The Committee on Infractions (“COI”) found violations of NCAA legislation in Oklahoma State University’s (“Oklahoma State” or “Institution”) men’s basketball program.  COI determined that this was a Level I-Standard case and prescribed penalties accordingly. This case centered on violations of NCAA bylaws governing recruiting inducements, extra benefits, unethical conduct and failure to cooperate.

Oklahoma State appealed some of the penalties prescribed by the Committee on Infractions. The appealed penalties are:

VI.1. Probation: Oklahoma State shall serve three years of probation from June 5, 2020, through June 4, 2023.

VI.2. Competition Penalty: During the 2020-21 academic year, the men’s basketball program shall end its season with the last regular-season contest and shall not participate in postseason conference or NCAA tournament competition.

VI.4. Scholarship reductions: Oklahoma State shall reduce by three the total number of grants-in-aid awarded in men’s basketball during the 2020-21 through 2022-23 academic years.

VI.5. Recruiting Restrictions:

b. Oklahoma State shall prohibit unofficial visits in men’s basketball for two weeks during the fall of 2020 and two weeks during the fall of 2021. (Self-imposed.) Because the Figure 19-1 penalty guidelines require a seven- to thirteen-week ban on official visits for Level I-Standard violations, the institution shall prohibit unofficial visits in men’s basketball for a total of three additional weeks during the fall of 2020, 2021 and/or 2022.

c. Oklahoma State shall prohibit telephonic recruiting communication in men’s basketball for a one-week period during the 2020-21 academic year. (Self-imposed.) Because the Figure 19-1 penalty guidelines require a seven- to thirteen-week ban on recruiting communications for Level I-Standard violations, the institution shall prohibit telephonic recruiting communication in men’s basketball for a total of six additional weeks during the term of probation.

d. Oklahoma State reduced the number of recruiting person days in men’s basketball by 12 during the 2019-20 academic year. (Self-imposed.) Because the Figure 19-1 penalty guidelines require a 17- to 33-day reduction in recruiting-person days for Level I-Standard violations, the institution shall reduce the number of recruiting-person days in men’s basketball by five during the 2020-21 academic year.

In reviewing the decision in this case, the Committee may vacate a penalty prescribed by COI only on a showing by the appealing party that the prescription of the penalty is 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.

The appellant made several arguments to support its position that the panel abused its discretion when it determined that the case was Level I for the appellant. First, the appellant argued that the panel erroneously classified Oklahoma State at the same level as the former associate head coach who engaged in unethical behavior. Specifically, the appellant stated that the former associate head coach’s personal and unethical conduct did not provide any advantages or benefits to the appellant and argued the level for the appellant should have been set as Level II. Second, the appellant claimed that “[t]here is no bylaw, COI Internal Operating Procedure (“IOP”), or other legislative provision that requires or even suggests the COI must classify individuals and institutions at the ‘same level.’ ” Third, the appellant argued there is no case precedent which supports a “same level” standard. The appellant identified four infractions cases on which the panel incorrectly relied.

The panel argued that holding the appellant responsible for the Level I violation is consistent with the violation structure found in NCAA Bylaw 19.1. The panel stated that the appellant is responsible for the actions of its staff members, and when a staff member commits a violation while employed by the institution, both the individual and appellant are responsible for the violation. The panel also stated that “[u]nder Bylaw 19.1, the level of a violation is based on the conduct, not the actor.” The panel continued to say that the conduct meets the definition of a Level I or Level II violation, but it cannot meet both. The panel noted that it followed the legislative intention when it prescribed penalties for the individual at the highest end of the Level I range, while penalizing the appellant at the lowest end of the Level I-Standard range.

The Infractions Appeals Committee recognizes that the Association has established that the control and responsibility for the conduct of intercollegiate athletics rests with an institution. As a result of that responsibility, institutions will be held accountable for violations that occur due to the actions or inactions of their staff, coaches, administrators, etc. In this case, the appellant is being held accountable for violation A.2. The appellant put forth several arguments related to the assessment of the institution’s responsibility and the impact it should have on the level. However, the assessment of level is tied to the conduct, action or inaction, that resulted in a violation and not the specific circumstances of the parties.

NCAA Bylaws 19.1.1 and 19.1.2 define conduct which constitutes Level I and Level II violations. A Level I violation, a severe breach of conduct, is one or more violations that seriously undermine or threaten the integrity of the NCAA Collegiate Model. This includes any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit. Additionally, subparts (b) and (h) of

NCAA Bylaws 19.1.1 specifically identify unethical conduct and the intentional violation of NCAA legislation as behavior that may constitute a severe breach of conduct.

Violation A.2. is related to the former associate head coach’s unethical conduct of accepting “cash bribes in exchange for arranging meetings for financial advisors with a student-athlete and a student-athlete’s mother,” and knowingly providing “cash gifts to a student-athlete.” Such conduct is identified on subparts (b) and (h) of Bylaw 19.1.1, and therefore, the conduct is sufficient to establish violation A.2. as a Level I violation.

