The NCAA Committee on Infractions (“Committee” or “Panel” or “COI”) recently issued its findings and found that the University of Nebraska, Lincoln (“Institution” or “UN” or “Nebraska”) committed violations of NCAA legislation. The violations in this case arose out of payments to a former outside consultant, who later became a volunteer women’s gymnastics coach, by individual student-athletes for floor exercise choreography and by the Institution for floor exercise music through a surreptitious scheme arranged by the volunteer coach and the former head women’s gymnastics coach (head coach). NCAA bylaws permit individual gymnastics student-athletes to pay an outside consultant for the cost of floor exercise choreography, but only if the Institution is not involved in any way in arranging for the activity, institutional coaching staff members do not observe the activity and the activity does not occur at the Institution’s facility. Alternatively, institutions may use a paid or volunteer coach to create floor exercise choreography and music. However, neither the Institution nor a student-athlete may compensate a volunteer coach for floor exercise choreography or music.

Beginning in 2011, the volunteer coach, then an outside consultant, permissibly developed floor exercise choreography and music for use by certain women’s gymnastics student-athletes at the Nebraska. While the volunteer coach was acting as an outside consultant, the student-athletes permissibly compensated him for floor exercise choreography and Nebraska permissibly compensated him for floor exercise music design.

In 2014, the head coach encouraged the outside consultant to become a volunteer coach so he could assume a greater role with the women’s gymnastics program. As a volunteer coach, he would be able to instruct student-athletes in Nebraska facilities, which he was precluded from doing as an outside consultant. Further, the volunteer coach could bring his full expertise by coordinating with others on the Nebraska coaching staff as well as have a presence at practices and competitions. In September 2014, Nebraska named the outside consultant a volunteer coach.

Despite this new role, the women’s gymnastics student-athletes continued to pay the volunteer coach for floor exercise choreography. These student-athletes made direct payments to the volunteer coach of $300.00 per student-athlete, per year. However, because the volunteer coach was now a member of the coaching staff, this constituted impermissible compensation. The student-athletes did not realize this. Additionally, the head coach urged his associate coach to provide the volunteer coach with lodging at her home when the volunteer coach, who resided in New York City, traveled to Lincoln, Nebraska, for certain practices and competitions. Uncomfortable declining the head coach’s direction and unaware that the provision of lodging to a volunteer coach was impermissible, the associate coach provided lodging to the volunteer coach of approximately three weeks per year during his tenure as volunteer coach.

Further, the head coach and the volunteer coach devised an arrangement so the volunteer coach could continue to receive compensation from the institution for floor exercise music. To prevent Nebraska from detecting payments ultimately paid to the volunteer coach as impermissible compensation to a volunteer coach, the head coach and the volunteer coach coordinated with a third-party to submit invoices for floor exercise music to Nebraska from that third-party, not the volunteer coach. Specifically, in 2015, the volunteer coach submitted an invoice from a fictitious entity named “Fantasy Floor Music” and requested the check be made payable to an associate of the volunteer coach (the associate). In later years, the volunteer coach submitted invoices from the associate, still disguising that the payment was ultimately for the volunteer coach. Instead of submitting the Fantasy Floor Music and the associate’s invoices directly to the Institution via a purchase requisition form, as he had done in previous years with the volunteer coach invoices, the head coach paid the associate via a check from an account the head coach controlled and then requested reimbursement from the Institution using an employee nontravel expense voucher, allowing the associate to pay the volunteer coach.

Although Nebraska’s policies permitted reimbursement to the head coach via employee nontravel expense vouchers, the Institution’s preferred method of processing such transactions was by direct submission of the third-party invoices via a purchase requisition form. The Nebraska business office and, later, the senior woman administrator and women’s gymnastics sport supervisor, admonished the head coach to submit the third-party floor exercise music invoices directly to the Institution for payment. After the head coach expressed dissatisfaction with this request, Nebraska interviewed the head coach and others and uncovered the arrangement involving the volunteer coach, the head coach and the volunteer coach’s associate. The head coach and the volunteer coach were separated from employment with the women’s gymnastics program in October 2018.

This case was resolved through a negotiated resolution.

The Committee concluded that UN committed the following violations:

 Violations of NCAA Division I Manual Bylaws 11.01.5 (2014-15); 11.3.1, 11.3.2.2 and 11.7.6 (2014-15 through 2017-18); and 11.01.6 (2015-16 through 2017-18) (Level II)

The Institution, the head coach and NCAA enforcement staff agreed that from the 2014-15 through the 2017-18 academic years, the head coach and members of the women’s gymnastics program arranged for the volunteer coach to receive impermissible compensation and benefits, resulting in the women’s gymnastics program exceeding the permissible number of countable coaches. The total value of the impermissible compensation and benefits was approximately $33,600.00.

From the 2014-15 through 2017-18 academic years, the head coach used his camp and/or personal bank accounts to pay the volunteer coach via a fraudulent third-party for the women’s gymnastics team’s floor music. the head coach then sought reimbursement from the Institution for the payments by providing invoices from the fraudulent third party to conceal the volunteer coach’s involvement. The total value of the impermissible compensation was approximately $12,600.00. NCAA Bylaws 11.01.5 (2014-15); 11.3.1, 11.3.2.2 and 11.7.6 (2014-15 through 2017-18); and 11.01.6 (2015-16 through 2017-18).

