- Henry Gimenez, Partner, Lightfoot, Franklin & White
- Mike Glazier, Member, Bond Schoeneck & King
On Wednesday, LEAD1 Association (“LEAD1”) hosted its latest virtual panel to discuss some of the hot-button NCAA enforcement and compliance issues. The panel featured two of the top NCAA enforcement and compliance attorneys, Henry Gimenez (Partner at Lightfoot, Franklin & White), and Mike Glazier (Member at Bond, Schoeneck & King).
Glazier opened the panel by recounting the history behind the creation of the NCAA Independent Accountability Resolution Process (IARP). The IARP branches out of the Rice Commission’s recommendation that the NCAA create an independent investigative and adjudicative arm to address complicated and serious infractions cases. Before discussing specifics of the IARP, Glazier emphasized that a large majority of cases will still go through the traditional NCAA Division I Committee on Infractions hearing process with IARP reserved for only a unique set of cases. With this caveat in mind, Glazier explained the initial steps of the IARP.
The process starts with a referral request by either school representatives, NCAA Division I Committee on Infractions members, or NCAA enforcement staff. From there, the referral review committee analyzes the referral request and determines whether to take the case or send it back to the NCAA Division I Committee on Infractions. This analysis is guided by a number of factors including: major policy issues, which may impede upon core values and a commitment to the collegiate model, reliance on stale and incomplete facts, lack of acceptance of the core principles of self-governance, the scope, scale, and duration of the case, breaches of confidentiality, and any increased stakes in the case at issue. When making a referral request, the party making the request must not only cite at least one of these factors, but also give reasoning for why that factor applies to the case at issue.
At this time, Glazier and Gimenez both expressed the concern that, in cases of referral by NCAA Division I Committee on Infractions members, it may signal to institutions that there is an already pre-decided opinion on that case from the committee. That said, Glazier made it a point to remind those institutional members, that although there may be a feeling of bias, if the case stays within the traditional NCAA Division I Committee on Infractions process, there is the advantage of an opportunity to appeal, whereas, under the IARP there is no appeal process.
Glazier finished this discussion on the IARP by highlighting some of the current cases going through the IARP and noting that the IARP is still being developed procedurally. There is an expectation that the hearing process will “mimic” a traditional NCAA Division I Committee on Infractions hearing, but will not “mirror” it exactly, as the IARP will modify it to better suit this new use.
Gimenez then discussed updates on the NCAA’s athletics director “attestation of compliance” legislation. During this discussion, he emphasized the importance of focusing on documentation (as discussed at previous LEAD1 meetings). However, both panelists agree that as of now, there has not been a shift in focus on “attestation of compliance” from the enforcement staff. This being the case, Glazier advises that athletics directors, even with a background in compliance, should still confer with their compliance office staff in interpreting NCAA bylaws (as it would give them an added level of security in case there is an “attestation of compliance” issue).
Gimenez echoed this advice when discussing best practices for athletics departments with respect to managing internal NCAA investigation and student-athlete empowerment campaigns. On internal investigations, Gimenez made a point that administrators must remember to document and make sure information is properly secured for use in the investigation, and get compliance and any other appropriate office involved early in the process.
In addition, Gimenez identified several challenges that institutions face regarding the upcoming implementation of Name, Image, Likeness (NIL) legislation. To combat these challenges, Gimenez recommended including compliance staff on any internal task force or working group handling NIL issues, making clear what role each department has in enforcement of NIL policy, reviewing and revising agent tracking policy and procedures, understanding how coaches are currently utilizing the prospects of NIL legislation, and reviewing any intellectual property rights agreements (as they can be a significant portion of an athletics departments budget).
Lastly, there was a discussion on the potential one-time transfer rule, and the many concerns of tampering due to the money involved in collegiate athletics. To combat these concerns, Gimenez emphasized the importance of educating new coaches on the tampering rules and expectations from administrative staff.