Aggravating and mitigating circumstances in NCAA enforcement.

In addition to lacking subpoena power and legal standards, the presence or absence of aggravating and mitigating circumstances affects the penalties levied in NCAA infractions cases.

Aggravating circumstances warrant the imposition of more severe penalties in an infractions case. Mitigating circumstances warrant the imposition of less severe penalties in a case. Aggravating circumstances include but are not limited to an institution's history, and the school's cooperation with the NCAA during an investigation. If you fail to cooperate or try to conceal violations, you are subject to more severe penalties. Conversely, if you exhibit exemplary cooperation or have little to history of rules violations, you may be given less severe penalties.

It may seem axiomatic that cooperation mitigates potential penalties in an infractions case, but without subpoena power the NCAA must put a premium on openness. Otherwise, it would be extremely difficult for the NCAA to discover relevant information in a given case, because there would no incentive for schools to do so.

What is a "lack of institutional control" in NCAA Bylaws?

To encompass a variety of conduct, the NCAA's definition of "institutional control" is broadly written. When a school exercises control and responsibility over its intercollegiate athletics programs, it has institutional control. Accordingly, a school lacks institutional control if it does not exercise control and responsibility over its intercollegiate athletics programs. Under the new Division I violation structure, a lack of institutional control is a severe breach of conduct (Level I violation). A failure to monitor is usually a significant breach of conduct (Level II violation) unless severe enough to be a Level I violation.

When the NCAA conducts an investigation after an alleged violation, a primary factor in determining whether there is institutional control is the compliance measures in place at the time of the violation. Basically, an NCAA investigation is a process audit, and a charge of a lack of institutional control is a failing grade.

Most violations do not result from a lack of institutional control. If a school has adequate compliance measures in place, properly educates and monitors relevant personnel, and takes action when alleged violations are discovered, it will not be charged with a lack of institutional control. However, if a school does not establish adequate compliance measures, does not properly oversee or educate relevant personnel, does not fix ineffective measures, or suffers some other defect preventing it from monitoring compliance, it will be charged with a lack of institutional control.