From the 2014-15 through 2017-18 academic years, several women’s gymnastics student-athletes paid the volunteer coach for choreography instruction provided during counted practice time that they subsequently used in the floor exercise portion of intercollegiate competitions. The total value of the impermissible compensation was approximately $12,600.00. NCAA Bylaws 11.01.5 (2014-15); 11.3.1, 11.3.2.2 and 11.7.6 (2014-15 through 2017-18); and 11.01.6 (2015-16 through 2017-18).

From the 2014-15 through 2017-18 academic years, the head coach arranged for the associate women’s gymnastics coach to provide lodging to the volunteer coach when he was in the institution’s locale for practices and competition at no cost for approximately three weeks per year for a total of 12 weeks. The total value of the impermissible lodging was approximately $8,400.00. NCAA Bylaws 11.01.5 (2014-15); 11.3.1 and 11.7.6 (2014-15 through 2017-18); and 11.01.6 (2015-16 through 2017-18).

Violations of NCAA Division I Manual Bylaws 11.1.1.1 (2014-15 through 2017-18) (Level II)

The Institution, the head coach and NCAA enforcement staff agreed that from the 2014-15 through 2017-18 academic years, the head coach is presumed responsible for the violations detailed above and did not rebut the presumption of responsibility. Specifically, the head coach did not demonstrate that he promoted an atmosphere of compliance due to his personal involvement in the violations.

Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4

Aggravating Factors for the Institution

A history of Level I, Level II or major violations by the institution.  NCAA Bylaw 19.9.3-(b).

Multiple Level II violations.  NCAA Bylaw 19.9.3-(g).

Persons of authority (the head coach) condoned, participated in or negligently disregarded the violation or related wrongful conduct.  NCAA Bylaw 19.9.3-(h).

Mitigating Factors for the Institution

Prompt acknowledgement of the violation, acceptance of responsibility and imposition of meaningful corrective measures and/or penalties. NCAA Bylaw 19.9.4-(b).

An established history of self-reporting Level III or secondary violations NCAA Bylaw 19.9.4-(d).

Aggravating Factors for Head Coach

Violations were deliberate.  NCAA Bylaw 19.9.3-(f).

Multiple Level II violations.  NCAA Bylaw 19.9.3-(g).

Persons of authority (the head coach) condoned, participated in or negligently disregarded the violation or related wrongful conduct.  NCAA Bylaw 19.9.3-(h).

Conduct or circumstances demonstrating an abuse of a position of trust.  NCAA Bylaw 19.9.3-(j).

Intentional, willful or blatant disregard for the NCAA constitution and bylaws.  NCAA Bylaw 19.9.3-(m).

Mitigating Factors for Head Coach

The absence of prior conclusions of Level I, Level II or major violations committed by the involved individual.  NCAA Bylaw 19.9.4-(h).

Aggravating Factors for Volunteer Coach

Violations were deliberate.  NCAA Bylaw 19.9.3-(f).

Conduct intended to generate pecuniary gain for the involved individual.  NCAA Bylaw 19.9.3-(l).

Intentional, willful or blatant disregard for the NCAA constitution and bylaws.  NCAA Bylaw 19.9.3-(m).

Mitigating Factors for Volunteer Coach

The absence of prior conclusions of Level I, Level II or major violations committed by the involved individual.  NCAA Bylaw 19.9.4-(h).

As a result of the foregoing, the Committee penalized UN as follows:

1. Public reprimand and censure.
2. Probation: Two years of probation from April 28, 2020, through April 27, 2022.
3. Financial penalty: Nebraska shall pay a fine of $5,000 plus one percent of the budget for the women’s gymnastics program.
4. Reduction by one in the number of countable coaches for one year, which has already been imposed by the institution during the 2018-19 academic year.
5. Show-cause order: Show-cause order: the head coach was personally involved in arranging for impermissible compensation to a volunteer coach. Therefore, the head coach shall be subject to a three-year show-cause order from April 28, 2020, through April 27, 2023. Should the head coach become employed in an athletically related position at an NCAA member institution during the first year of the show-cause period, any employing institution shall be required to contact the office of the Committees on Infractions to make arrangements to show cause why restrictions on all athletically related activities should not apply. Any NCAA member institution employing the head coach during the pendency of the three-year show-cause term shall provide the head coach enhanced monitoring and NCAA rules education, which shall include monthly meetings with the member institution’s compliance officer to review the head coach’s coaching activity and to provide NCAA rules education as appropriate. Also, during the three-year show-cause period, the head coach shall attend an NCAA Regional Rules Seminar one time at his own expense.
6. Head coach restriction: the head coach violated Bylaw 11 head coach responsibility legislation when he failed to promote an atmosphere of compliance in his program. Bylaw 19.9.5.5 and the Figure 19-1 penalty guidelines contemplate head coach suspensions to address head coach responsibility violations. Therefore, the head coach shall be suspended from 40 percent of contests during the first year of the show-cause period. This suspension shall run concurrently with the show-cause order.
7. Show-cause order: the volunteer coach violated volunteer coach legislation. Therefore, the volunteer coach shall be subject to a two-year show-cause order from April 28, 2020, through April 27, 2022. Should the volunteer coach become employed in an athletically related position at an NCAA member institution during the first year of the show-cause period, any employing institution shall be required to contact the office of the Committees on Infractions to make arrangements to show cause why restrictions on all athletically related activities should not apply. Any NCAA member institution employing the volunteer coach during the pendency of the two-year show-cause term shall provide the volunteer coach enhanced monitoring and NCAA rules education, which shall include monthly meetings with the member institution’s compliance officer to review the volunteer coach’s coaching activity and to provide NCAA rules education as appropriate. Also, during the two-year show-cause period, the volunteer coach shall attend an NCAA Regional Rules Seminar one time at his own expense.

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