Head Coach Liability Under NCAA Rules and the Responsible Corporate Officer Doctrine
In the business world, CEOs and other corporate officers generally may be held personally responsible criminally or civilly only for actions in which they have personally engaged. But that’s not always the case. In some circumstances, corporate officers may be held strictly liable for a civil or even criminal violation. For example, under the controversial responsible corporate officer (RCO) doctrine, a corporate officer may be held criminally liable for corporate violations that affect public health and well-being simply because the officer had the authority to prevent the unlawful conduct and failed to do so. Whether the officer participated in the unlawful activity, knew about it, or even prohibited it is irrelevant. The mere fact that the officer had, “by reason of his position within the organization, responsibility and authority either to prevent . . ., or promptly to correct, the violation complained of, and that he failed to do so” is sufficient to establish personal liability for the crime.[1] Though controversial and fairly draconian, the RCO doctrine seeks to incentivize—by the threat of criminal liability—corporate officers to implement and actively oversee effective compliance measures within his or her organization.
College football head coaches are often referred to as the “CEO” of their school’s football program. And when it comes to a head coach’s responsibility for NCAA violations, the NCAA now applies a strict liability theory similar to the RCO doctrine, whereby a coach’s knowledge of, or participation in, conduct that violates NCAA regulations is completely irrelevant.
A review of several changes to the NCAA bylaws reveals how the NCAA has steadily moved toward adopting this harsh standard. In 2005, the NCAA first adopted a bylaw titled “Responsibility of Head Coach,” which stated:
It shall be the responsibility of an institution’s head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach.[2]
In October 2012, the relevant bylaw was amended to read:
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. An institution’s 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.[3]
Nearly two years later, in August 2014, the NCAA amended this bylaw again, broadening it by making the head coach responsible for the actions of not only “all assistant coaches and administrators . . .” but “all institutional staff members . . . .”[4]
Finally, the NCAA amended this bylaw last August, which took effect on January 1, 2023. In its current form, bylaw 11.1.1.1 states:
An institution's head coach shall be held responsible for the head coach's actions and the actions of all institutional staff members who report, directly or indirectly, to the head coach. In order to assist the NCAA Division I Committee on Infractions in penalty deliberations, the enforcement staff will gather information regarding whether the head coach promoted an atmosphere of compliance within the program and monitored the activities of all institutional staff members involved with the program who report, directly or indirectly, to the coach.[5]
Over time, the NCAA’s changes have clearly broadened the liability that may be imposed upon a head coach for actions of third parties within his or her program. But the NCAA’s latest amendment in particular includes two significant changes. First, under the pre-2023 version, a head coach was only “presumed to be responsible” for the actions of staff members that report to him or her. This language left open the possibility that the “presumption” of responsibility could be rebutted by evidence demonstrating why the head coach should not be held responsible for a staff member’s misconduct. The 2023 version of the bylaw, however, leaves no room for rebuttal, stating clearly that a head coach “shall be held responsible” for the actions of all staff members that report to him or her. In effect, the new bylaw imposes strict liability on a head coach for the actions of all institutional staff members that report to him or her.
Second, the updated bylaw arguably modifies (or clarifies) the purpose for which a head coach’s efforts to create an atmosphere of compliance will be considered. Under the previous version, the language in the bylaw created a separate duty for a head coach to promote an atmosphere of compliance and to monitor staff members within the program (“head coach shall promote an atmosphere of compliance” and “shall monitor the activities . . . .”). The amended language, however, appears to limit the consideration of whether or not a head coach promoted compliance and/or monitored his program to penalty determinations only. This interpretation is consistent with the 2023 bylaw’s imposition of strict liability on head coaches—after all, if a head coach is strictly liable for the actions of his or her staff members, then any efforts taken by the coach to implement compliance measures would be completely irrelevant to a determination of liability. Those efforts would, however, be relevant to any penalty imposed by the Committee, as the updated language makes clear.
This change by the NCAA does not come as welcome news to Jim Harbaugh, head coach of the Michigan Wolverines football team, which is currently under investigation for allegations relating to sign-stealing. Michigan is accused of violating two rules: (1) NCAA bylaw 11.6.1, which prohibits “off-campus, in-person scouting of future opponents (in the same season)” and (2) Section 4.11(h) of the NCAA Football Rulebook, which prohibits “any attempt to record, either through audio or video means, any signals given by an opposing player, coach or other team personnel.” Harbaugh has maintained that he had no knowledge of the alleged sign stealing, nor has he directed anyone on his staff to engage in such activity. But based on the strict liability standard imposed by NCAA bylaw 11.1.1.1, Harbaugh could be held accountable regardless of whether he was involved in the alleged wrongdoing.
So, for everyone wondering whether Harbaugh was involved or how much he knew about the alleged sign-stealing operation—the reality is, it doesn’t matter whether he knew anything at all, at least from an NCAA violation standpoint. If Michigan goes down, Harbaugh does too.
Alec McNiff (Twitter: @Alec_McNiff) is currently completing a federal district court clerkship after
spending a year as a litigation associate at a major law firm. Alec earned his J.D. from
University of Michigan Law School and holds a business degree from University of Southern
California.
[1] United States v. Park, 421 U.S. 658, 673-74 (1975). [2] NCAA Division I Manual, 11.1.2.1 (2005-06). [3] NCAA Division I Manual, 11.1.1.1 (2013-14) (emphasis added). [4] NCAA Division I Manual, 11.1.1.1 (2015-16) (emphasis added). [5] NCAA Division I Manual, 11.1.1.1 (2023-24) (emphasis added).
