A Proposal to Make the Show-Cause Order...Unlawful?

Introduction

The National Collegiate Athletic Association (NCAA) is a governing organization over all three divisions of college athletics in the USA, Puerto Rico, and Canada. The NCAA oversees championships, student-benefit programs, and the creation and enforcement of rules and policies for college sports. However, adoption of some, or all, of the rules is ultimately decided by the individual member school or conference.

Following the investigation of a potential infraction, the NCAA’s Committee on Infractions conducts a hearing, draws a conclusion as to whether that infraction has occurred, and imposes the appropriate penalties. One possible penalty is a show-cause order.

Show-Cause Orders

As it stands, a show-cause order is a form of penalty which “requires a member institution to demonstrate to the satisfaction of the Committee on Infractions why it should not be subject to a penalty or additional penalty for not taking appropriate disciplinary or corrective action with regard to an institutional staff member or representative of the institution's athletics interests found by the Committee on Infractions as having been involved in a violation of NCAA bylaws.” (NCAA Bylaw 19.02.3).

In normal English, a show-cause order functions similarly to a probationary period. When an individual has been given penalties by the Committee on Infractions, those penalties stick with them wherever they go in the collegiate sports world. If they are hired by another institution, this new employer may incur those penalties unless they are able to reassure the NCAA that appropriate steps have been, and are continuing to be, taken to prevent further infractions by that individual. The hiring institution must also show good cause as to why they are hiring the individual in the first place despite the penalties that potential-employee brings with them and the representation of those penalties as proof of their previous negative conduct.

A show-cause order acts as a warning to future employers as well as a mark of shame for the individual. However, institutions and fans have historically been happy to work around such marks so long as the pros of the relationship (typically in the form of a successful coach) outweigh the cons (time appearing before the NCAA and steps to prevent further infractions). The main examples of this can be found in the hiring of Bruce Pearl by Auburn University and Kelvin Sampson by the University of Houston.

New Proposals

While show-cause orders have not always, or even commonly, proven to be a career-ending penalty, that may change very soon. A proposal modifying a number of penalties to be stricter on the individual behind the infraction was put forth and approved by the NCAA Division I Council on October 4th. The change that is interesting for the purpose of this piece is the modification to the show-cause order.

If these changes are adopted in January of 2024, the mere hiring of a coach that was under a show-cause order would result in a penalty for the school (likely around recruiting restrictions). The school would still have to appear before the NCAA as per usual; however, the penalty associated with the hiring would stand regardless. This immediately tips the scales of pros vs cons regarding hiring someone under a show-cause order by establishing quite a severe con at the start.

Interaction with Employment Law

Historically schools have considered show-cause orders as a part of what a potential employee brings to the table along with the positive qualities. Commonly in recent years, such orders have not severely interfered with an individual’s ability to be hired. But sometimes they have.

In 2018, Judge Shaller held that a show-cause penalty imposed against Todd McNair “unlawfully restrained” his career and acted as a “career-terminating sanction”. As thus, it was held to be invalid under California employment law. While there are work-arounds in the language of the show-cause order to avoid further contradictions with the law, the question as to the validity of a show-cause order was still placed under the spotlight of scrutiny.

Conclusion

The current show-cause order has already been questioned on the basis of unlawfully interfering with an individual’s right and ability to work in the collegiate sports world. The proposal to modify the show-cause order would increase the employment-restricting qualities which have already been criticized by acting as a deterrent for schools considering hiring.

So it stands to ask, can such a modification to the show-cause order be considered legally valid with relation to employment law?

Sources:

https://www.ncaa.org/sports/2021/2/16/overview.aspx

https://footballscoop.com/news/understanding-the-true-meaning-of-an-ncaa-show-cause-penalty

https://www.usatoday.com/story/sports/college/2014/05/27/ncaa-show-cause-penalty-bruce-pearl-kelvin-sampson/9632273/

https://www.espn.com/college-sports/story/_/id/38559044/ncaa-division-council-oks-proposals-stricter-penalties

https://www.ncaa.org/news/2023/10/4/media-center-division-i-council-introduces-proposals-for-updated-infractions-penalties.aspx

https://www.ncaa.org/sports/2021/6/28/infractions-process.aspx

https://web3.ncaa.org/lsdbi/

https://scholars.unh.edu/cgi/viewcontent.cgi?article=1399&context=unh_lr