Changes Are Not Enough: Problems Persist with NCAA\u27s Adjudicative Policy

Recently, the critical eye of the public has focused on the adjudicative and enforcement policy of the National Collegiate Athletic Association (NCAA). Social media sites serve as a testament to the rampant shock and confusion that the general population has harbored with regard to the enforcement and adjudication process on the heels of recent, high-profile cases. Witnessing verified sports reporters and outlets refer to the NCAA as powerless or questioning its purpose or existence altogether is evidence of the NCAA’s trying times in the court of public opinion. On the one hand, and rightfully so, one might think that this disappointment stems simply from crazed fandom—crazy Notre Dame fans just wanted their way and their wins, or die-hard Duke fans just wanted to see UNC punished. However, the disappointment is justified, especially when comparing the NCAA’s adjudicative process to that of traditional administrative law. The Commission on College Basketball recognized the gravity of the adjudicative process’s shortcomings when it issued its “Report and Recommendations to Address the Issues Facing Collegiate Basketball” (the “Commission Report”) as a response to the bribery criminal cases, federal indictments, and FBI investigation. The NCAA responded with “swift action” after the report was published. By early August 2018, the NCAA broadcasted its “commit[ment] to change.” It promised to “tak[e] action” to bring in “outside voices,” through the use of “independent investigators and decision-makers to enforce rules.” These new structures and processes promised in the NCAA’s August 2018 commitment to change went into effect a year later. The NCAA has made steps in the correct direction with the changes recently put into action. However, this Note argues that both the Commission Report and the NCAA’s resulting commitment to change (and now-implemented changes) do not go far enough to improve the state of the NCAA’s enforcement and adjudicative process. Part I of this Note addresses where the status of the NCAA adjudicative process “was”—best evidenced through the infractions hearings of the recent headline cases at the University of North Carolina and University of Notre Dame. Part II addresses how the NCAA’s historical adjudicative process compares with traditional administrative law processes. The third and fourth Parts of this Note address the Commission Report and NCAA’s subsequent response to the report, along with criticisms of both. Part V raises issues with the adjudicative process that still linger even after these calls for change and responses are implemented. It also addresses potential challenges to these critiques. This Note concludes by considering more generally why this criticism matters