NCAA Violations Cases and the Hidden Rebuttal –

As part of their reorganization of the Division I Enforcement Model and Infringements Process, the NCAA Division I Transformation Committee and Infringements Process Committee are would have consider implementing a standard holding head coaches accountable for violations of NCAA rules by members of their staff, with no exceptions. Public details are sparse, but theoretically this would sound like a strict accountability standard, finding accountability despite lack of knowledge or any wrongdoing. This would be similar to the vicarious liability standard in tort law, which holds an employer liable for the actions of its employee committed in the course of employment.

If done, it would be a drastic change, but not necessarily in a visible way. NCAA Rules already guess head coaches are responsible for staff violations, but allow head coaches to rebut this presumption by showing that they: (1) monitor staff and (2) promote a compliant atmosphere. For example, in 2017, the Committee on Violations (COI) infamously held Rick Pitino, then head coach of the University of Louisville, vicariously liable for a staff member’s impermissible organization of strip dances. -tease and acts of prostitution for potential and current student-athletes. The COI presumed Pitino responsible without concluding that he knew of the activities. And he couldn’t overturn the presumption because his oversight was found to be insufficient. Pitino was suspended for five games.

A strict liability standard would eliminate the possibility of rebutting the presumption, but in practice the COI has effectively used this standard for several years. Specifically, since 2014, enforcement personnel have alleged more Level I or II violations of Rule than any other NCAA rule, with the COI reviewing more than 70 such allegations. And only once has a head coach successfully rebutted the presumption of liability for a staff member’s breach – former Wichita State baseball head coach Gene Stephenson in 2015.

However, the review of infringement cases since 2014 does not tell the whole story. Many head coaches successfully rebutted the presumption of liability during the investigation by law enforcement personnel, eliminating the allegation before the matter reached the COI. For example, COI handled a case in 2021 in which a Notre Dame assistant football coach violated NCAA recruiting rules. Yet enforcement staff did not charge then-head coach Brian Kelly with a violation of rule, meaning Kelly successfully rebutted the presumption that he was responsible for the violation of the assistant coach during the investigation of the enforcement staff. Thus, the public will never be aware of its monitoring or the promotion of a compliant atmosphere. Strict liability would mean that there would be no more (hidden) rebuttals of liability as part of the enforcement process.

This lack of transparency regarding the rebuttal during the line staff investigation is problematic. If the NCAA comes out against strict liability, it should, as I suggested in a recent Nebraska Law Review article, demand the publication of information on how the head coach rebutted the presumption of responsibility. This information would be invaluable to other head coaches and athletic college members.

We will see what changes, if any, the Transformation Process and Violations Committees will implement. Strict liability or not, improvement is needed.

Josh Lens, a former college athletics attorney and administrator, is an assistant professor of recreation and sports management at the University of Arkansas.

Denise W. Whigham