Enforcement power in flux

In California, the Reggie Bush case remains a witness-stonewalling frustration to the NCAA.

At Ohio State, another high-profile case recently was undermined – three findings of rules violations thrown out on appeal because of a procedural concern.

It has been a perplexing month for the NCAA’s 55-year-old enforcement program, which even in the best of times struggles to satisfy member schools and conferences and fend off critics. The slow-moving investigation of the Bush family’s dealings with a would-be marketing agent underscores the limitations imposed by a lack of subpoena power. Most of the principals, including the former Southern California football star, aren’t talking.

The decision in the Ohio State case stemmed from a disagreement within the NCAA on a deadline for filing the disputed charges.

“At all junctures, it’s a very fragile process … all the way from getting anyone to come out and talk in the first place to successfully prosecuting the case,” says John Gerdy, a former NCAA and Southeastern Conference official who’s now a visiting professor of sports administration at Ohio University and an author on sports reform.

The recent incidents are “disheartening,” he says, “because the chance that you can really be held accountable for going outside the rules is probably decreasing as a result.

“What’s going to be the reaction of people out there, coaches or whomever, who are trying to get an edge? You make decisions. You weigh actions and potential consequences.

“Anytime the NCAA’s ability to successfully identify and investigate and prosecute a case is damaged, the equation on the other end (is) maybe you do take that chance.”

The NCAA has long dealt with the lack of legal means to force reluctant witnesses to talk, says Mike Glazier, a former association investigator and enforcement director who has represented and advised schools in infractions cases since 1986. Two years ago, he points out, former Ohio State running back Maurice Clarett was telling a national magazine about violations at the school but stymieing NCAA efforts by refusing to talk to investigators.

And Glazier considers the outcome of the recent Ohio State case, in which he represented the school, “a positive for the (NCAA).” An association-appointed appeals committee struck some of the findings of investigators and the infractions committee because of what was deemed a technicality. The appeals ruling didn’t affect penalties assessed Ohio State that included three years’ probation and vacating four NCAA tournament appearances.

“What it says is that the NCAA is holding itself to the same kind of standards it tries to hold its members to: If you don’t follow one of the procedural requirements, there’s a consequence for it,” Glazier says.

The NCAA has beefed up and refined its enforcement program since Myles Brand took over as president in 2003, increasing the number of investigators from 12 to 20 and the number of directors from four to five. Average processing time for a case – from the date the association receives information about a possible violation to the time the school is formally notified of allegations – dropped from almost 19 months to less than nine months.

But that does not address the fundamental problem in the Bush case. “We have the ability to require certain people to talk to us or face an unethical conduct charge … primarily school personnel, people who are directly under our jurisdiction,” says David Price, the NCAA’s vice president for enforcement services. “But when you go outside that group, we generally are trying to get people to operate in good faith in telling us what happened.”

The NCAA can and does enlist schools to coax reluctant witnesses. “But in the end, if they refuse to cooperate, there’s not a whole more we can do about it,” Price says.

Perhaps further complicating the Bush investigation is a settlement reached recently between the running back’s family and the would-be agent, who claims to have plied the family with rent-free housing and cash gifts in what turned out to be a futile effort to land Bush as a client. Yahoo.com reported the agreement includes a confidentiality clause precluding the businessman from talking to the NCAA.

Price declined comment on the development, noting only, “If we feel like we are making headway, we will keep the case alive and continue. … You know we have an ongoing case, so you can draw your own conclusion.”