The level of a violation (e.g., Level I, Level II) is dictated by the conduct related to the violation and not the distinctions in the appellant’s circumstances or culpability. This is consistent with the findings in the University of Connecticut Committee on Infractions Decision (July 2, 2019), the University of South Florida Committee on Infractions Decision (September 19, 2017), the University of Alabama Committee on Infractions Decision (April 14, 2017) and the Saint Peter’s University Committee on Infractions Decision (February 2, 2016).  In each of those cases, for the violations for which both the institution and individual were culpable (e.g., extra benefit violations), the underlying violation was assessed at the same level by the Committee on Infractions panel. For violations that were only applicable to an individual (e.g., failure to cooperate), the level was assessed for only that individual. This resulted in the institution and individuals being assessed at different levels overall. For example, in the Connecticut (July 2, 2019) Committee on Infractions Decision, the extra benefit and countable athletically related activities (CARA) violations were found to be Level II violations for both the individual and institution, and similarly several Level III violations were found for both parties. The head coach had additional violations applicable to him, but not to the institution: head coach responsibility (Level II), unethical conduct (Level I) and failure to cooperate (Level I). When reviewing the totality of the violations to assess the overall level, the panel determined Connecticut’s violations to be Level II as all the violations applicable to the institution were Level II or III. The head coach’s violations were determined to be Level I as the violations applicable to him included Level I, II and III violations. In the current case, the underlying violation determined to be applicable to Oklahoma State was determined to be Level I, and because it is the only violation for which the institution is held accountable, the overall assessment of the case level must be Level I.

Party-specific circumstances and culpability do impact classification (i.e., aggravated, standard or mitigated) within the level of the case. Specifically, the application and weighing of the aggravating and mitigating factors to the respective parties is where the party-specific circumstances or culpability is accounted for in the process of establishing the classification of a case within the level.

For the above reasons, we find the panel did not abuse its discretion when determining that this was a Level I violation resulting in a Level I case for the appellant.

The appellant made three arguments to support its position that the panel abused its discretion by failing to consider and weigh material factors. First, the appellant argued that the panel erroneously assigned too much weight to the aggravating factors in NCAA Bylaws 19.9.3-(b) and -(h). Second, the appellant argued that the Committee on Infractions erroneously assigned too little weight to mitigating factors in NCAA Bylaws 19.9.4-(b) and -(d). Finally, the appellant argued that the panel failed to weigh other factors warranting a lower penalty range including appellant’s responsibility when compared to other Level I cases and that the former associate head coach was motivated by personal gain.

In response, the panel argued that it properly exercised its discretion when it considered and weighed aggravating and mitigating factors. Specifically, the panel stated that it applied two aggravating factors and one mitigating factor in agreement with the appellant. Additionally, the panel applied another mitigating factor which the enforcement staff did not support and declined to apply aggravating factors that have been applied to institutions in similar precedent cases. The panel stated that application of the two aggravating factors was “straightforward and unremarkable” and that those factors were provided normal weight. As related to the two mitigating factors, the panel argued the factors were given normal weight and there were no grounds for providing extra weight. Further, the panel did not find that there were “limited and unique circumstances” warranting the application of the mitigating factor in NCAA Bylaw 19.9.4-(i) in this case.

The final report of the NCAA Working Group on Collegiate Model – Enforcement established the weighing of aggravating and mitigating factors as the process for the Committee on Infractions to refine distinctions between the most serious violations and the corresponding penalties in its decision-making process.8 However, the report did not discuss the methodology used in weighing these factors. NCAA legislation provides further guidance that the weighing of the factors is not simply an assessment of whether there are more of one type of factor (i.e., aggravating or mitigating) than the other type of factor.9 Given the relative silence in the legislation and its legislative history regarding the approach for weighing these factors, the language in the Committee on Infractions’ decision regarding the application and weighing of aggravating and mitigating factors in a particular case is critical in the Infractions Appeals Committee’s assessment of the factors when appealed.

As noted above, the appellant and the panel made arguments regarding what weight should have been applied to each factor. In its appeal submissions, the appellant argued the aggravating factors should have been provided less weight and the mitigating factors should have been provided more weight. In its submission, the panel stated that the applicable aggravating and mitigating factors were given “normal” weight by the panel.

In the Committee on Infractions decision for this case, the panel applied two aggravating factors (NCAA Bylaws 19.9.3-(b) and -(h)) and two mitigating factors (NCAA Bylaws 19.9.4-(b) and -(d)) to Oklahoma State. The panel provided its rationale, including relevant case precedent, for the application of these factors as well as discussed why certain other factors were not applied. However, there is little or no explanation regarding the panel’s analysis of how the factors were weighed, the weight assigned to the factors or the meaning of the weight determinations for them.

This makes it difficult for this committee to assess whether there was an abuse of discretion in the weighing of the aggravating and mitigating factors given the limited explanation in the decision describing the analysis for assigning a weight to the factors. It is important for the panel to articulate in the infractions decision its rationale for the application of aggravating and mitigating factors for a case, and also to explain its analysis of the weighing of the factors and the determination of the classification. This will assist us in our review during an appeal and will also help the membership’s understanding of the process for weighing the factors and create greater predictability within the infractions process.

