school is a public or private institution and, in turn, whether a school is subject to Open Records Laws or Blue Sky Laws or whatever state by state statutes govern public institutions there.
“For a private school, it could be that the first the public hears about a case is when it’s announced by the Committee of Infractions. That process is also governed by our Article 19 of the Division I manual.
“For a public institution, it could be much earlier if the media, local or otherwise, submits a Freedom of Information Act request or Open Records request. Schools comply with those. We don’t discourage that. In those cases, sometimes the public learns very early on.”
WDRB: Are there any other misperceptions about the enforcement staff?
DUNCAN: “There is another misperception about the enforcement staff or maybe two. One is the allegations are brought haphazardly. Another is that allegations are targeted at specific coaches or programs or regions or conferences. Neither of those is true.
“We have a lengthy and sophisticated quality control, a dedicated staff within our staff that helps us make sure that we bring allegations that are consistent with the bylaws and other similar cases that may have been alleged or processed in the past, or similar cases working through the process now.
“We do not target individual coaches or programs or conferences. Really, what we’re focused on is behaviors and those behaviors that member institutions believe most threaten the collegiate model or threaten the game.
“That may be at a high profile institution. It may be at a Division II school. It may be at a smaller school that very few people have heard of. I think the average fan would be very surprised, pleasantly surprised, at the rigor that we exhaust before we bring an allegation and the level of proof and the layers of review that we go through before we bring an allegation against an individual or an institution. It is substantial and it is designed to make sure that the enforcement staff brings allegations that are proper and that everybody is treated fairly along the way.
“One of the other misperceptions about the enforcement staff is that we miss a lot of violations that occur. The truth is we know a lot about a lot of violations that occur and can’t process them for one reason or another. By process I mean bring publicly to the Committee on Infractions.
“We’re aware of many violations and work to put ourselves in a position to have information on which we can rely in front of the Committee of Infractions.”
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