(5/26/11 - BN) Given last night's news that the NCAA's appellate committee has reached a decision on USC's appeal of the findings and resulting sanctions stemming from the Reggie Bush era, we felt that rebumping this post from last summer discussing how the appeal would be considered and how the committee would likely come to a decision would be of interest to the community. The Committee on Appeals is expected to release its decision and report sometime this afternoon.
Now that the Bruins have completed their 2009-10 competitive season, it is time to greet the dead season. And with the recent words from such luminaries as Jay Bilas and Ted Miller on poor old SC, what better way to get started than to have a little more USC sanctions discussion. Rather than a detailed breakdown of the COI's report on USC, or an prediction of how the appeals committee will rule on USC's appeal - since we do not know all of the information that the committee and USC are working with, only the public report, such a post would be little more than speculation, I am looking at how the NCAA's appeals process works. Specifically, what the appeal committees have said, and how they have ruled over the years, from which you can begin to analyze what USC might be arguing in appeal, and what it would take for them to be successful.
When looking at the NCAA appeals process, the first thing to keep in mind - however much USC uses its allies in the media to relitigate the proceedings - is that this is an appeals process. The committee is not hearing the case de novo; rather, the committee is to determine whether the Committee on Infractions incorrectly found USC liable for violations of NCAA rules, and/or applied sanctions which are either more severe than are warranted by the violations, or are unfair to USC. The appeals committee has a delineated standard of review for examining the findings of the COI: Under the current NCAA Bylaws (as amended in 2008), the basis for granting an appeal is as follows (p.397):
188.8.131.52 Penalties. A penalty determined by the Committee on Infractions shall not be set aside on appeal except on a showing by the appealing party that the penalty is excessive such that it constitutes an abuse of discretion.
184.108.40.206 Findings. Findings of violations made by the Committee on Infractions shall not be set aside on appeal, except on a showing by the appealing party that:
(a) A finding is clearly contrary to the evidence presented to the Committee on Infractions;
(b) The facts found by the Committee on Infractions do not constitute a violation of the Association’s rules; or
(c) There was a procedural error and but for the error, the Committee on Infractions would not have made
the finding of violation.
The panel which heard the appeal of Alabama State in 2009 created a 5-part test to determine whether the COI abused its discretion in finding a violation and/or in imposing sanctions (p.23):
(1) was not based on a correct legal standard or was based on a misapprehension of the underlying substantive legal principles;
(2) was based on a clearly erroneous factual finding;
(3) failed to consider and weigh material factors;
(4) was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational; or
(5) was based in significant part on one or more irrelevant or improper factors.
In that case, the appeals committee found that in one of the main findings, the COI made "an erroneous factual determination", where the facts in the investagatory record clearly contradicted the COI's finding (p.23). The COI's failure to take into account Alabama State's extensive self-imposed penalties was also cited by the appeals committee; the impact of self-imposed sanctions to an offending program is a material factor, a factor that was not weighed by this COI (p.24). Both issues were found to be abuses of discretion on the part of the COI, which resulted in the appeals committee reducing the institution's period of NCAA probation from 5 years to 3 years. Since the bylaw was amended in 2008, this is the only COI case that has successfully been appealed (out of 11 appeals).
Florida State came before the appeals committee earlier this year, claiming an abuse of discretion by the COI in not adequately considering its cooperation with the NCAA in formulating sanctions. While the appellate panel expressed concern that the COI did not engage in this discussion in its report, it weighed the failure to adequately discuss institutional cooperation with the aggravating factors present in that case - "the nature, number, scope and seriousness of the violations" by FSU. After looking at these factors together, the COI was found not to have abused its discretion.
When looking at the outcome of prior appeals filed with the appeals committee, changes in NCAA bylaws must be considered, in addition to paying attention to the variance in facts underpinning each case. As noted above, In 2008 the NCAA amended a portion of its bylaws dealing with COI appeals - Bylaw 220.127.116.11. Under the pre-2008 standard of review, an appealing institution had a much easier standard to meet to have a COI finding reversed (excerpted from the Ole Miss appeals committee report, p.10):
"A showing that there was some information that might have supported a contrary result will not be sufficient to warrant setting aside a finding nor will a showing that such information might have outweighed the information on which the committee based a finding. The Infractions Appeals Committee . . . will set aside a finding only on a showing that information that might have supported a contrary result clearly outweighed the information on which the Committee on Infractions based the finding.
