Main Topics:

• Guidelines for Allegations
• Failure to Cooperate
• Lack of Institutional Control
• Failure to Monitor

To provide clarity around some of the most serious infractions within the Association, the NCAA has developed a clear outline of specific guidelines the enforcement staff considers when determining whether to bring allegations for three serious types of conduct — failure to cooperate, lack of institutional control and failure to monitor.[1]

The guidelines take existing practices and guidance given in educational materials and codify them into one accessible document agreed upon by the membership.

The enforcement staff developed the document after members asked for clarity and counsel in how the enforcement staff brings allegations in these categories. Members can use the guidance to help understand what factors will be considered when any of the three allegations may be charged and to make informed decisions about athletics operations.

The guidelines consolidate various sources of authority into a single, central location and do not change the enforcement staff’s authority or the factors staff consider when contemplating these allegations.

Developed with significant input from members, the guidelines were reviewed by membership groups including the Division I Council, the Division I Committee on Infractions and the Division I Infractions Process Council (a group composed of representatives of the membership to review and recommend improvements to the infractions process) and approved by the Division I Board of Directors.

Guidelines for Allegations

When determining whether there is credible and sufficient information (direct or circumstantial) that reasonably demonstrates a violation of NCAA legislation occurred (Bylaw 19.7.1), the enforcement staff must (a) use only attributable information pursuant to Bylaw 19.7.6.5 and (b) evaluate relevant information in a fair and objective manner. Additionally, the enforcement staff shall presume violations occurred pursuant to Bylaw 19.7.3 and may infer support for or admissions to violations pursuant to Bylaw 19.7.5. 

Decisions on whether to bring allegations are made on a case-by-case basis. In exercising its discretion to bring or not bring an allegation, the enforcement staff should also review relevant bylaw interpretations and prior similar cases as appropriate. Case-specific interpretations are addressed in Division I Enforcement Internal Operating Procedure 2-2. 

Finally, failure to cooperate, lack of institutional control and failure to monitor are among the most serious allegations. Accordingly, the following are general guidelines the enforcement staff will consider when determining whether to bring the identified allegations.[2]

Failure to Cooperate

Failure to cooperate by a prospective or enrolled student-athlete or a current or former institutional staff member (e.g., coach, professor, tutor, teaching assistant, student manager, student trainer, etc.) may include, but is not limited to, the following:

1. Refusal to furnish information. Unless there are extenuating circumstances that would prevent an individual's participation in an interview and/or provision of requested information, the enforcement staff will allege a violation of Bylaw 19.2.2-(b) when one or more of the following factors exist:
   1. There is a nexus between the information requested and the underlying alleged violation(s);
   2. An individual's agreement to interview or produce requested information is untimely; or 
   3. The failure or refusal to interview or produce requested information hinders the ability to discover pertinent information, slows the timely progress of the matter or otherwise negatively impacts efforts to conduct a thorough investigation.
2. Knowingly providing the NCAA or the individual's institution false or misleading information. Unless extenuating circumstances exist, the enforcement staff will allege a violation of Bylaw 19.2.2-(c) when an individual provides false or misleading information during an investigation and when one or more of the following factors exist:
   1. There is a nexus between the provision of false or misleading information and the underlying alleged violation;
   2. There is more than a minimal lapse in time between the provision of false or misleading information and any later corrected statement;
   3. Any later corrected statement was secured by the enforcement staff or the institution, rather than being volunteered by the interviewee; or
   4. The alleged false or misleading information hinders the ability to discover pertinent information, slows the timely progress of the matter or otherwise negatively impacts efforts to conduct a thorough investigation.

Additionally, unless extenuating circumstances exist, the enforcement staff will allege a violation of Bylaw 19.2.2 when an individual attempts to influence others to refuse to provide information and/or to provide false or misleading information to the enforcement staff and/or institution, particularly when the individual exercises some degree of oversight or authority over the other individual (e.g., a coach influencing a student-athlete to report false or misleading information).

Pursuant to Bylaw 19.2.1, current and former institutional staff members have an affirmative obligation to cooperate with NCAA investigations. Where conduct giving rise to a Bylaw 19.2.2 allegation occurred while the involved individual was not employed at the institution where the underlying alleged violations occurred, the enforcement staff will not attach the failure to cooperate allegation to that institution. Instead, the enforcement staff will issue a separate, post-separation notice of allegations and any resulting show-cause order would apply to NCAA member institutions.[3]

Pursuant to Bylaw 19.1.2-(c), failing to cooperate is presumed to be a Level I violation. In rare situations based on individual facts of a case, the enforcement staff may exercise its discretion to allege a failure to cooperate as a Level II violation.

Lack of Institutional Control

The enforcement staff does not assume that an institution violated the NCAA Principle of Institutional Control when one or more Level I or II violations may have occurred. Instead, consistent with guidance from the membership, the enforcement staff takes a common-sense approach in considering the nature and scope of the violation(s) in a case, together with the institution's specific efforts to create and maintain a positive culture of compliance. Where the institution did not have a structure in place to create a culture of compliance, or where there was a breakdown in that structure, a lack of institutional control allegation may be appropriate.

