NCAA appeal report on Georgia Tech

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. 8)

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. 8)

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

54 comments Add your comment

GT fan

March 9th, 2012
2:22 pm

GT08

March 9th, 2012
2:44 pm

Flowery Branch Yellow Jacket

March 9th, 2012
2:59 pm

As much as I like D. Rad, it’s apparent that the NCAA doesn’t share my opinion of him. Whether from lack of experience, inadequate counsel, or simply a willingness to “roll the dice”, our A.D. made some unwise decisions by 1) failing to adequately communicate with the President and the NCAA, and 2) choosing to communicate with CPJ in direct violation of the NCAA’s instructions. I don’t know that D. Rad’s decisions and subsequent actions are sufficient to require his removal from office, but they probably at least merit some type of disciplinary action. It’s a shame that the student-athletes will suffer the loss of their title as a result of this.

Flowery Branch Yellow Jacket

March 9th, 2012
2:59 pm

As much as I like D. Rad, it’s apparent that the NCAA doesn’t share my opinion of him. Whether from lack of experience, inadequate counsel, or simply a willingness to “roll the dice”, our A.D. made some unwise decisions by 1) failing to adequately communicate with the President and the NCAA, and 2) choosing to communicate with CPJ in direct violation of the NCAA’s instructions. I don’t know that D. Rad’s decisions and subsequent actions are sufficient to require his removal from office, but they probably at least merit some type of disciplinary action. It’s a shame that the student-athletes will suffer the loss of their title as a result of this.

wayxbulldawg

March 9th, 2012
3:10 pm

patrick

March 9th, 2012
3:17 pm

And just to taunt us, the NCAA added little smileys with sunglasses in the report…. jerks

Atlantan

March 9th, 2012
3:18 pm

NCAA must be closely related to the Obama regime….. pretty much run the same way. Rules are arbitrary and based on the whims of the leaders…..

gtfanfrom1951

March 9th, 2012
3:22 pm

Its BS any form

asdf

March 9th, 2012
3:27 pm

When all of those employed by the ncaa are making under 6 figures, I’ll stop considering them the hypocritical champions of amateurism.

FL Jacket

March 9th, 2012
3:31 pm

The punishment is not fitting the crime here…

swarmi

March 9th, 2012
3:33 pm

D Rad must cringe when reading the above.

not an atl

March 9th, 2012
3:38 pm

Instructions seemed specific (but also unrealistic…not tell the coach=WTF?). Did not have to like. Just had to follow or ask permission to tell others.

ty webb

March 9th, 2012
3:42 pm

FL Jacket

March 9th, 2012
3:57 pm

Facts of the case…

http://www.ajc.com/sports/georgia-tech/how-georgia-techs-ncaa-1020485.html

July 14, 2011: The NCAA releases the verdict. The infractions committee finds Thomas received preferential treatment when he accepted $312 worth of clothing but does not find the gift was agent-related, calling that a “close question.”

Huh? How is that preferential treatment then? If I’m a student athlete and I receive a PS3 from my Mom and Dad am I receiving preferential treatment?

If no agent-related issue was involved, and there was clearly no wrongdoing on Thomas’ part…how was playing him the final 3 games on 2009 gaining a competitive advantage?

Ronald

March 9th, 2012
3:58 pm

UGA = drunks. On and off the field.

jc

March 9th, 2012
4:22 pm

memmert@ncaa.org

NCAA PRESIDENT’S EMAIL ADDRESS

sports

March 9th, 2012
5:40 pm

It’s hard to believe this yellow bunch had the gall to appeal this blatant crime. It appears all know, is to put this institution on probation every few years…they got what they deserved.

Golden White

March 9th, 2012
6:51 pm

Who believes DRad did not know better? The institution’s argument for reinstatement of
the ACC title looks and sounds desperate [ like a drowning man clutching straws ] .
So now, I guess probation officially starts today.

On the other hand I ljke the job that Mr. Radakovich has done for the Institution and i’m
not one for kicking him to the curb. But when all of this first came to light I thought that this
was a serious err in judgment on his part. Because he does know better and gets paid
handsomely for it. It does appear that the dice were rolled and he lost. A colossal blunder
was made of his on doing and it should cost him something. I said on here last year that
it should cost him at least one years salary. If he can’t handle that along with a huge apology then he should move on. My 2 cents.

uga_alum_93

March 9th, 2012
9:12 pm

Typical AJC truncated report on Tech embarrasment (just like Ruben Houston). You mention nothing about the prior probationary period under Chan Gailey and that they should be considered a “repeat offender.” Just like with that probation, the Federal Indictment of Reuben Houston and now this coverup before the ACC Championship if this were UGA we would never hear the end of it. The AJC has to report it but the lack of indepth reporting in situations like these is laughable.

2HLLWGA

March 10th, 2012
12:20 am

This leads to an interesting problem – The NCAA has now said that if a violation occurs they can take anything away (games, championships, money). Next up is taking away wins for texting a recruit who then decides to enroll or setting up an offensive formation with a missing man where that recruit would go. I don’t think these were major violations, but they were worse than what Georgia Tech did and it gave the school an advantage in getting a recruit who was significant in winning ten games. In additiion the head coach knew about it and orchestrated it. Where does this stop?

