New NCAA Rule Incorporates Doctrine of Vicarious Liability to Head Coaches

The following article was written by Benjamin Haynes, Esq.

Starting October 30, 2012, the NCAA will implement a new rule with regards to Head Coach’s responsibilities. The specific rule is NCAA Division I Bylaw 11.1.2.1, which will state:

“An institution’s head coach is presumed to be responsible for the actions of all assistant coaches and administrators who report, directly or indirectly, to the head coach. A head coach shall promote an atmosphere of compliance within his or her program and shall monitor the activities of all assistant coaches and administrators involved with the program who report, directly or indirectly, to the coach.”

I asked Jay Bilas his thoughts on this new rule:

@bhaynes32 Every person should be responsible for what is reasonably within their control. Note how presidents accept zero responsibility.

— Jay Bilas (@JayBilas) October 26, 2012

Legally speaking, this new NCAA rule is similar to the doctrine of vicarious liability. The concept of vicarious liability can be described as follows: “A person whose liability is imputed based on the tortious acts of another is liable for the entire share of comparative responsibility assigned to the other.” Restatement (Third) of Torts: Apportionment of Liability § 13 (2000). In layman’s terms, vicarious liability means that an employer is responsible for the actions of employees, when such actions were performed within the course of employment. This rule is also called the “Master-Servant Rule” and is recognized in both common law and civil law jurisdictions.

In order for this doctrine to apply, the court must find that the employee was acting within the scope of employment at the time the tortuous conduct occurred.

The NCAA’s new rule determines that a head coach will be presumed responsible for major/Level 1 and Level II (e.g. academic fraud, recruiting inducements) violations occurring within his or her program unless the coach can show that he or she promoted an atmosphere of compliance and monitored his or her staff. Therefore, the burden is on the coach to prove his or her innocence with regards to the violation. As noted by Jay Bilas, the President of the University has no responsibility, according to the NCAA rules, to make sure that the athletics department is complying with these NCAA regulations.

Promoting an atmosphere of compliance and monitoring one’s staff is extremely vague language, and leaves such up to interpretation. However, the new rule provides guidelines in which the NCAA will look to in order to determine whether a coach has promoted such an atmosphere. The NCAA has labeled this the “Action Plan”. There are three main bullet points that the NCAA highlights in the Action Plan. They are, 1)Communication; 2)Monitoring; and 3)Documentation.

For “Communication” purposes, the NCAA expects a head coach to do the following:

• Meet with the chancellor or president to discuss his/her expectations for NCAA rules compliance;
• Meet with the AD to discuss his/her expectations for NCAA rules;
• Meet with the compliance director to discuss his/her expectations for NCAA rules compliance (includes suggested talking points);
• Meet jointly with the president, athletics director and compliance director to discuss the institution’s and program’s compliance environment and expectations; and
• Meet with coaching and support staff to discuss head coach’s expectations for NCAA rules compliance. Including a written document, which outlines the head coach’s commitment to ethical conduct, along with various talking points.

For Monitoring purposes, the NCAA expects a head coach to do the following:

• Actively look for red flags of potential violations;
• Ask questions;
• Consult with the compliance director to create written procedures to ensure you’re the staff is monitoring the program’s rules for compliance. (Suggested procedures included); and
• Regularly solicit feedback from staff members concerning their areas of compliance and the program’s overall compliance environment in order to ensure that the systems are running properly.

For Documentation purposes, the NCAA suggests that a head coach should document the ways he/she has communicated or demonstrated such a commitment to compliance and should be able to produce documentation for the procedures in place.

One thing is certain – this new rule places even more responsibility on a head coach. In fact, this rule mandates that a head coach take on a compliance director’s role. Fair? Some will argue that a head coach is responsible for his staff’s actions to a degree, and rightfully so. Others will argue that this rule makes a head coach take on an investigator role, which surpasses the type of burden a head coach should have regarding such issues. In short, a head coach must now be proactive in complying with the NCAA’s “Action Plan” in order to cover himself from future penalties.