Pushback Against The Deafening Trojan Whining

Bumped - Great points by Karl II, and not the only ones that Southern California is missing - BN eds

USC fans constantly complain about supposedly overly harsh penalties and unfairly losing the appeal.  Well, I am sick of hearing it.  Below are the arguments I hear the most and the reasons why I humbly believe they are wrong.

The sanctions are not fair. The athletic director, coaches and current players were not even at the school when the alleged violations occurred.

There are two problems with this argument.  First, the reason the school hired a new athletic director and coaches is because the last regime did such a piss poor job on compliance.  Pete Carroll jumped ship when he found out significant sanctions were coming down and Mike Garrett was fired for being arrogant and incompetent in his handling of the whole affair.  The new administration is a direct result of the bad behavior, not some unrelated coincidence.

Second, and more importantly, the timing of the imposition of sanctions is primarily due to the ineptitude/lack of investigative authority of the NCAA and USC’s early embracement of a tactic of non-cooperation.  The NCAA investigation lasted about four years.  Since the NCAA has no authority to compel testimony or production of documents (at least with respect persons who are not employed by member institutions), it had to sit on the sidelines and wait for evidence to be drawn out in the Bush civil litigation.  If USC was truly concerned about sanctions affecting players who were “in elementary and junior high school” when the infractions happened, then USC should have opened the Kimono and let the NCAA have unfettered access to all relevant evidence, including former players and agents.  I know-USC has no formal control over former players and agents (see above).  But it does have informal control.  USC lets former players use practice facilities, attend school functions, come back to school for their degree, stand on the sidelines during games, etc.  USC also gave (or used to give) agents significant access to facilities and players.  Threatening to take away these privileges at best would have led these people to sit for depositions or answer discovery and at worst would have shown the NCAA USC was doing everything it could to cooperate (even if these third parties continued to refuse to cooperate).

Instead, USC provided the minimum amount of access possible, and Reggie Bush and his lawyers stonewalled until a settlement was reached.  I don’t fault Bush in this regard-that is what many defendants in litigation choose to do.  USC, however, took the wrong approach.  An organization facing a governmental or regulatory investigation will always get the most favorable outcome by cooperating early and often throughout the investigation.  The appearance of cooperation in the eyes of the investigators is probably the single most important mitigating factor when discretionary decisions are made by investigators during an investigation.   USC blew that part of it and is at least partially responsible for the lengthy process.

The NCAA is arbitrary in its enforcement process.  If USC received a two year bowl ban and a loss of 30 scholarships, then Auburn should have gotten the death penalty.

Hey, no argument here.  Just because one institution was able to avoid an appropriate penalty when caught violating the rules, it does not mean that another institution should get such a break.  If this were true, it would be the exception that swallows the rule and there would be no need for any rules.  The error was not failing to cut USC a break; the error was giving a break to Auburn (if in fact it received a break).  Once credible evidence of Cam Newton’s father shopping his son’s services surfaced, Newton should have been declared ineligible and Auburn should have been disqualified.  At a minimum, Newton should have been disqualified. 

The other point here is that the NCAA investigation in all likelihood is not yet complete.  If new evidence of an infraction comes to light, the NCAA will certainly revisit the issue and could still rule Newton ineligible for the 2010 football season and/or take away some or all of Auburn’s 2010 victories.  Newton could also face pressure to return his Heisman trophy and we could end up with Bush II.  It is still too early to tell. 

By the way, the non-stop complaining by USC people about Ohio State is also premature.  The NCAA is surely investigating recent events and has not yet reached an enforcement decision.  If the NCAA gets all the way through the process, and if it fails to sanction Ohio State and/or Jim Tressel, then USC will have something to complain about.  Unless and until that happens, they should hold their collective tongues.

The NCAA has made the standard of review on appeal too high of a hurdle. Having to show an abuse of discretion is virtually impossible and no school can overcome it.

The NCAA changed the Bylaw applicable to appeals of decisions of the Committee on Infractions (COI) in 2008.  In order to overturn a COI decision, the Infractions Appeals Committee must find that penalties imposed by the COI were so excessive as to constitute an “abuse of discretion.”  Many Trojans have complained that this standard is impossible to meet. 

