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The NCAA wants to make up its own subpoena power

For the same reason it wants anything else.

NCAA president Mark Emmert holds a press conference. Robert Deutsch-USA TODAY Sports. Banner Society illustration.

In 1948, the NCAA passed the “sanity code,” the first big national regulation on what colleges could give athletes. College sports were rather lawless before, but the sanity code said schools could only compensate players with scholarships and some meals.

The NCAA didn’t have an enforcement division at this time, though. The only thing it could do to punish a rule-breaking school was literally kick it out, which required a 23 vote. When the NCAA sent a questionnaire to schools in 1950, asking if they were abiding by the sanity code, seven schools were clear: they were definitely not following the code.

NCAA leaders tried to expel those seven schools — Maryland, Boston College, Villanova, The Citadel, VMI, Virginia Tech, and Virginia — but came up just short in the big vote. Midwestern and Western schools wanted them gone, but their kindred spirits in the South decided the NCAA shouldn’t be the judge of what schools could give players.

The disobedient schools became known as the Sinful Seven but faced no consequences for paying players more than the NCAA told them they could.

That taught everybody the NCAA was toothless.

To change that, the NCAA built an actual investigations arm, which school presidents agreed to open up in 1952.

It helped that in 1951, the NCAA had established national control of football TV rules, showing it could really be a national governing body that executed the wishes of most of the schools.

In November 1952, just months after the NCAA got real power to punish schools for breaking the rules, it charged Kentucky with paying six or seven basketball players $50 apiece between 1948 and 1950. UK apparently didn’t throw up many hurdles. In fact, the school announced on the day NCAA charges were filed that it wouldn’t play the 1952-53 season. Adolph Rupp’s Kentucky! Months after finishing #1 in the polls!

Not everyone who faced NCAA charges after that was so docile. The organization’s always had antagonists, going back at least to the Sinful Seven. But over the decades since the NCAA established an enforcement division, a few things have happened:

College sports have gotten bigger and harder to manage, and more people have come to realize the absurdity of not letting valuable athletes collect even a fraction of their value. People have broken NCAA rules and been a lot brasher about it, and they’ve sometimes been a lot less willing to play ball with the NCAA’s cops.

Meanwhile, the NCAA has set contradictory precedent, making it a reasonable call for any school to cooperate or not. For instance, North Carolina stonewalled and lawyered up after an academic fraud scandal that covered years of entire classes. The NCAA let the Heels off. Later, Missouri had its own fraud case involving an apparently rogue tutor who’d helped a few athletes cheat. Mizzou cooperated, then got nuked with a bowl ban.

For years, there have been two key truths about NCAA rules.

  1. They’re meant to prevent players from getting paid.
  2. They’re not laws. Breaking an NCAA rule could always bring punishments, like a postseason ban, coach suspension, or player becoming ineligible. But it wouldn’t get anyone prosecuted, and it wouldn’t usually get rule-breakers sued by their schools. This makes sense, because the NCAA isn’t a government agency. It’s a trade union of colleges.

That long relationship between schools and NCAA enforcement has always meant it’d be really useful for the NCAA to have something like subpoena power.

But because the NCAA isn’t the government, it doesn’t have that power. It certainly didn’t in 2011, when it investigated an illicit benefits case at Miami. Investigators reportedly resorted to mall-cop tactics to get witnesses to cooperate, and the investigation struggled. Miami didn’t exactly get away with it, self-imposing two years of bowl bans, but the NCAA piled on with little more than probation and a few lost scholarships. It wasn’t much considering the blockbuster nature of violations, meticulously detailed in public by a convicted Ponzi schemer who’d gotten tight with a bunch of star players.

The NCAA didn’t have that power in 2013, when investigators didn’t think Ole Miss receiver Donte Moncrief’s brother could afford a nice car on his own — that it must’ve been given to him as some kind of inducement to get his little brother to play in Oxford. Moncrief’s lawyer eventually shut down an NCAA attempt to get the receiver’s financial records, something it wasn’t allowed to compel him to hand over absent — wait for it — subpoena power.

After the late 2010s’ big basketball corruption case went public, the NCAA decided to set up its own version of that power.

Some businessmen and coaches paid each other and some players, whom they wanted to sign with specific schools. The FBI, with the NCAA’s backing, made a literal federal case of it. And amid the legal fights that would get a few people sent to prison and a few more exiled from college sports forever, the NCAA unveiled some new policies.

One of the biggest changes was requiring a “responsibility to cooperate” with NCAA investigations be built into the contracts for school presidents and all athletic department staff:

As a term of employment, school presidents and athletics staff must commit contractually to full cooperation in the investigations and infractions process.

Full cooperation means reporting violations in a timely manner; sharing all knowledge and documents requested in a timely manner; providing access to all electronic devices, social media and other technology; and maintaining confidentiality.

The chair of the Division I Committee on Infractions or the Independent College Sports Adjudication Panel can impose immediate penalties when schools or individuals do not cooperate (including loss of revenue or postseason opportunities).

These bodies can consider lack of cooperation as admission of a violation.

Many contracts already had language that required coaches and staffers to follow the NCAA’s rules, but this new rule universalized it.

The Justice Department had seized on that expectation in contracts that already had it, charging three coaches (and four others) with “honest services fraud,” by which the coaches allegedly wronged their universities with the help of the businessmen.

The feds also charged those coaches as “agents of federally funded organizations,” elevating alleged bribery that broke NCAA rules into a federal crime.

By making it a condition of employment that athletic department staff agree to “share all knowledge and documents” the NCAA asks for, the NCAA tied itself to real law enforcement. Before, if you didn’t cooperate with the NCAA, the worst punishment you could face was being barred from working in college sports. But after the hoops case, if you broke NCAA rules and covered it up, you were at risk of being charged with fraud.

The NCAA has gone even further in giving itself the benefit of federal law enforcement to punish alleged rules violations.

The NCAA now allows the use of “outside facts” to settle infractions cases:

People charged with investigating and resolving NCAA cases can accept information established by another administrative body, including a court of law, government agency, accrediting body, or a commission authorized by a school. This will save time and resources previously used to confirm information already adjudicated by another group.

The NCAA has a small staff of investigators. They do not exactly have the resources to personally investigate lots of entire universities all across the country at the same time, so drawing on credible findings from elsewhere makes a lot of sense. The NCAA drew on publicly commissioned information from former FBI director Louis Freeh when it punished Penn State after the Jerry Sandusky scandal, for example.

It’s easy to see how something like this can be abused, however:

  • It adds a potential new layer to an investigations process that’s already a total mess, with schools and the NCAA arguing for ages over which outside sources are credible.
  • It encourages school-authorized commissions to inject their own “findings” into the infractions process. This can be an issue when a school sets up a panel loaded with its own alums and people who have no professional investigatory experience. That’s what Maryland did after its errors led to Jordan McNair’s death in 2017. (The Maryland panel was a particularly bad joke, but at least the “investigators” made a lot of money.)

So, one reality of NCAA rules has changed. Another hasn’t.

The NCAA is now able to be more aggressive than ever in investigating violations of its rules. But those rules have the same purpose as always. The NCAA’s north star, the only thing it really cares about, is keeping money with universities and not athletes.