In plain language, this means that under the old rules, the appealing institution only had to convince the appeals committee by a preponderance of the evidence (more likely than not) that the evidence available to the COI supported the institution's claim of non-violation. A penalty could be reversed on appeal if it was found to be "inappropriate based upon the evidence and circumstances". An LA Times article on the amendment suggested that the decision to amend the bylaw was motivated by a high rate of successful appeals lodged by violating institutions in the early to mid 2000's.
Being that the appeals committee will not conduct a fresh hearing, the appeals process generally does not allow new evidence to be presented. The standard for allowing an institution to present new evidence during the appeals process is that the evidence must be such that could not have reasonably been ascertained prior ro the COI hearing (Bylaw 19.02.3). If the evidence is eligible for admission under that standard, then under Bylaw 32.10.5-(a), the appeals committee determines whether the new evidence could have materially affected any decision made by the COI. If so, then the case is remanded to the COI for review. Unless the requirements of both bylaws are met, new evidence is not entered into the enforcement record, and cannot be considered by the appeals committee.
A couple of notes relating to evidentiary credibility: When the credibility of evidence is at issue, the appeal committees have repeatedly cited that the Committee on Infractions determines the credibility of evidence (Oklahoma, p.6 for example). The NCAA has previously dealt with a case where both a coach accused of violating NCAA rules, as well as the key accuser have credibility defecits (hints of McNair). In 2004, part of the NCAA's case against Georgia Men's Basketball program involved claims by a former player against then-assistant coach Jim Harrick Jr. Georgia and Harrick cited issues in the former player's backgorund which questioned his credibility. After examining the enforcement staff's record, the COI also found that Harrick Jr had a lack of credibility. Faced with this, the COI used information provided by 3rd persons whose credibility was not at issue, and documentary and other circumstantial evidence consistant with that testimony that conflcited with that of the coach. The COI reviewed all such information in assessing whether it supported the allegations (p.3).
Before finishing, here are notes on a couple particular aspects of USC's sanctions that are likely integral to their appeal regarding the severity of the sanctions imposed.
During the appeal of the 1994 Ole Miss infraction report, the subject of scholarship reductions was raised by the institution. Specifically the mid-to-long term effect of significant scholarship cuts on an athletic program and whether this should be a factor in the imposition of such a sanction (p.19). Ole Miss cited NCAA bylaw 19.01.1, which states that "an important consideration in imposing penalties is to provide fairness to uninvolved student-athletes, coaches, administrators, competitors and other institutions.", in attempting appeal a penalty which included a loss of 12 scholarships/year for 2 years in football (a loss of 24 scholarships in total) by citing an undue serious impact on innocent student-athletes, coaches and recruits who did nothing wrong. The Appeals committee noted that the scholarship reduction was scheduled so that Ole Miss could return to its pre-sanction scholarship levels by the 1998 or 1999 season (4-5 years after the COI released its report), and that this timeframe coincided with the duration of the institution's term of probation.
The appeals committee did not phrase this as a rule, nor did it give any hint that a scholarship cut that posed a longer-term effect would be invalidated, either under 19.10.1 or under another bylaw. It seems likely that a scholarship reduction that is structured to allow the targeted program to return to its pre-sanction scholarship count at the end of its time under heightened NCAA scrutiny would be upheld on appeal as relating to inherent severity of sanctions. It is uncertain whether a longer-acting sanction would be acceptable to the appeals committee.
When looking at the Ole Miss ruling, keep in mind that the appeals committee did not say "full strength", but that the football program would return to its pre-sanction scholarship count. I take this to mean that if a program was not maxed out on scholarships when sanctions are imposed (or take affect, after appeal), that the question is not how long the sanctioned program will take to restore a full complement of scholarship players, but how long it will take to return to the number of scholarships in use when the sanctions were imposed. For example, if USC is currently using 78 of its allotted 85 scholarships (note, that is not intended to be an accurate current count) , the issue under Ole Miss would be whether USC football can return to using 78 scholarships at the end of year 4 or 5. The COI's report on USC's violations of NCAA rules included the imposition of a significant loss of scholarships to the football program; 10/year (30 total). Others have attempted to figure out what the extended effect of the COI's scholarship cut will be; I'll stay out of that for the moment, but to say that it is something to keep an eye on as the appeals process goes on.
Cooperation and Corrective Actions
One of the issues contributing to the strong level of sanctions imposed on USC that is not getting much play in current media coverage is the level of cooperation which was provided by USC to the NCAA investigation.
Section 19.01.3 of the current NCAA Bylaws (at page 289) describe a member institution's responsibility to cooperate with the NCAA's enforcement program.