It is true that this standard of review is somewhat tough to overcome, but I believe there are sound policy reasons for having a high standard.  First, the change was approved by school presidents, so if USC did not like it, they should have spoken up during the amendment process.  Either they did not or if they did, they could not convince others to vote it down.  Either way, the rule change went through the legislative process and it is now the law of the NCAA land.  All member institutions have to work with the new rule; not just USC.

Second, the NCAA has limited investigatory resources.  The annual enforcement budget of the NCAA is not disclosed, but the NCAA has 38 investigators to police over 1,281 member institutions (this includes all divisions and sports).  Once the NCAA commits to and completes an investigation, the results must be given weight.  This encourages targets to cooperate at early stages and put their best arguments forward during the investigation.  Otherwise, schools will be incentivized to not cooperate and do everything they can to block the investigation in the hopes that the COI does not receive enough evidence to find an infraction, and if the COI does get lucky enough to find enough evidence of misdeeds, the school can simply throw hundreds of thousands of dollars into an appeal and essentially get a second trial de novo.

Third, even though the standard of review is high, it is not unreasonable.  Pursuant to NCAA Bylaw 32.10.4.2, the following criteria may be used to show an abuse of discretion:     

(a) A finding is clearly contrary to the evidence presented to the COI;

(b) The facts found by the COI do not constitute a violation of the Association’s rules; or

(c) There was a procedural error and but for the error, the COI would not have made the finding of violation.

There is plenty of room here to argue a mistake was made. Did the facts not support the conclusion?  Assuming the finding of facts was accurate, did it not result in a violation?  Did the COI misinterpret the rules or apply the wrong penalties?  USC spent thousands of dollars on outside counsel to go against an underfunded and outmanned NCAA staff and the Infractions Appeal Committee still denied the appeal. 

The reality is USC did not like the factual findings and tried to obscure that dislike by arguing the standard of review is inherently unfair.

The USC case is not analogous to infractions committed by schools who received harsh penalties.  In those other cases, either coaches or boosters provided impermissible benefits to student athletes, while in the USC matter, agents provided benefits.

This argument completely ignores the brown paper bag full of cash that Tim Floyd (allegedly) handed to O.J. Mayo.  Even so, this argument also ignores a basic principle of the NCAA-that member institutions are responsible for ensuring compliance with the rules and promoting fair play.  After its four year investigation, the COI found that USC lacked institutional control:

When citing the lack of institutional control finding, the committee noted the university failed to heed clear warning signs; did not have proper procedures in place to monitor rules compliance; failed to regulate access to practice and facilities, including locker rooms; and in some instances failed to take a proactive stance or investigate concerns. As a result, three different individuals who triggered NCAA agent rules committed violations involving the former football and men's basketball student-athletes. (NCAA Press Release, dated June 10, 2010).

USC thought they figured out a way to cheat without being punished as cheaters by creating an environment where people not affiliated with the university would provide excess benefits, thereby giving the school plausible deniability.  If they kept the compliance department small, if the coaches purposefully looked the other way and didn’t ask questions about suspicious behavior and activities, if the school allowed anyone and everyone into the locker room and practice facilities (even, to their surprise, agents!), then USC could argue with a straight face that neither the school nor any of its boosters did anything wrong.

Another way to look at it is this.  Every time USC coaches or staff looked the other way when an agent came into the room, saw a guy driving a tricked out car, etc., they had to paint a 1 square foot box on the floor and avoid walking in the box.  By the time the NCAA was done with its investigation and all of the facts came to light, Pete Carroll and his staff were stuck in the corner with paint completely covering the floor and the exit was on the other side of the room.

The NCAA added penalties for lack of institutional control to address this very problem.  Schools don’t get to bury their heads in the sand and complain about being treated unfairly when they come up for air.  USC implicitly admitted this when they fired Mike Garrett and significantly increased their compliance staff.

USC got caught cheating.  Deal with it.  Pat Haden was a good hire and he looks like he is cleaning things up.  Lane Kiffin is a joke, but he will be gone after he has 3 or 4 poor seasons and they can hire a real coach.  UCLA is still stuck in a decade (plus) long self-imposed football nightmare that we cannot escape.  Hopefully we change that, but relatively speaking USC is still in better shape so please STOP YOUR INCESSANT COMPLAINING ABOUT THE NCAA.