1. DIVISION II LEGISLATIVE AND INTERPRETIVE PROCESSES Amanda Conklin Jennifer Fraser

2. Overview  Legislative process.  Governance-sponsored proposal.  Membership-sponsored proposal.  Interpretive process.  Appellate opportunities.  Effect on waivers, reinstatement and enforcement.  Using Legislative Services Database for the Internet (LSDBi) to your advantage.

3. Session Outcomes  Understanding of the legislative processes.  Confidence to seek interpretation and effectively make an interpretive argument.  Using the various functions of LSDBi to your advantage.

4. How A Concept Becomes A Proposal Legislative Processes

5. Governance-Sponsored Proposal (NCAA Convention Legislation) Committee Division II committee discusses concept. Makes legislative recommendation to NCAA Division II Management Council. Management Council Approvals are forwarded to NCAA Division II Presidents Council. Defeated recommendations can be sent back to the committee for further discussion and development. Presidents Council Presidents Council approval is the final step. Also has the authority to defeat the recommendation.

6. Governance-Sponsored Proposal (Convention Legislation), continued Staff NCAA academic and membership affairs (AMA) staff drafts the concept as a legislative proposal. Management Council Approve in legislative format. Has authority to not approve the legislative format. Presidents Council Approve in legislative format is the final step in a properly sponsored proposal for Convention.

7. Other Types of Legislative Proposals  Noncontroversial proposal.  Change is not controversial and is necessary for the normal and orderly business of the division.  Approval by Management Council in legislative form equates to adoption.  Carries an immediate effective date, unless otherwise noted.  Requires ratification at Convention. NCAA Constitution 5.3.1.1.1

8. Other Types of Legislative Proposals  Modification of Wording.  Recommended when sufficient documentation is available to establish that the language of the legislation is inconsistent with the intent.  Approval by Management Council in legislative form equates to adoption.  Carries an immediate effective date, unless otherwise noted.  Requires ratification at Convention. Constitution 5.4.1.1.1

9. Other Types of Legislative Proposals  Incorporation.  Official interpretation incorporated into the legislation.  Approval by Management Council in legislative form equates to adoption.  Carries an immediate effective date, unless otherwise noted.  Requires ratification at Convention.

10. Other Types of Legislative Proposals  Administrative Regulations.  Implementation of policy established by the legislation governing the general activities of the division.  Approval by Presidents Council in legislative form equates to adoption.  Carries an immediate effective date, unless otherwise noted. Constitution 5.2.3.1

11. Other Types of Legislative Proposals  Policy and Procedure.  NCAA Division II Committee on Infractions and NCAA Division II Infractions Appeals Committee have the authority to adopt or revise policies and procedures for the conduct of the enforcement program.  Approval by Management Council.  Carries an immediate effective date, unless otherwise noted. Constitution 5.2.3.3

12. Membership-Sponsored Proposal  Two conferences on behalf of 16 member institutions.  Sixteen member institutions.  Important dates:  July 15 – sponsorship.  September 1 – amendment-to-amendment.  Development of the proposal.  Intent and rationale.  Committee positions (Constitution 5.3.7).

13. The Interpretive Process

14. Primary Participants  The interpretations process is a shared responsibility.  Membership.  Institutions.  Conferences.  NCAA Interpretations Subcommittee of the Division II Legislation Committee.  NCAA Division II Management Council.  NCAA national office.  AMA staff.

15. Member Institutions  Apply and enforce NCAA legislation and interpretations.  Administer athletics programs in accordance with the constitution, bylaws and other legislation of the Association.  Request interpretations from AMA staff.

16. Member Conferences  Assist member institutions in applying NCAA legislation.  Promote competitive equity by ensuring consistent application of the rules.  Assist AMA staff by reducing volume of interpretations requests.  Participate in AMA’s conference contact program.

17. Academic and Membership Affairs  Assists institutions and conferences in applying legislation.  Authority to issue binding staff interpretations.  No authority to adopt or approve legislation.