Factors indicating institutional control include but are not limited to those outlined below. Generally, it is necessary to determine whether an institution's efforts to comply with all applicable rules and regulations of the Association were (a) in place at the time the alleged violation(s) occurred; (b) established to deter violations and not merely to discover their existence after they occurred; and (c) adequately promoted, monitored and enforced.

1. Promotion of a culture of compliance – The institution demonstrated by words and actions that compliance with NCAA legislation was an obligation shared by all athletics staff members, student-athletes and others who interact with the athletics program (including institutional staff members, representatives of athletics interests and third parties). This includes the institution clearly communicating that any individual involved in its intercollegiate athletics program (1) had an obligation to report perceived or potential violations of NCAA legislation and (2) could do so without fear of reprisal.
2. Oversight – The leadership of the athletics programs at the institution (e.g., director of athletics, faculty athletics representative, senior athletics compliance administrator) was knowledgeable about the content and operation of the athletics department's compliance program and exercised oversight with respect to its implementation and/or effectiveness.
3. Policies and procedures – The institution established reasonable written policies and procedures to effectively deter and prevent violations and detect in a timely manner any violations that occur.[4] The institution communicated and evaluated the policies and procedures on a regular basis and made them readily available to all staff with athletics compliance responsibilities (e.g., athletics department staff, enrollment management staff and financial aid staff).
4. Education and training – The institution took reasonable steps to provide regular and effective rules education by communicating applicable legislation, policies, procedures and other aspects of the athletics department compliance program to all student-athletes, institutional staff members and third parties who interact with the athletics department.
5. Due diligence in delegating authority – The institution delegated authority to athletics compliance staff members who were appropriately supported and empowered to fulfill their obligation of administering an effective and ethical compliance program. The institution also ensured that the compliance staff was appropriately educated and trained to perform its obligations at a high level.[5]
6. Program monitoring and review – Pursuant to its established policies and procedures, the institution monitored its athletics program for compliance with NCAA legislation. The institution heightened its monitoring of individuals who were known to have engaged in prior noncompliant conduct.
7. Enforcement, response and prevention of reoccurrence – The institution (1) consistently promoted, investigated (in consultation with the enforcement staff for potential Level I and/or II violations) and enforced NCAA legislation as well as conference, campus, department and other applicable policies; (2) took swift and appropriate corrective action when noncompliance occurred, including reporting to the NCAA (and when appropriate, to the institution's conference office) any instance of noncompliance with NCAA legislation; and (3) took reasonable steps to prevent further similar noncompliant conduct.
8. Risk assessment and modification – The institution established a system and periodically conducted assessments to determine risks relating to NCAA compliance matters and then implemented controls to mitigate the identified risks. The institution also (1) used an entity outside the athletics department to conduct regular and periodic reviews of athletics operations and (2) reviewed and implemented reasonable recommendations of the outside entity and/or implemented other reasonable remedies or corrective action identified by the institution. 

Failure to Monitor

An institution's obligation to monitor extends beyond its athletics compliance office. Even as a shared responsibility across an institution, the enforcement staff understands that universal monitoring of every NCAA rule presents a very practical or difficult challenge. Accordingly, the enforcement staff will not assume that an institution violated the NCAA Principle of Rules Compliance when one or more violations may have occurred. In fact, effective compliance and monitoring systems are expected to detect violations, and the enforcement staff will not consider a failure to monitor allegation based only on isolated Level III violations. Instead, consistent with guidance from the membership, the enforcement staff will take a common-sense approach in considering an institution's specific efforts to monitor individuals and operations consistent with the NCAA constitution and bylaws.

Factors indicating satisfactory monitoring include but are not limited to the following:

1. Policies and procedures – The institution established reasonable written policies and procedures to effectively deter and prevent violations and detect in a timely manner any violations that occur.[6] The institution communicated and evaluated the policies and procedures on a regular basis and made them readily available to all staff with athletics compliance responsibilities (e.g., athletics department staff, enrollment management staff and financial aid staff).
2. Education and training – The institution took reasonable steps to provide regular and effective rules education by communicating applicable legislation, policies, procedures and other aspects of the athletics department compliance program to all student-athletes, institutional staff members and third parties who interact with the athletics department.
3. Program monitoring and review – Pursuant to its established policies and procedures, the institution monitored its athletics program for compliance with NCAA legislation. The institution heightened its monitoring of individuals who were known to have engaged in prior noncompliant conduct.
4. Enforcement, response and prevention of reoccurrence – The institution (1) consistently promoted, investigated (in consultation with the enforcement staff for potential Level I and/or II violations) and enforced NCAA legislation as well as conference, campus, department and other applicable policies; (2) took swift and appropriate action when noncompliance occurred, including reporting to the NCAA (and when appropriate, to the institution's conference office) any instance of noncompliance with NCAA legislation; and (3) took reasonable steps to prevent further similar noncompliant conduct.

The enforcement staff will also consider decisions of the Committee on Infractions, legislation education materials, other related factors that may inform on an institution's monitoring efforts and applicable National Association of Athletics Compliance (NAAC) reasonable standards in determining whether it believes an institution satisfied its obligation to monitor. If the enforcement staff believes a failure to monitor allegation is appropriate, the allegation will identify the specific context of the types of behavior(s) it believes were monitored insufficiently.