The NCAA Committee on Infractions Has Spoken: University of Louisville

Written by Christian Dennie
Friday, 16 June 2017 17:52

The NCAA Committee on Infractions (“Committee” or “Panel”) recently issued its findings and found that the University of Louisville (“UL” or “Institution”) committed violations of NCAA legislation. This case involved the men’s basketball program at UL. It centers on a former director of men’s basketball operations arranging for strippers and prostitutes to provide striptease dances and/or sex acts for 17 prospective and/or enrolled student-athletes, two nonscholastic basketball team coaches and a friend of one of the prospects. Some of the prospects were minors.

The Panel classified this case as Level I-Aggravated for the Institution. The former director of men’s basketball operations’ violations are also Level I-Aggravated. The head men’s basketball coach’s violations are Level I-Standard, while the former men’s basketball program assistant’s violations are Level II-Aggravated. Because the violations occurred both before and after October 30, 2012, the effective date of the implementation of the new penalty structure, the Panel compared the penalty structure in place prior to October 2012 and the current penalty structure to determine which is more lenient. The Panel concluded that former NCAA Bylaw 19.5.2 (2012-13 NCAA Division I Manual) afforded the Institution with less stringent penalties for a Level I-Aggravated case.

The Committee concluded that UL committed the following violations:

Violations of NCAA Division I Manual Bylaws 10.01.1 and 10.1, 13.2.1, 13.2.1.1-(e) and 16.11.2.1 (2010-11 through 2013-14 Division I Manual)

For several years, the former operations director brought strippers and prostitutes into Minardi Hall and local hotels. There, the strippers and prostitutes provided stripteases and sex acts for prospects and enrolled student-athletes, a friend of one of the prospects and nonscholastic basketball team coaches. These actions violated multiple areas of NCAA legislation. The Institution and NCAA enforcement staff substantially agreed to the facts and that violations occurred. The former operations director did not respond to the notice of allegations. The Panel agreed to the facts and concluded that the former operations director committed Level I violations.

On 14 occasions from December 2010 through July 2014, the former operations director brought strippers and prostitutes into Minardi Hall and hotels to perform stripteases and/or sex acts for a total of 15 prospects, three enrolled student-athletes, a friend of a prospect and two nonscholastic basketball coaches. Many of the prospects were minors. The former operations director’s actions violated NCAA inducement, benefit and ethical conduct legislation. These are severe violations, regardless of any dollar amounts assigned to them. The conduct violated Bylaws 10, 13 and 16 and caused the Institution to violate Bylaws 13 and 16.

As a foundational core for institutional staff members, Bylaws 10.01.1 and 10.1 generally require all staff members to conduct themselves in an ethical manner, which includes representing the honor and dignity of the high standards associated with wholesome competitive sports. Further, as basic, important principles, Bylaws 13.2.1 and 16.11.2.1 preclude an institution and any institutional employee from providing any inducements or benefits to prospects, enrolled student-athletes or their friends, unless the benefits or inducements are expressly permitted by NCAA legislation. Bylaw 13.2.1.1-(e) specifically prohibits institutional staff members from providing cash to prospects.

Without dispute, the bylaws do not allow institutional staff members to arrange for stripteases and sex acts for prospects, enrolled student-athletes and/or those who accompany them to campus. On 12 separate occasions over three years, the former operations director arranged for strippers and prostitutes to repeatedly come to Minardi Hall, where they performed lewd dances for, and engaged in sex acts with, prospects, enrolled student-athletes and a friend of one of the prospects. On two other occasions, the former operations director arranged for similar activities to occur with a prospect and two coaches of prospects’ nonscholastic basketball teams at local hotels. The activities predominately occurred on campus, in a dorm that primarily housed basketball student-athletes and others associated with the program. They involved 15 prospects, many of whom were minors. At times, some of these prospects spent nights in rooms by themselves. The former operations director also handed prospects cash to “tip” the strippers. When the former operations director arranged for the strippers and prostitutes to provide their services, he violated Bylaws 10.01.1, 10.1, 13.2.1 and 16.11.2.1. When he gave prospects cash to tip the strippers, he violated Bylaws 10.01.1, 10.1 and 13.2.1.1-(e).

