New NCAA Legislation Necessitates Changes to Institutional Employment Agreements
August 15, 2018
On August 8, the NCAA Division I Board of Directors adopted Proposals 2018-16 and 2018-17. These proposals, which arose out of the work of the Commission on College Basketball (and associated working groups), will necessitate new content in employment agreements with certain institutional personnel executed, extended or renewed on or after August 8, 2018.
Proposal 2018–16 amends NCAA Bylaw 11.2.1 to require that any contractual agreement or appointment executed, extended or renewed on or after August 8 between an institution and its president or chancellor, director of athletics, coach, or other contracted or appointed athletics department staff include an express stipulation as to the employee’s affirmative obligation to cooperate fully in the NCAA infractions process. The Bylaw specifies that full cooperation includes, but is not limited to, (i) affirmatively reporting instances of noncompliance to the NCAA in a timely manner and assisting in developing full information to determine whether a possible violation has occurred and the details thereof; (ii) timely participation in interviews and providing complete and truthful responses; (iii) making a full and complete disclosure of relevant information, including timely production of materials or information requested, and in the format requested; (iv) disclosing and providing access to all electronic devices used in any way for business purposes; (v) providing access to all social media, messaging and other applications that are or may be relevant to the investigation; and (vi) preserving the integrity of an investigation and abiding by all applicable confidentiality rules and instructions.
Proposal 2018-16 further extends to presidents, chancellors and non-coaching athletics personnel an existing requirement, previously applicable only to coaches in Bylaw 11.2.1, that employment agreements stipulate that persons found in violation of NCAA legislation are subject to disciplinary or corrective action as set forth in the provisions of the NCAA infractions process.
While most well-drafted coaching employment agreements have historically included language obligating the coach to cooperate with internal and other investigations, and specifying consequences for noncompliance with NCAA legislation, institutions should review this language and, if necessary, update it for new agreements to incorporate the enhanced specific expectations of the NCAA. In addition, new agreements with presidents, chancellors and non-coaching athletics personnel should include the requisite provisions on cooperation and consequences for violation.
Proposal 2018-17 re-institutes and refines the recently-repealed Bylaw 11.2.2, requiring that contractual agreements with athletics department staff mandate the reporting, on an annual basis, of athletically related income or benefits from sources outside the institution (excepting cash or cash equivalents of less than $600 in the aggregate during the year). For purposes of the Bylaw, income or benefits are considered athletically-related if they have an athletics nexus, are related to the employee’s reputation or ability, or are provided because the employee is affiliated or employed with the institution.
As a best practice, many institutions had already continued to require annual reporting even following the repeal of prior Bylaw 11.2.2, and institutional templates and new employment agreements based on them may, therefore, already include language necessary to satisfy Proposal 2018-17. Institutions should, however, confirm this and may wish to incorporate references to the types of outside income referenced by the new Bylaw.