If you can't beat 'em, hire 'em: The gutting of the NCAA

Robert Deutsch-USA TODAY

UConn recently became the latest major program to hire away a member of the NCAA's enforcement staff. Is this regulatory capture? Malicious raiding? The Partitions of Poland? We discuss.

In March 2006, Angie Cretors, an NCAA investigator, was on UConn’s radar because she was describing the sums that are spent gambling on college basketball. In August 2013, Cretors was on UConn’s radar because the school was hiring her as its Senior Associate Director of Athletics for NCAA Rules Education and Compliance Services.

For a school that has had a variety of issues with the NCAA in recent years, hiring an NCAA investigator makes sense. Cretor should know better than anyone else how the NCAA’s enforcement arm operates (such as how it interprets its byzantine rule book), how it goes about investigating alleged wrong-doing, and what sort of factors can make it less likely for a program to find itself on probation. If UConn does find itself in hot water again, then having someone in the athletic department with relationships in Indianapolis can be very valuable.

And, although NCAA member institutions will never admit to this strategy, the phenomenon of UConn and other programs taking nibbles out of the NCAA’s enforcement division can also reduce that entity. Cretors is just the latest in a long list of individuals leaving the NCAA:

[Cretors’] hiring comes shortly after the departure of NCAA managing director of enforcement Rachel Newman Baker who had been with the association for 12 years. The NCAA's widely reported talent drain continues. In the last 14 months, the NCAA has lost its enforcement director (Julie Roe Lach), lead investigator on the Miami case (Ameen Najaar), football focus group head (Bill Benjamin), an enforcement director (Dave Didion), Division II vice president Mike Racy and managing director of enforcement (Newman Baker).

The flow of talent and experience from the NCAA to the athletic departments that it is meant to regulate is pronounced. Baker took the position of senior associate athletics director for compliance at Kentucky. Didion accepted a similar position at Auburn. UConn and Auburn have both had recent interactions with the NCAA, and Kentucky has an illustrious history in that department.

So what better way to discuss the phenomenon of major college sports programs weakening the investigative arm that is meant to regulate them than by a series of tortured analogies?

1. Regulatory capture

You do not need to be a political junkie to be aware of the concept of the revolving door between regulatory agencies and the industries that the agencies are meant to supervise. The revolving door becomes one means by which regulatory capture can take place. Does this sound similar to major programs hiring away NCAA investigative personnel?

Meredith Attwell Baker was one of the FCC commissioners who approved a controversial merger between NBC Universal and Comcast. Four months later, she announced her resignation from the FCC to join Comcast's Washington, D.C. lobbying office. [...] Craig Aaron, of Free Press, who opposed the merger, complained that "the complete capture of government by industry barely raises any eyebrows" and said public policy would continue to suffer from the "continuously revolving door at the FCC."

Or how about this?

Between 2006 and 2010, 219 former SEC [the other SEC] employees sought to represent clients before the SEC. Former employees filed 789 statements notifying the SEC of their intent to represent outside clients before the commission, some filing within days of leaving the SEC.

Now, the regulatory capture analogy is not perfect here, because it does not appear that the NCAA’s enforcement division has become a tool of the schools that it means to regulate. It’s not as if the enforcement division has turned a blind eye to violations on the part of Kentucky while choosing to hammer Louisville. For a closer fit, we may have to move from political science to the law…

2. Malicious raiding

Imagine that you own a company that produces red slacks for Georgia fans. Seeing as how this is a niche industry, you have one main competitor. In a daring strike, that competitor hires away your key sales and operations employees in the late summer, just before the wave of fans buying impractical pants in anticipation of the return of football. You do what any red-blooded American does: go to your lawyer’s office to see if "that ain’t right" can turn into "that ain’t legal."

In this instance, you are in luck, thanks to Architectural Manufacturing Co. v. Airotec:

It is apparent, however, that the general thrust of the cases relating to injury to business is that, while even the destruction of a competing business by means of attracting its customers in the fair course of trade is not actionable, destruction or substantial injury by means of attracting away all or a large percentage of personnel upon whom it must depend to function, especially if other circumstances such as the use of confidential information or misrepresentations as to the plaintiff's financial solvency are involved, is compensable, with lack of actual malice going merely to mitigation of damages.

Not every state has a malicious raiding tort like Georgia does, so your mileage may vary if you are making coolers for Ohio State fans instead of red slacks for Georgia fans. However, the point here is that the notion of destroying a competitor by hiring away its key personnel has received attention from judges, as well as political scientists.

That said, the NCAA isn’t exactly a competitor for the schools that it regulates. Since we are bouncing around the liberal arts (and the profession into which liberal arts majors often gravitate), let’s come up with a historical example…

3. Stanislaus August Poniatowski

Stanislaus Poniatowski was one of Catherine the Great’s lovers. Poniatowski hoped that his relationship with Catherine would end in marriage. Catherine hoped that their relationship would end with a pliable, star-crossed former lover on the Polish throne. As was usually the case, Catherine got what she wanted. Poniatowski became the King of Poland, thanks to unsubtle interference on the part of the Russians. Poniatowski then found himself powerless to stop the three Partitions of Poland, a process that ended in 1795 with the country having been carved up completely between Russia, Austria, and Prussia.

So would Auburn, Kentucky, and UConn be happy to be compared to the Enlightened Despots? Would they be happy to know that their collective actions in dismembering the NCAA’s enforcement division is similar to Poland’s neighbors dismembering Poland, thus removing a potential irritant and allowing the Great Powers to get back to their competition?

Is it smart to remove an annoyance – especially when a side benefit is incorporating part of that annoyance into your own structure for future uses – or is it dangerous because the annoyance could also keep your rivals in check?

And is the NCAA’s enforcement division big enough to support an arms race whereby major programs will all want to hire enforcement personnel as compliance directors? Will Alabama sit idly by while Auburn participates in an exercise of regulatory capture? Hey, the idea of an arms race gives me an idea for an analogy…

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