Now to get on my soap box – I think that if the NCAA was serious about these being student atheltes, they would be required to list their major next to their GPA whenever their stats are displayed. I just came back from the ACC tournament and I am thinking on the board above the court:
Joe Smith
13.7 points per game
4.2 assists per game
Majoring in Home Economics
GPA = 1.7

Hal

March 10th, 2012
8:03 am

Did I miss something? Wasn’t this investigation about a football player or two? If these guys have personal problems off the field in dotting the i’s and crossing the t’s penalize them for that with a fine but don’t take it out on the football team. The NCAA is comparing apples to oranges.

superDawg

March 10th, 2012
8:42 am

and I thought you tekies were smart enough to follow instructions.tek must think the rules only apply to other folks.You got what you deserve.

Alabama Jack

March 10th, 2012
8:52 am

And the NCAA investigator went wee, wee, wee all the way. Dumbass.

Ga Text

March 10th, 2012
9:54 am

Why hasn’t Radakovich resigned?

Biff Pocoroba

March 10th, 2012
11:33 am

DRad spends millions for a new basketball areana when basketball interest is at an all time low and after he just hired a new coach that most people were down on. He brought in a volleyball coach from LSU that just produced the first losing season in a long time. He just gave Danny Hall another five years after another typical postseason collapse. There was an article this week about all of the great players he has recruited but it failed to mention that he has only won one game in Omaha since his first season. Even Perno has won more tournament games than Hall in a lot less time. DRad keeps renewing CPJ’s contract after big bowl failures because he is afraid that someone will hire him away. He didn’t learn anything from the Hewitt debacle. He ran off a lot of football season ticket holders with his new seating in the east stands that no one uses and with his cheap security team that he brought in that wouldn’t let people enter the stadium at their normal gates. He tried to leave for Tennessee until this scandal came up. The basketball team was put on probation twice under Hewitt and a third time right after he left, and DRad still paid him his full buyout instead of working out a deal. I think it is time for him to step away and let someone who can follow the rules come in and stop handing out bad contracts to mediocre coaches.

Supersize that order, mutt

March 10th, 2012
11:38 am

Biff, the only thing I would disagree with you on there is trying to work something out with Hewitt. I would imagine that if there were any way to work something out, he tried. But I don’t think legally he had a leg to stand on there.

Go Jackets!

March 10th, 2012
2:33 pm

So we need Bud Peterson to step up and rid us of DRad?

Biff Pocoroba

March 10th, 2012
2:37 pm

Baseball team looks ready for Danny’s annual postseason meltdown. Their defense looks as bad as I have ever seen it and they even lost to Georgia State this week. The softball team lost to Georgia State and is starting to fall apart after a couple of good wins to start the season. We know the golf team will be good and then lose to Augusta State in the tournament again. The tennis teams are struggling and not looking good now. This would be a good summer for DRad to step down and let someone take over and build Tech sports back up again to when it used to be fun to watch.

superDawg

March 10th, 2012
5:53 pm

Damn ya’ll is some CHEATING mo fo’s.

superDawg

March 10th, 2012
5:55 pm

Really?

March 11th, 2012
8:47 am

Text did not do enough wineing and dineing.

gt4ever

March 11th, 2012
1:54 pm

Sounds good to me Biff… I guess we have to start somewhere…. What a pathetic POS our athletics has become….

GTHD

March 12th, 2012
7:38 am

Still even now the NCAA doesn’t say the player was ineligible just that he might have been. So everybody is punished for some thing that happened that might have been improper. Now if the NCAA would have said he is most likely ineligible and you should declare him ineligible and seek reinstatement then I am willing to they would have declared him ineligible. But because the NCAA is too scared to make a decision and want everybody to read their small minds we all suffer. NCAA grow a pair and just tell people what you want it would make things easier.

juvenal

March 12th, 2012
9:15 am

fire any coach or ad that gets us probation of any kind……

Coolio

March 12th, 2012
9:33 am

Seems like they came down pretty hard on the Bees given the nature of the infraction. I wonder what they would have done if it had been USC or Ohio State. I guess Drad should have taken the “thank you sir, may I have another” approach.

The "aha" moment

March 12th, 2012
9:43 am

1) Johnson cannot recruit. Let’s see him start winning now without Gailey recruits.

2) Johnson cannot comply with NCAA rules. Playing academically ineligible athletes and talking over the investigation with the AD.

3) Johnson cannot contend that his program has met his standards of “playing for championships” since that lone ACC title is now stripped. You are back top 0-fer.

NOVAJacket

March 12th, 2012
12:47 pm

Of course Miami just did the exact same egregious violation of informing the coach and will get zippo. Comparing the underlying offense to anything Ohio State and UNC have done recently is beyond a travesty which is exactly what the NCAA is.