Further, in this case, the panel noted that it considered the “unique facts and circumstances” of the case and determined that ascribing to the appellant the other aggravating factors applicable to the former associate head coach was not warranted. The panel did not specifically identify the “unique facts and circumstances” of this case in the decision. However, the panel acknowledged in the Committee on Infractions Response that it did not apply three aggravating factors to the appellant because they were triggered by the former associate head coach’s individual conduct. In the future, when the panel considers the “unique facts and circumstances” of a case and their impact on the application of aggravating and mitigating factors, it should identify and describe those “unique facts or circumstances.” This information is pertinent to this committee’s review of an appeal, and it provides the membership greater insight into the application of the factors and increases predictability of infractions outcomes.

While the Committee on Infractions’ Response to the appellant’s written appeal provides insight regarding the weight given to aggravating and mitigating factors, this committee was troubled by the limited information regarding the weighing of those factors in the panel’s infractions decision. This makes it difficult for the parties to the infractions case and this committee to understand the rationale for the weight provided to aggravating and mitigating factors. Even with the additional information provided in the Committee on Infractions’ Response, this committee struggled with the application of its abuse of discretion standard to the factors and determining the outcome of this appeal. In the future, where similar limited analysis is included in the panel’s decision, the Infractions Appeals Committee may not place as much weight on the information and rationale on the Committee on Infractions Response in assessing whether there has been an abuse of discretion. The analysis needs to be included in the panel’s initial decision, as the institution or involved party should not have to appeal to have clarity regarding the rationale for the application of the mitigating and aggravating factors.

As noted above, however, this committee may only overturn or vacate the application and weighing of mitigating or aggravating factors “on a showing by the appealing party that the panel abused its discretion.” In this case, the appellant did not demonstrate how the panel’s deficiencies in articulating how it weighed the aggravating and mitigating factors constitute an abuse of discretion by the panel. For each factor, the appellant and panel identified that there should be a different focus for or perspective of the weighing of the factors:

• For NCAA Bylaw 19.9.3-(b), the appellant argued the panel failed to consider that its 2015 infractions case involved a different sport program and different types of violations. Therefore, this factor should have been given minimal weight. The panel argued in its submission that it recognized that the 2015 case was different in severity and type, but said that normal weight for this factor was warranted because it was a recent case.

• For NCAA Bylaw 19.9.3-(h), the appellant argued that no other person of authority condoned, participated in or negligently disregarded the violation, and that the panel failed to consider that no compliance program could have detected or prevented actions by a “rogue employee.” It asserted this warranted minimal weight for this factor. The panel argued the former associate head coach was the person of authority who participated in the violations, which is contemplated by the plain language of the bylaw. Additionally, the panel pointed to the language in the decision that the authority of a coach derives from the institution and when the abuse of that authority results in violations, both the coach and institution bear responsibility. Therefore, the factor applied and was given normal weight.

• For NCAA Bylaw 19.9.4-(b), the appellant argued that the actions it took after learning of the criminal indictments, especially when compared to other institutions, warranted significant weight for this factor. The panel stated that it credited the appellant’s prompt acknowledgement of violations and acceptance of responsibility even though the appellant disagreed with the level. Further, the panel argued it would have been inappropriate for the panel to consider other pending cases, and there is no basis for applying additional weight to the factor. Therefore, this factor was given normal weight.

• For NCAA Bylaw 19.9.4-(d), the appellant argued it was in the top third of the violations reported by coaching staff members in the Big 12 Conference, and discussed its compliance staff’s educational efforts and its commitment to integrity in the athletics program. In response, the panel argued that the Committee on Infractions had identified a threshold of five violations per year for the application of this factor. Further, it noted that the reporting of 18 Level III violations per year demonstrated the appellant is meeting the membership’s expectations, but does not merit the application of additional weight. Normal weight was given to this factor.

NCAA legislation gives the panel discretion to determine whether mitigating and aggravating factors, included and not included in NCAA Bylaws 19.9.3 and 19.9.4, are present and how they are weighed in an infractions case. Generally, in the arguments put forward above, the appellant clearly disagreed with the weighing of the factors and provided its own perspective on how the factors should have been weighed. Such disagreements are not a sufficient demonstration to warrant a determination that the panel abused its discretion, and this committee may not substitute its judgement for that of the panel. That we may disagree with the panel’s application or weighing of the factors is not sufficient to find an abuse of discretion.

Therefore, for the above reasons, we do not find the appellant has demonstrated that the panel abused its discretion in the application and weighing of the aggravating and mitigating factors. Further, given that we have also determined that the panel did not abuse its discretion in the determination of the level of this case, the appealed penalties are affirmed.

The level and classification of the case for Oklahoma State are affirmed. Additionally, penalties VI.1., VI.2., VI.4. and VI.5. are affirmed.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.