The following are excerpts from the NCAA infractions appeals committee report. For the story. on the NCAA turning down Georgia Tech’s appeal, read here.
Regarding Georgia Tech’s appeal of the failure to cooperate with the NCAA enforcement staff in its investigation.
The basis of the Committee on Infractions finding of violation of Bylaw 32.1.4 lies in the instructions given by the enforcement staff to the institution’s director of compliance. In order to protect the integrity of the ongoing investigation into this matter, the director of compliance was instructed that information concerning this matter could only be shared with the institution’s president and director of athletics. It appears the director of compliance did follow these instructions and, in fact, relayed these instructions to both the president and the director of athletics.
However, the director of athletics did not follow these instructions and discussed the matter with the institution’s head football coach, who in turn shared information with one of the student-athletes who was a subject of this investigation and was scheduled to be interviewed. (Committee on Infractions Report Page No.
While the institution admits that it violated the instructions of the enforcement staff, it contends that this violation should be overlooked for a number of reasons. First, the institution suggests that the working relationship between the director of athletics and the head football coach would be harmed if the director of athletics failed to inform the head football coach and the head football coach later found out that the director of athletics had knowledge of this matter and failed to inform him. (Written Appeal Page Nos. 18-19)
While this point might well be true, it does not remove the fact that the director of athletics’ action of informing the head football coach was in direct violation of the restriction imposed by the NCAA staff. If the director of athletics felt it was important to inform the head football coach, he could have discussed this matter with the enforcement staff and his own institution president before willingly violating the instruction of the enforcement staff.
In addition, it must be recognized that the director of athletics’ failure to comply with these instructions actually resulted in the head football coach having a discussion with one of the student-athletes who was subject of this investigation and was scheduled to be interviewed by the enforcement staff.
Georgia Tech also suggests that the director of athletics’ decision to inform the head football coach was proper since in a prior investigation, unrelated to this matter, the director of athletics was able to speak to his head coach. (Written Appeal Page No. 19)
Each case stands on its own merits and has its own limitations and instructions. The enforcement staff was perfectly clear on who could be brought into the fold at the institution – the president and the director of athletics. The director of athletics had every opportunity to consult with the NCAA staff and check to see if this situation was similar or different than the prior one. Finally, the institution contends that this failure to follow the instructions should be dismissed since it really did not affect the outcome of the investigation. (Written Appeal Page Nos. 19-20) This is the “no harm no foul” argument.
First, it is not clear that it did not have any effect on the outcome but most important, that is not the essence of the requirement to cooperate. There is not room to allow one to fail to cooperate with the instruction of the investigation and then be allowed to be excused for that behavior if after the fact, one can allege that the failure to cooperate had no bearing on the matter. Cooperation is not conditional.
The institution does not allege that there was any procedural error and the Infractions Appeals Committee does not find that the decision of the Committee on Infractions is contrary to the evidence presented to the committee. In addition, the Infractions Appeals Committee believes that facts found by the Committee on Infractions constitute a violation of Bylaw 32.1.4.
On the failure to meet the conditions and obligations of membership:
This issue turns on Georgia Tech’s decision not to withhold from competition one of the student-athletes who was a subject of this investigation. The institution contends that its decision was based on the information that it had at the time of the decision, while the Committee on Infractions believes the institution should have declared the student-athlete in question ineligible and that by not doing so, had as its true motive allowing the student-athlete to play in one or more important football games. The institution denies this position and contends that it acted reasonable and in good faith. (Written Appeal Page No.
It is clear from the record that the enforcement staff did inform the institution that the student-athlete’s eligibility might be in jeopardy. (Committee on Infractions Report Page No. 6) The record is equally clear that the institution’s director of compliance did seek out guidance and direction from the Atlantic Coast Conference (ACC) office, which in essence cleared the student-athlete to compete. (Committee on Infractions Report Page No. 13)
This presents a difficult question. On one hand, we have to look at a situation where the NCAA has informed a member institution that it may have a student-athlete who is ineligible, while on the other hand we have to balance this with the steps the institution did take to determine if the student-athlete was in fact ineligible. The NCAA staff did not state to the institution that the student-athlete was ineligible or that the institution should declare him ineligible. The NCAA left that decision up to the institution. The institution sought out advice from its conference office and while the Committee on Infractions found that the institution did not give all of the facts to the conference office, it is clear that it did seek a determination.
While others might have handled this situation differently and declared the student-athlete ineligible and sought his reinstatement, it does not appear that this is the only way it could be handled or is handled. The institution had the power and the authority to declare this student-athlete ineligible and seek reinstatement, or it could allow him to compete and wait and see the outcome of the investigation. While the choice might not be the one others might make, it does not necessarily follow that the choice was one made with bad intentions.
