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Failure to monitor?

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Mark Alesia of the Indianapolis Star notes today, correctly, that it's possible that the NCAA Division I Committee on Infractions could add charges, including failure to monitor, even if the NCAA enforcement staff did not initially charge IU with such violations. To analogize to the legal system, it would be as if a judge had the right to add criminal charges that had not been filed by the prosecutor. Alesia notes that the Committee recently did just that in a proceeding against the Long Beach State basketball program. While Alesia is technically correct, there are some important differences that distinguish the Long Beach case from IU's situation.
First, it's important to consider the Long Beach State situation and how it differs from IU's situation. Here's the NCAA's public report on LBS. After a couple of lousy seasons, LBS signed a handful of academically questionable junior college kids (academically questionable even by juco standards, that is). The NCAA enforcement staff charged LBS with the following: "impermissible inducements and benefits," mostly payments by assistant coaches for summer and correspondence courses used to get these players eligible; "improper transportation and phone contacts," all involving one player who failed to be admitted to LBS and was therefore reclassified as a prospect; "unethical conduct" by two assistant coaches in misleading the NCAA and otherwise obstructing the investigation; and "failure to monitor by the head coach," which is what it sounds like. As Alesia notes, the NCAA Committee on Infractions added a charge of "failure to monitor by the institution."
The first question, of course, is whether there is really a chance that the Committee on Infractions will add charges. I'm no expert on NCAA procedure, but I tend to doubt it, or at least doubt that IU will be forced to address such an issue at the June 13 hearing. The NCAA's report on LBS makes clear that the Committee notified LBS that it would consider the institutional failure to monitor charge at the hearing. LBS responded at the hearing and in two post-hearing filings. While there's no indication of when the Committee informed LBS of the new charge, IU's hearing is three weeks from tomorrow. While I would never underestimate the ability of the NCAA to act unfairly, that would be a pretty tight timeline for IU's counsel to adequately prepare a response to a new allegation. Of course, it's always possible that the NCAA will put IU in a time crunch or will postpone the hearing, but my hunch is that if IU were going to have to address new charges at the hearing, the Committee would have told IU by now.
Second, the facts of the LBS situation are readily distinguishable from IU's situation. In a nutshell, LBS admitted a bunch of academically marginal players. Several of those players moved to Southern California, enrolled in schools other than LBS, and did surprisingly well with very heavy course loads. As the NCAA notes, LBS pretty obviously should have known that something was up, but simply covered its eyes and claimed that it had no obligation to monitor these recruits until they were enrolled at LBS. The NCAA disagreed. I think it's important to consider the entire paragraph that contained the "high alert" language cited by Alesia:
These academic deficiencies in and of themselves should have put the institution on high alert. So too should the fact that these six prospects constituted the majority of the recruiting class in men's basketball. Yet there was neither effort to educate or remind the coaches as to their responsibilities in dealing with the prospects nor oversight of their conduct to ensure rules compliance. These non-actions clearly constitute a failure to monitor on the part of the institution. Conversely, if the athletics administration was not aware of the number of prospects who faced serious questions regarding their admission and eligibility, then this too was a failure to monitor.
Later in the discussion, the NCAA throws in this one liner that certainly should give us pause:
Finally, as set forth in Finding B-3, 23 impermissible phone calls were made to student-athlete 1 from August 2004 to May 2005. The institution's compliance office failed to detect them in a timely fashion, which is also indicative of a failure to monitor.
The passage in bold sums up why I don't expect IU to face an institutional failure to monitor charge. Obviously, IU's compliance procedures were not perfect. If IU's procedures had been perfect, IU would have caught the three-way calls within weeks after they were made instead of months. And of course, IU never should have hired Kelvin Sampson in the first place given his history with improper phone calls. Nevertheless, let's not lose site of the fact that IU's "monitoring" is the only reason this issue is before the NCAA right now. IU notes that the arcane way in which three-way calls are noted made them difficult to detect. Still, IU, when doubling back over previously reviewed bills, found the calls and reported the calls to the NCAA. IU required all of its assistants to list all phones used to make recruiting calls. All three assistants lied on those forms. Also, in contrast to LBS, IU did try to educate the coaches, through weekly meetings and e-mail updates, of their obligations. It seems to have gone in one ear and out the other, but IU's efforts are well-documented.
It is further worth considering that the 23 impermissible phone calls made by LBS were made to a former signee who had been reclassified as a prospect after he wasn't admitted to LBS. It seems that the NCAA was punishing LBS for its coaches' ignorance of that reclassification.
The most troubling aspects of the allegations against IU are 1) the impermissible three way calls; 2) Sampson's improper use of others' phones; 3) Senderoff's use of his home phone for a huge number of impermissible calls. Violations 2 ans 3 were basically undetectable, and IU did detect violation 1, although belatedly.
I think there are two competing equities here that will pull the NCAA Committee on Infractions in two directions: first, the temptation to hammer IU for knowingly hiring a coach with an NCAA history who then committed similar infractions in his first year, on one hand; and on the other, IU's attempts to monitor the behavior of the staff and IU's prompt self-report and investigation. As tempting as the former must be to the NCAA, hammering IU despite the latter could have a chilling effect on monitoring and self-reporting. Unless the NCAA's position is that any unsuccessful monitoring constitutes a failure to monitor, I will be surprised if the NCAA adds this charge.