18. Interpretations Subcommittee  Review staff determinations prior to publication on LSDBi.  Authority to elevate to official interpretation.  Authority to recommend an official interpretation be incorporated.  Appellate body for staff interpretations.

19. Interpretations Subcommittee (continued)  Provide official interpretations in response to requests from:  Institutions and conferences.  AMA staff.  Governance structure.  Legislation Committee Policies and Procedures.

20. Management Council  Reviews official interpretations issued by Legislation Committee.  Authority to issue official interpretations.  Legislation Committee cannot revise a Council-approved interpretation.  Appellate body for Legislation Committee decisions.  Decisions are final.

21. The Division II Interpretations Process Requesting Staff Interpretations

22. Contacting Academic and Membership Affairs  Initiates the interpretations process.  Primary methods.  Telephone.  AMA operates the interpretations line from 9 a.m. to 5 p.m. (Eastern time), Monday through Friday.  Call needs to be placed by chancellor or president, director of athletics, senior woman administrator, faculty athletics representative or senior compliance officer.  Conference contact.  Every conference has an AMA contact.  Conference office establishes expectations for use of contact.

23. Is the Issue Interpretive?  An issue is not interpretive if:  The plain meaning of the legislation is clear on its face;  The legislative history clearly addresses the situation;  Legislative history includes intent and rationale; OR  Published official interpretation clearly addresses the situation.

24. The Issue is Not Interpretive  If the issue is not interpretive:  Staff answers the question.  Staff is not “interpreting” the legislation.

25. Students-First Philosophy  Considers impact on all student-athletes.  Keeps student-athlete at center of decision-making process.  Requires obtaining as much information as possible.  Case-by-case review of fact-sensitive situations.

26. Process  Will intent behind rule be compromised?  Intended to address these facts?  Intended to apply to these individuals?  Does the legislation clearly address the situation?  Includes legislative history and interpretations.

27. Process  AMA staff has authority to issue binding staff interpretations.  Interpretations staff meets weekly.

28. The Division II Interpretations Process Response Types

29. Staff Confirmations  Not an “interpretation.”  The legislation or an official interpretation is responsive to the inquiry.  Published to reiterate application of legislation for future reference.  Binding on all members.  Actions contrary to staff confirmations are considered rules violations.

30. Staff Determinations  Is an “interpretation.”  Issued when:  An issue or fact situation is not addressed clearly by the legislation or an official interpretation; and  The issue is one of national significance.  Immediately binding on institution asking the question.  Binding on membership once approved by the Interpretations Subcommittee and published on LSDBi.

31. Staff Determinations (continued)  Prior actions by the institution asking the question that are contrary to the staff determination are not rules violations.  Actions by other institutions prior to publication of an Interpretations Subcommittee-approved staff determination are not rules violations.

32. Institutional Discretion  Institutional discretion:  AMA offers guidance.  Allows institution to make the call.  Provided when an issue:  Is not clearly addressed by the legislation or an official interpretation; and  Is not one of national significance.

33. The Division II Interpretations Process Appellate Opportunities

34. What If I Disagree?  If you disagree with an interpretive response from a staff member (e.g., on phones), ask for the issue to be presented at a staff meeting.  Staff may ask institution to provide additional information.  Explain basis for disagreeing with staff member.  Staff meets weekly.

35. Appealing Staff Interpretations  Staff interpretations can be appealed to Interpretations Subcommittee.  Institution must present an interpretive basis for the appeal.  Appeal must be filed by chancellor or president, director of athletics, senior woman administrator, faculty athletics representative or senior compliance officer. Constitution 5.4.1.2.1.1.  Policies and procedures are available on the committee’s page of www.ncaa.org.www.ncaa.org

36. Interpretations Subcommittee Decisions  Can agree or disagree with staff position.  May answer question without publishing an interpretation.  May publish an official interpretation.  May direct staff to publish a staff interpretation.  May forward recommendation to another committee.

37. Interpretations Subcommittee Decisions (continued)  Official interpretation.  Binding on all institutions, regardless of knowledge.  Confirmation.  Binding regardless of when the activity occurred.  Determination.  Binding from the publication date forward.