All representatives of member institutions shall cooperate fully with the NCAA enforcement staff, Committee on Infractions, Infractions Appeals Committee and Board of Directors to further the objectives of the Association and its enforcement program. The enforcement policies and procedures are an essential part of the intercollegiate athletics program of each member institution and require full and complete disclosure by all institutional representatives of any relevant information requested by the NCAA enforcement staff, Committee on Infractions or Infractions Appeals Committee during the course of an inquiry.
The NCAA requires member institutions to provide "full and complete disclosure" by all representatives of an institution upon request by the NCAA staff during the course of an infractions investigation, or during the appeals process (if a school decides to appeal a COI finding). While this describes the base level of cooperation required of member institutions during an investigation, the appeals committee which heard the Ole Miss appeal created a hierarchy of institutional cooperation, detailing the degrees of cooperation that an institution could provide to the NCAA, and the mitigating effect - if any - that those degrees of cooperation call for.
Where an institution cooperates only to the extent necessary to meet its basic membership obligation, its conduct does not warrant special consideration in determining or imposing penalties. However, where an institution fully accepts its membership obligations and makes every effort to participate in and assist the enforcement process, its conduct must be a significant factor in determining and imposing penalties.
The Ole Miss committee went on to describe the NCAA's policy interest in encouraging the leaders of member institutions to open up to the enforcement process, particularly in the face of competing institutional actors who would use their own influence to block such cooperation. However, other factors arising from an investigation, such as repeat offender status, and similarities to earlier violations by the institution can outweigh even 'commendable' cooperation by an institution in a decision not to mitigate penalties.
The appellate committees in several other cases have discussed particular acts of cooperation which may contribute to cooperation worthy of mitigating sanctions: In the Oklahoma football case (involving then-QB Rhett Bomar and two other players), the appeals committee noted the immediate response of the university to the allegations of violations by its players, both in dismissing the players from the team, as well as in conducting its own investigation and cooperating with the NCAA, which played a major part in uncovering the severity of the violations themselves; acts which were not taken into account by the COI. The committee which heard the 2004 appeal by the University of Georgia regarding violations by its men's basketball program (Harrick Jr) cited full cooperation by the university with the NCAA investigation, as well as a thorough self-investigation by the institution upon learning of the allegations of violations via media reports, followed by self-imposition of sanctions and implementing corrective actions aimed to prevent the reoccurance of similar violations. Going further back in time, the infractions committee panel that imposed the Death Penalty on SMU cited cooperation "far beyond what could be fairly expected" by the school's faculty athletic's director as a factor that could have resulted in less severe penalties; as it was, that cooperation was cited as a key factor in not imposing the most draconian sections of the death penalty on the institution (now Bylaw 18.104.22.168.2 (b) and (c)).
In more recent appeals committee decisions, Alabama's most recent date with the NCAA led to further comments on cooperation. Here, Alabama questioned the level of consideration given by the COI to the institution's cooperation with the NCAA investigation. The appeals committee found that a statement by the COI in its report regarding an institution's level of cooperation in the investigation is by itself an adequate consideration of cooperation. An institution may diagree with the COI's conclusions on the substance of cooperation, but the institution must meet the current standard of 'abuse of discretion' in order to successfully challenge such a finding. Alabama State did successfully challenge a COI finding regarding cooperation; in that case, the institution was able to use the record of the investigation to show that the institution engaged in substantial activity during the course of the NCAA investigation, when the COI had stated that the institution had engaged in 'little to no activity' during this multi-year investigation. "Substantial activity" by Alabama State included conducting approximately 100 recorded interviews; the collection, review and analysis of over 50,000 documents relating to the case, and responding to multiple requests for information by NCAA investigators (p.23). Florida State 's appeal raised the COI's failure to discuss the level of its cooperation during the NCAA investigation; the appeals committee noted that cooperation is but one factor in deciding upon sanctions, and while it strongly urged future COI's to fully discuss the level of cooperation given by target schools and the resulting sanctions, that the failure to provide such a detailed discussion alone is not sufficient for a successful appeal.
In the USC infractions report, the COI found that the institution had met the basic NCAA standard for cooperation with an ongoing investigation, but that when taken together with the overall conduct of the institution and some of its employees, that the level of cooperation did not rise to a level worthy of mitigating sanctions (p.57). While USC can argue that it was faced a series of sancitons among the most severe in recent NCAA history, the appeals committee will also consider the COI's judgment of USC's cooperation with the investigation in the severity (or the lack of mitigation) of the penalties imposed.