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:

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.

3 thoughts on “New NCAA Rule Incorporates Doctrine of Vicarious Liability to Head Coaches

  1. The real question is what will be the sanction if the head Coach is found to have violated this new Rule? Assuming the Head Coach was not aware that an assistant was engaging in recruiting violations, will the Head Coach nevertheless receive sanctioned under this vicarious liability rule as if he did the deed himself?

    1. Good question, Larry. As of October 30, 2012, NCAA Division I Bylaw 11.1.2.1 will state that 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.

      Further, effective August 1, 2013, head coaches may be suspended for identified Level III violations committed by assistant coaches on or after August 1, 2013.

      Under this new rule, the Head Coach is presumed guilty if an assistant violates a rule. The presumption can only be overturned through criteria explained in the article above.

      So, if a head coach does not promote an atmosphere,per the criteria above, a head coach could be suspended for actions by an assistant coach in which the head coach had no idea about. So yes, the coach can be suspended as if he committed the deed himself.

  2. Mr. Haynes,

    First off, I want to thank you for shedding light on this new rule that the NCAA has put in place, as I probably would not have been aware of it had you not made this blog post. I am a huge fan of both college and professional sports, and I am extremely interested in how the regulatory bodies aim to both control and curtail the violations that presumably occur on a day-to-day basis. While this new rule seems to have direct, remedial intentions, on first glance it seems unfair to bestow total responsibility solely on one party. Will this new rule seek to incriminate coaches moreso than before? I ask because, for example, both Roy Williams and Tom Izzo have stated that while they have witnessed third party recruiting violations, their teams do not partake in such actions. What effect do you think this new rule will have on coaches who are apparently free of guilt? Though I agree that it is important that head coaches be aware of the actions of anyone on his or her staff, I feel that this rule infringes on what a head coach is paid to do – coach his team to a national title. I agree with you that this rule consists of “extremely vague language;” it seems that this new rule has the potential to distract and confuse coaches, as they now have to worry more about what their staff is doing versus what their players are producing on the court/field. Why are other parties (namely third parties and the university) not targeted at all?

    I am also wary of the fact that this rule could have opposite effects with regards to other parties involved. Will agents and other third parties feel more at ease seeing as this rule places responsibility only on head coaches? Will this rule deter them from partaking in recruiting violations? In the dog-eat-dog world of being a sports agent, I feel like agents will see this new rule as giving them more freedom to engage in the acts that the NCAA is specifically looking to reduce. To me, it seems that more people need to be held accountable than just the head coach. There is only so much a coach can do or say to prevent their staff from engaging in these acts. It seems that coaches are in a lose-lose situation here; not only do they have to make sure that their team is producing night in and night out, but they also have to be active (with routine consultations with several administrative bodies) in making sure that no one on their staff violates the countless NCAA codes. Overall, I like where the NCAA is heading with this new rule implementation. However, I think that both you and I agree that other parties should bear more responsibility as well. Thanks again for raising awareness on the NCAA’s new rule and how it manipulates a head coach’s role.

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