The NCAA has denied a request to delay legislation that its critics say would increase the risk of athletic directors facing criminal prosecution.
The so-called "attestation of compliance" legislation adopted in the spring increases some of the ultimate responsibility for compliance in athletic departments from presidents and chancellors to athletic directors.
While it is assumed those officials are always responsible for compliance, this new standard comes out of the reforms urged by the Rice Commission on College Basketball 16 months ago.
Those reforms resulted from the FBI investigation into college basketball that exposed the depth of cheating in the sport. Eight schools and seven individuals were implicated in the government's probe.
"Five years ago no one would have ever said that an athletic staff member could go to jail because of admissions or certification," said Tom McMillen, head of Lead1 the professional organization for the nation's 130 Football Bowl Subdivision athletic directors. "You would have taken a bet with anyone on the planet. Look what's happening. People are going to jail."
On July 23, McMillen wrote NCAA president Mark Emmert asking for a delay in implementation of attestation from August 1 to January 1, 2020.
The denial of that request came three days later from Donald Remy, the NCAA's chief operating officer and chief legal counsel.
Remy wrote that Lead1's contention that more AD responsibility would expose them to "potential liability – both criminal and civil …" was "a vast overstatement."
McMillen, a former Maryland congressman, sent a survey to the FBS ADs regarding attestation. He got 58 responses, 95 percent of which supported modifying the legislation.
"Our ADs are really up in arms," McMillen told CBS Sports. "I've had several ADs tell me they won't sign it.
"Whenever you have attestation, it increases liability no matter how you want to carve it up. When you have the issue of high public scrutiny. The NCAA can't stop a prosecutor from looking into it."
The level of concern from athletic directors contacted by CBS Sports varies from heightened to a shrug of the shoulders by one Power Five AD.
"Some of these athletic departments are 200, 300, 400 people," one FBS AD who did not want to be identified said. "How do you document it? It really came out of the chute too quickly."
ADs have until Oct. 15 to sign the attestation document. Failure to do so could mean a school would be ineligible for individual and team NCAA championships.
Lead1's attorneys are concerned that in the climate created from the federal government's involvement in college basketball, ADs could be next to find themselves in the courtroom.
In a July 8 letter, Lead1 attorney Robert Barnett warned the organization of "major liability risks." Barnett cited the indictments stemming from the United States vs. Gatto trial.
The government used the payment of basketball players and their families by outside sources as a basis for federal wire fraud charges. To many, the trial effectively made violating NCAA rules a violation of federal law.
McMillen was so concerned about the parallel with Gatto that he hired the powerful Barnett, described as the "go to" attorney for former presidents and other government officials. Barnett's bio states he has worked on 10 presidential campaigns and was an adviser to both Bill Clinton and Barack Obama.
"Because of this enhanced exposure," Barnett wrote to McMillen on July 8, "your members should proceed with extreme caution when making any annual attestations of compliance."
The Rice Commission announced its recommendations in April 2018. Part of the attestation policy had to do with college CEOs (presidents and chancellors) charged with having enhanced oversight.
Legislation was eventually amended in April 2019 to include that an athletic director "understands the institutional obligations and personal responsibilities," of the NCAA principle of institutional control.
Critics argue the language is too vague and therefore puts the ADs more at risk.
In a statement to CBS Sports NCAA vice president for Division I governance Kevin Lennon said: "The Division I Board of Directors discussed the attestation requirement at its Aug. 7 meeting and felt comfortable moving forward for several reasons.
"Specifically, the board noted the requirement appropriately distinguishes the role of a president and the role of the athletics director. Additionally, the requirements are elements widely considered to be consistent with those performed by athletics directors. In fact, many athletics directors in all three divisions – including some LEAD1 members – have indicated they are comfortable with the requirement as adopted."
Some of the Rice Commission recommendations were fast-tracked, sometimes not to the liking of membership. CBS Sports pointed out the conflict of interest in the NCAA's new enforcement model. This week the NCAA removed the college-degree requirement in the so-called "Rich Paul Rule."
"It is important to note each initiative went through the governance process as it was designed by the membership, including the Division I Board of Directors and Council," Lennon said in a separate statement. "There really was not anything unusual beyond the rate at which legislation was passed. While the reforms moved quickly through the process, it included more outreach and opportunity for feedback than normal due to the significance of the issues addressed by the Commission on College Basketball."
