It has been a long 7 months since the June afternoon when the NCAA announced its findings on the misconduct and wrongdoing inside Heritage Hall, and with all the hubub (or lack thereof from Morgan Center), time seems to be dragging even longer lately. Lost in our own football talk is that last week saw Southern Cal got its opportunity to formally appeal the findings and sanctions subjected from Bu$hgate to the NCAA's Infractions Appeal Committee, in a four hour hearing that the new USC President Max Nikias described as "good and fair". While officials from USC made their formal presentation to the committee a little over a week ago, a final decision, based upon that presentation as well as briefs and the records from the infractions committee is still several weeks away. The NCAA findings and resulting sanctions got plenty of play in the sports blogosphere; for those looking to learn more about the NCAA's process, take a look at my post from last summer touching on what USC has to look forward to.
In the appeal, Southern Cal is contesting a portion of the findings of the Committee on Infractions, and seeking a partial reduction in the sanctions levied against the football program. The odds of success under the current appeals framework are low, as even USC AD Pat Hayden acknowledged in an interview with the Daily News' Scott Wolf. Out of 11 appeals heard by the NCAA since a 2008 change to the process, just 1 has been successful. While such odds don't directly translate into how much or little chance a particular appeal will have, that figure does point to how difficult it is for a member school to successfully challenge the COI.
If their appeal of the COI's findings is successful, or if the severity of the sanctions imposed is found to be inconsistent with the violations found, USC is seeking to have the following sanctions modified: 1) The football program's postseason ban to be reduced from 2 years (2010 and 2011) to 1 year (2010), allowing the team to appear in a bowl game after the 2011 season, if otherwise eligible. And 2) The reduction in the number of new scholarships available for the football program to be modified, lowering the total scholarship reduction from a total of 30 over 3 years (10/year) to 15 over 3 years (5/year). Even if the appeal fails, USC could benefit from a delay in the imposition of the scholarship limits.
According to Yahoo Sports, if the appeals committee does not release its judgment by the end of the current signing period (April 1), the scholarship portion of the sanction will be stayed by 1 year - starting with the Fall 2012 incoming class, allowing SC to fortify with a full 25-member incoming class this fall. If the committee releases a finding confirming the COI's findings and sanctions before the end of March, presumably there will be a game of musical chairs among the current crop of recruits, leaving a couple of recruits to either find a new home for the fall, or enter the school as a greyshirt, extending their eligibility for a later year, but cutting into the already limited scholarship allotment that USC has for 2012.
The press release issued by USC at the time of filing the appeal stated that:
"The University recognizes that violations of NCAA rules did occur, especially involving impermissible benefits going to student athletes as well as their friends and families, from unscrupulous sports agents and sports marketers. And we take full responsibility for those violations given that they happened on our watch. However, we disagree with many of the findings in the report from the NCAA Committee on Infractions and assert that the penalties imposed are too severe for the violations identified and are inconsistent with precedent in similar cases,"
There are a couple of issues in there that the NCAA's Infractions appeal committee will have to consider in the coming weeks. In doing so, there is an established system of NCAA appellate analysis for its members to follow, as well as a series of precedent from past violators.
The important starting point - one which all too many SC fanboys as well as much of the media (which are not always mutually exclusive) seem to miss - is to consider what the appellate committee actually has the power to do, in terms of allowing new evidence supporting an appealing institution's claim, as well as to what extent the committee can revisit the work of the COI panel that considered the case - how it analyzed the evidence presented as well as how such was applied to come to a finding of responsibility and proper sanctions. In the post discussing the appeals process that I wrote last July, I discussed just how the appeals committee can overturn findings and/or penalties imposed by the COI, as described by the current NCAA bylaws, as well as precedent following the latest (2008) revision to the appeals procedure.
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:
Basically, that statement means that the appeals committee is not giving USC a second crack at arguing its case; they had their chance last year. What USC is able to do under the NCAA rules is to argue that the COI messed up in analyzing and applying the evidence that was presented against USC in the infractions process, and/or that the sanctions that were imposed were stricter than warranted given the violations found, or are otherwise unfair to the affected program. In terms of what types of errors - if found to be present by the appeals committee - justify granting (agreeing with) an appeal, the NCAA bylaws define the justifications as thus:
126.96.36.199 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.
188.8.131.52 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.
As mentioned above, since the 2008 revision of the NCAA's appellate rules, only 1 school has successfully waged an appeal. In that case, the appeals committee created a 5-part test to determine what constitutes an abuse of discretion by the COI in terms of applying sanctions as well as regarding a finding of violations:
(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 key findings against that institution (Alabama State), the COI's finding was in clear contradiction with the investigatory record, which was phrased as "an erroneous factual determination". Additionally, the COI in that case failed to consider an extensive level of self-imposed sanctions that the institution implemented in determining the sanctions to be levied. In Florida State's failed 2010 appeal, the appeals committee weighed the aggravating factors present in that case; "the nature, number, scope and seriousness of the violations" by FSU along with mistakes made by the COI in the original case in finding a lack of abuse of discretion.
In its argument that precedent does not support the COI's findings, USC must take into account the changes made to the bylaws regarding appeals; there is not a great deal of post-revision precedent, and in taking into account prior precedent, the changes to the bylaws must be taken into account, changes that would in many cases change the appellate findings.