NCAA punishment is inefficient, inconsistent, compromised; here's how to fix it

The NCAA has gotten better but still has fundamental problems with the way it punishes schools. (Getty Images)

The Atlantic, which in September of 2011 published one of the most thorough take-downs of the NCAA ever put to paper, has a new dress-down of college sports' monolith.

Criticism over "inadequate investigations" has led to musings and forward-leaning problem-solving by Stephen A. Miller, a Philadelphia-based attorney who happens to deal with the NCAA on a regular basis. Miller fights on behalf of players who find their eligibility thrown into question by the NCAA.

The piece isn't groundbreaking but is worth a look. It's one-half recap of the NCAA's madcap legislation and the other half a vision for solution-oriented, systemic change for the future. Miller brings up simple but obvious points, points that aren't covered enough by the media. For example, we don't know how much the NCAA pays for its 50-person investigative staff, so how can we know it's really doing all it should to enforce rules at its member schools? We do know the association makes more than $860 million per year, most of that coming from the D-I men's basketball tournament.

But all that money doesn't dovetail with power. It's selective power -- and sometimes it looks selective not by the instances of possible rule-breaking, but by conflicts of interest built in to the NCAA's enforcement process along with business relationships with NCAA's biggest allies -- the big schools bringing in the most revenue.

The fact the NCAA lacks subpoena power creates problems, as we've seen in the Lance Thomas situation at Duke.

Plus -- and this is too often overlooked or just isn't made known -- most NCAA enforcement task members don't have investigative experience. They're thrown into their position. It's doubtful the NCAA is getting the best mileage possible out of the people it's hiring.

Many violations and subsequent penalties are a result of schools' self-reporting efforts. And it says something about the NCAA's mythical power when secondary violations are regularly reported, when it's possible many of them would go undetected. But it's hard to sniff out the bad guys because so much is hidden and this is mostly a no-snitch game (though there are exceptions).

Miller argues for an overhaul of staff and execution of investigations.

The solution is abdication. Not abandonment of any enforcement efforts but voluntary transfer of enforcement responsibilities to an outside organization. This gesture would serve as an acknowledgment that an independent body would do a better, more credible job of enforcing the NCAA's rules than the NCAA itself, which suffers from financial and other conflicts of interest in this regard.

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And because of the picayune nature of many of the NCAA's rules, most of these self-reports that flood the system concern "secondary" (read: immaterial) violations—about 4,000 per year. Processing these secondary violations reduces the staff's ability to focus on major cases. Across all NCAA sports, the enforcement staff processes an average of only 25 "major" cases each year—and many of those result from self-reports, as well.

The article ticks off examples of inconsistent punishment in recent years, highlighting the nine-game suspension for Josh Selby in 2010-11; the six-game suspension Ryan Boatright endured last season at UConn; the ineligibility of Enes Kanter at Kentucky in 2010-11. The thread even tickles more of John Calipari's career, as The Atlantic references the Marcus Camby and Derrick Rose "busts" that retroactively scrubbed the 1995-96 UMass and 2007-08 Memphis teams from official record books.

It also mentions the Corey Maggette story, which Duke suffered nothing more than a public reprimand for approximately five years after Maggette walked out on Duke for the NBA.

Beyond that, the case can be made the grotesque nonaction at Penn State for years, maybe even decades, put the NCAA in its most precocious position. Something clearly needed to be done, but never before had the organization been so authoritative on what was essentially a moral decision -- because all legal matters were handled by the proper bodies.

The Penn State case and all other gray-area possible wrongdoing goes beyond the famous pornography line that the Supreme Court used as precedent more than two scores ago. The very nature of the NCAA's problem is it can't pinpoint good behavior vs. bad; or, rather, acceptable and savvy recruiting methods vs. out-of-bounds, dirty pool.

So The Atlantic put together its pitch on how the NCAA would be best suited to move forward. It means the NCAA needs to give up a lot of control in order to earn respect, get its houses in true order and, most importantly, be effective in punishing fairly and swiftly. (I've edited these down for brevity's sake.)

• Outsource Major Investigations: The NCAA should engage an outside entity (law firm, consulting firm, investigative agency, etc.) to manage the investigation of all major violations.

• This outside entity should be comprised of professionals with significant investigative experience, such as former detectives and prosecutors.

• As opposed to its investigators being stationed in a central location, the entity's investigators should be spread throughout the country to take advantage of broader networks of sources and facilitate more efficient responses to investigative leads.

• The NCAA itself can continue to process and penalize self-reported secondary violations, as appropriate. The outside entity, by contrast, will remain focused on investigating major violations.

• Outsource Punishment Decisions: Ideally, the NCAA would outsource the determination of appropriate punishment to this outside entity, as well.

• The outside entity could assemble its own Infractions Committees—unburdened by any current connection to member-institutions—comprised of some (possibly revolving) combination of experienced law enforcement officials, former judges, former athletes/coaches, and/or former university officials.

• If the NCAA refused to give up control of the power to penalize, the outside entity could nonetheless recommend punishments to the NCAA's Committee on Infractions for ultimate decision within 60 days.

• Be Transparent: The outside entity should publish both its findings and recommendations for punishment (with appropriate privacy protections).

• Encourage Investigations: The NCAA should expressly encourage the outside entity to conduct investigations of major violations in order to demonstrate its commitment to integrity.

• Commit Financially: As the phrase goes, the NCAA needs to put its money where its mouth is. Currently, the NCAA's enforcement staff is one "central service" among many in the organization's Indianapolis home office that divides 4 percent of the annual revenue. If the NCAA devoted only 3 percent of its annual revenue to the proposed venture, that would inject $22.8 million each year into the efforts to root out major violations.

All this said, there are cases where crimes can't be boxed into easy-to-punish guidelines. As in the recent UNC academic problems, if it extends beyond players and is a course or department problem, does the blame lie with the players or the athletic department if five, 10 or 20 freshmen/sophomores/juniors/seniors succumb to a fraudulent A?

Jurisdiction gets murky. There should be some kind of punishment, but academic fraud can come in many ways -- and UNC proves it's not always by way of nefarious actions from players.

The Atlantic argues the NCAA for far too long has been flying by the seat of its pants in making the rules, handing out penalties and subsequent loops that are mounted with each oncoming obstruction of its outdated ideals.

Please, read the piece. It's about a 12-minute digest, and it does a great job at succinctly recapping some of the more notable punishments and violations (fair or not) with the NCAA in recent times. When you see all of them laid out, you will notice the inconsistency.

It's enough to question if the NCAA is competent, let alone efficient, in policing its members who benefit the boss by performing at high levels and drawing more interest to their sports, raising revenue to heights it's never seen before.

"Big" doesn't do the problem's size justice.