The president of the institution was very clear by informing this committee that the decision to not declare the student-athlete ineligible was his and his alone. While we do not doubt that the president of the institution acted with good intentions, we are concerned that he acted with less than full knowledge. The evidence in this case suggests that members of the institution’s administration did not convey all of the necessary information about this situation to the president so that he could make an informed decision. The general counsel and other members of the institution’s team could have and should have been more thorough in briefing and informing the president about the issues surrounding this incident. While we cannot say that the failure to inform was done for the purpose of having the student-athlete play in one or more games, it is clear to us that there was a key failure to inform the president of important facts of this situation.
That failure put the president in a position of making a decision of eligibility without all of the significant facts pertinent to this case and the student-athlete’s eligibility. (Committee on Infractions hearing transcript Page Nos. 155, 216, 234, 240)
The standards for membership in the NCAA are many and to suggest that a member has failed to meet those standards, conditions and obligations is a serious matter. Based on the record and the testimony of the president of the institution, we believe he agrees and feels the same way. This is a case of a president who for lack of evidence to the contrary, relied on the advice and counsel of the individuals who knew or should have known the relevant rules.
The Infractions Appeals Committee recognizing the authority of the Committee on Infractions, finds that the Committee on Infractions finding of failure to meet the conditions and obligations of membership is not contrary to the evidence presented to the committee and does constitute a violation of the Association’s rules.
Regarding the vacated ACC title:
A penalty imposed by the Committee on Infractions may be set aside on appeal if the penalty is “excessive such that it constitutes an abuse of discretion”
As we stated in the Alabama State University case:
“…we conclude that an abuse of discretion in the imposition of a penalty
occurs if the penalty (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.”
[Alabama State University, public Infractions Appeals Committee Report, Page No. 23, June 30, 2009]
The institution has asked the Infractions Appeals Committee to overturn the vacation of records penalty imposed by the Committee on Infractions. The institution alleges that the requirement that it vacate all victories in which the student-athlete in question competed while ineligible is excessive and an abuse of discretion. Its argument centers on two points.
First, Georgia Tech contends it gained no competitive advantage by the student-athlete’s participation in the ACC championship. If it had declared the student-athlete ineligible and then sought reinstatement, the student-athlete would have only missed one game, a game in which the team actually lost prior to the ACC championship.
Following this logic, the game in which the team won and is the subject of this vacation order, which was the ACC Championship, would have been a game in which the student-athlete would have been eligible to play. The problem with this argument is that there is no guarantee that the student-athlete would have been reinstated, or that if reinstated, he would have been suspended for only one game. The institution had warnings that the student-athlete might be ineligible and by not declaring him ineligible, cannot now come back and suggest that it should be free of punishment because if he was ineligible, the penalty might have been less.
The decision to allow the student-athlete to participate in the three games was the decision of the institution. Now that it is clear that the institution’s decision proved to be incorrect, it is unfair for it to return and suggest that games in which the student-athlete competed should not be subject to penalty review.
The second point the institution raises calls our attention to the decision in the Southeast Missouri State University case. (Written Appeal Page Nos. 15-16) In that case, the Committee on Infractions and this committee identified a list of factors to look at in determining whether vacation was appropriate. The factors which were developed with guidance from decisions of the Infractions Appeals Committee, states that while the Committee on Infractions retains discretion to apply (or not apply) the vacation penalty under any circumstances it believes to be appropriate, the likelihood of such a penalty is significantly increased when any of the following aggravating factors are present:
1. Academic fraud;
2. Serious intentional violations;
3. Direct involvement of a coach or high-ranking school administrator;
4. A large number of violations;
5. Competition while academically ineligible;
6. Ineligible competition in a case that includes a finding of failure to monitor or a
lack of institutional control; or
7. When vacation of a similar penalty would be imposed if the underlying violations were secondary. (Southeast Missouri State University Public Infractions Report, June 18, 2008, Page Nos. 10-11).
The institution suggests that in the present case the Committee on Infractions imposed a penalty of vacating even with none of the above factors being present. The Committee on Infractions counters that at least two of the factors, serious intentional violation and direct involvement of a coach or high-ranking administrator, were in fact present. In addition, the Committee on Infractions suggests that the aggravating issue of the institution being less than cooperative should and could weigh in this equation.
In reviewing this, it must be stated that the factors listed in the Southeast Missouri State case should not be seen as the only factors in which vacating can be imposed. In fact, a close reading of that decision suggests that “the likelihood of such a penalty is significantly increased when any of the aggravating factors are present.” [Southeast Missouri State Committee on Infractions Report Page No. 10] This does not require that any of them be present.
Therefore, this committee does not have to decide if any of the factors actually were present, only if the Committee on Infractions’ penalty of vacating was excessive and abuse of its discretion. We do not so find and, therefore, uphold the penalty.
Thanks (and congratulations) for reading.
Ken Sugiura, Georgia Tech blog