38. Appealing Subcommittee Interpretations  Interpretations Subcommittee interpretations can be appealed to the Management Council.  Policies and procedures are available on the Council’s page of www.ncaa.org.www.ncaa.org  Decision is final.  Constitution 5.4.1.2.1.2.

39. Example Institution seeks clarification from conference office on application of Bylaw 16.1.4.4. Conference sends the interpretive request to NCAA-AMA conference contact. AMA conference contact confirms that a student-athlete may not contribute to the purchase of awards.

40. Example (continued) Institution asks that the issue be taken to the full AMA interpretive staff. Full staff confirms the previous answer and application of the legislation. Institution appeals the interpretation to the Interpretations Subcommittee of the Legislation Committee.

41. Example (continued) Institution’s director of athletics submits the appellate letter which includes the interpretive argument. Subcommittee reviews the institution’s position and staff position and upholds the staff interpretation. Institution exercises the final appellate opportunity and submits the request to the Division II Management Council.

42. Example (continued) Management Council may only overturn committee’s decision under specific conditions. Management Council upholds staff interpretation. Provides relief based on widespread misapplication. Must adhere to the legislation going forward. Referral to Legislation Committee for possible amendment to the legislation.

43. The Division II Interpretations Process Effect on Waivers, Reinstatement and Enforcement

44. Consider Your Options  Before requesting reinstatement, submitting a self-report or requesting a waiver of NCAA legislation, what must the institution acknowledge?  That the legislation or interpretations apply to and prohibit the activity.  Once an institution requests reinstatement, submits a self-report or requests a waiver of NCAA legislation they are:  Precluded from requesting an interpretation of NCAA legislation at issue.  Exception for new information that could not reasonably have been ascertained prior to the request or submission.

45. Consider Your Options Facts. Research. Discussion. Issue Staff. Appeals? Interpretations Permissible. Waiver. Student-athlete reinstatement. Self-report. Outcome

46. Example  Institution calls the NCAA interpretive hotline to get an interpretation on whether or not one of its student-athletes has received an extra benefit.  The NCAA staff member indicates that, based on the facts provided, the student-athlete has received an extra benefit in violation of NCAA legislation.  The institution decides to confirm this answer with its NCAA conference contact.

47. Example (continued)  The NCAA conference contact provides the same interpretation (violation).  Institution proceeds with student-athlete reinstatement and receives the staff decision regarding reinstatement conditions.  Once the reinstatement decision is provided, the institution determines it disagrees with the staff interpretation of the rules and that a violation has not occurred.

48. Consider Your Options Facts. Research. Discussion. Issue Staff. Appeals? Interpretations Permissible. Waiver. Student-athlete reinstatement. Self-report. Outcome

49. Using The System To Your Advantage LSDBi

50. LSDBi Overview  Proposals.  Legislation.  Conducting a legislative history.  Interpretations.  Tips and tricks.  Educational Columns.  Dedicate the time and you will have success.

51. Proposals  LSDBi contains proposals back to the 1995 legislative cycle.  Use dates in italics at the end of each bylaw to search for history.  What does it mean when no dates appear?  How can you use the dates to determine what type of proposal amended the legislation?  Use the intent and rationale to assist in interpretive analysis.

52. Legislation  Each bylaw is connected to associated proposals, interpretations and educational columns.  Proposals that amended each bylaw can be used to develop the history.  Intent and rationale statements are key components to history.  Notice an error?  Please submit a change request!

53. Educational Columns and Hot Topics Educational ColumnsHot Topics Based on Legislation and official and staff interpretations applicable at the time of publication. Intent Assist membership with correct application of legislation and interpretations by providing clarifications, reminders and examples. Effect Binding on membership to the extent that the legislation and interpretations on which they are based remain applicable. May require self-reporting of violations. Frequency Posted on a regular basis to address a variety of issues. Posted as necessary to address timely issues.

54. QUESTIONS ?