Gr8 2B aFuzzyB

March 12th, 2012
12:53 pm

Ken, what “facts” were unknown by the president when he decided to let Thomas play?

kc

March 12th, 2012
2:25 pm

4 years probation and vacation of ACC championship for a player who “may have been ineligible” per the ncaa’s language. Wow.

FL Jacket

March 12th, 2012
4:01 pm

AHA…go back to Norway

1) CPJ has won more with Gailey’s recruits than Gailey won with Gailey’s recruits. Pick a new dead horse please…

2) The AD (Dan Radakovich) initiated the illegal communication with CPJ. At the time, the NCAA and the ACC told GT that Thomas was eligible to play (completely obliterating the “not in good faith” argument).

3) Say whatever you want…It happened. We’re 2009 ACC Football Champions. The player wasn’t ineligible…and wasn’t receiving a payment from an agent. Tech got punished because of adminstrative mistakes in the AD’s office over a dispute with the NCAA over $312 of still-tagged and returned merchandise.

Anything other than what is written here is not fact…

jarvis

March 12th, 2012
5:02 pm

You got hosed. No two ways about it. Punishment didn’t fit the crime.

I do hear that you guys get to keep the 2008 UGA victory rings though…so that’s something.

A

March 12th, 2012
5:03 pm

What a joke unc gets just one year ban. Even stewart mandel expect more

North Carolina: If any program’s fans should be shaking after Tuesday’s ruling, it’s the Tar Heels’. UNC went before the Committee in October, and its verdict is expected shortly. When its Notice of Allegations came out this summer, fans hung their hopes for a lenient sentence on the following facts: 1) It avoided the dreaded Lack of Institutional Control charge, receiving Failure to Monitor instead; and 2) The school was proactive, suspending players itself as soon as allegations of misconduct arose prior to the 2010 season.

Well, Ohio State was also charged with Failure to Monitor. It self-reported every violation in Tuesday’s report, preemptively fired Tressel, disassociated Pryor and DiGeronimo and self-imposed several penalties — and still it got hit with a bowl ban. North Carolina should expect even worse, considering its case is wider in scope and involves two of the NCAA’s biggest no-nos — academic fraud and agent violations. I’d expect a two-year bowl ban and at least one docked scholarship for every player who received impermissible benefits or improper academic help.

Read more: http://sportsillustrated.cnn.com/2011/writers/stewart_mandel/12/20/future.ncaa.penalties/index.html#ixzz1owDnKoen

John

March 13th, 2012
5:51 am

Its nice to know how the AJC left out the part where the investigator for the NCAA is a University of North Carolina graduate and former football player from there who had his rear-end handed to him twice the two years he started. Not to mention the fact that Ga Tech has DOMINATED the Tar Holes for the past 17 years as well.

This schmuck spent a whole week and couldn’t find anything really wrong other than the GT staff refusing to obey impossible “demands” from a punk investigator with an ax to grind at a conference rival that has embarrassed his team year after year. So he had to come up with “something.”

I just hope one of our players see him standing on the UNC sidelines and takes him out with a helmet on an out-of-bounds play.

65dawg

March 13th, 2012
7:25 am

Where TECH screwed up was by not contending that the player’s dad received the personal gear, BUT the player knew nothing about it!!! You gotta learn to be smart like some of our SEC schools when it comes to cheating!

superBee

March 13th, 2012
7:28 am

You can’t do this to us we are Ga.Tech.We are smarter than they are.We are Ga.Tech.We did nothing wrong and even if we did we are too smart to get caught.

OK, you crybabies -

March 13th, 2012
9:42 am

UNC got hit pretty hard – which they deserved – so STFU about your “too harsh” punishment for knowingly helping to cover up you indiscretions

And, congratulations on getting the blog about Glen Rice and the grad asst closed – seems like the only people complaining about the “inequities” in the Branden Smith story being closed, but not the Glen Rice story, were Tech guys – and then the blog gets locked…

And, what is it with Tech b-ball players(Crittenden and, now, Rice) and guns?

superDawg

March 13th, 2012
11:14 am

Atlanta citizen

March 13th, 2012
12:58 pm

As a former employee of the GT athletic association, I am surprised it has taken this long for scandals to emerge. It will only be a matter of time before additional scandals come out about that place. The president needs to clear the entire house at the GTAA and start over from scratch.

Really?

March 13th, 2012
1:01 pm

I see the ajc buried the story about that thug rice jr in a gun battle with rival drug dealers and quickly closed comments about it. I was stunned they closed the comments on Smith’s wrongful arrest for misdemeanor pot but of course the follow up story today is full of ga text fans. Typical hypocrites from ga text and the ajc

Really?

March 13th, 2012
1:08 pm

The north avenue trade school is like one of those high schools ran by gangs in a bad movie. Too bad the coaches at ga text are part of the problem instead of being the solution. It’s embarassing to the entire state that on top of the lieing and cheatin scandal at ga text being in the headlines AGAIN, their best player after 4 probations LOL LOL is in a gun battle in front of a club.

ga text is the only cesspool in the world that also issues degrees.