The Committee has previously dealt with cases involving impermissible benefits rendered through providing access to strippers and striptease shows, although not to this magnitude. See University of Miami (2013) (concluding that a booster provided impermissible benefits to student-athletes when he purchased their admission, entertainment and beverages at strip clubs); University of Alabama (2002) (concluding that the institution violated NCAA benefit legislation when prospects on official visits and their student hosts were entertained by strippers on campus); University of Mississippi (1994) (concluding that institutional boosters provided impermissible inducements when they took prospects to strip bars).

The Panel concluded that the activities, both individually and collectively, are Level I violations. Level I violations are those that seriously undermine or threaten the integrity of the NCAA Collegiate Model. They include violations that provide or are intended to provide a substantial or extensive advantage or impermissible benefit. The NCAA Collegiate Model requires that athletics be integrated into the educational system and conducted in a manner that promotes the ideals of higher education and the integrity of intercollegiate athletics. This fundamental precept requires institutions to provide a safe, healthy and positive environment for their student-athletes not only academically, but in all facets of their lives. This duty extends to prospects during recruiting visits. The focus of NCAA bylaws prohibiting impermissible recruiting benefits makes this duty explicit and clear. This Institution failed in this regard. The former operations director, the individual entrusted to keep order at Minardi Hall, created an environment that has no place on a college campus and was directly at odds with the NCAA Collegiate Model. The Institution acknowledged at the hearing that his conduct was disgusting and inexcusable.

The Institution agreed that the violations are Level I violations in the aggregate per Bylaw 19.1.1. However, it submitted that each individual violation was only Level III. It made this argument based solely upon the assigned monetary value of the striptease dances and sex acts. However, the Panel considered other factors besides monetary value in determining the level of violations. In this instance, the Panel needed not ascertain an exact value of the activities. The nature of the violations themselves, without more, elevates them to Level I. The types of activities that occurred in this case were repugnant and threaten the integrity of the NCAA Collegiate Model, regardless of any precise dollar value assigned to them. Further, although the former operations director did not submit to interviews, and therefore did not speak to his motivations, the Panel concluded that he arranged the activities in an attempt to convince the prospects to enroll at the Institution. Thus, his actions were intended to provide a substantial or extensive recruiting advantage to the institution. Each one of these individual violations is Level I, and they are Level I collectively.

Violations of NCAA Division I Manual Bylaws 10.01.1 and 10.1 (2015-16 Division I Manuals); 10.1-(a) 2015-16 Division I Manual); and 19.2.3 (2015-16 Division I Manual)

In 2016, the former operations director violated the principles of ethical conduct and did not satisfy his responsibility to cooperate with the NCAA when he refused to furnish information relevant to an investigation of possible violations of NCAA legislation. The Institution and NCAA enforcement staff substantially agreed to the facts and that violations occurred. The former operations director did not participate in the process. The Panel agreed to the facts and concludes that the former operations director committed Level I violations.

On two occasions in 2016, the former operations director refused to consent to interviews and provide requested records to the NCAA enforcement staff during the investigation. This conduct impeded the infractions process and violated Bylaws 10 and 19, which govern ethical conduct and cooperation.

Bylaws 10.01.1 and 10.1 generally require all institutional staff members to conduct themselves in an ethical manner. Subsection (a) of Bylaw 10.1, as well as Bylaw 19.2.3, direct all institutional staff members to make a full and complete disclosure of information relevant to the investigation of possible NCAA rules violations to the enforcement staff upon request.

In both February and June 2016, the former operations director engaged in unethical conduct when he refused to submit to interviews or produce information requested by the enforcement staff during the investigation. Institutional staff members have a duty to provide all information relevant to investigations into potential NCAA rules violations. On both occasions, the former operations director, through an attorney, refused to comply with the NCAA enforcement staff’s requests. His actions violated Bylaws 10.01.1 and 10.1, as well as Bylaws 10.1-(a) and 19.2.3. Pursuant to Bylaw 19.1.1, the former operations director’s unethical conduct and failure to cooperate are Level I violations.

In past cases, the Committee has concluded that the failure to provide complete information violates NCAA ethical conduct and cooperation legislation. See Northeastern University (2014) (concluding that a head coach engaged in unethical conduct and failed to cooperate when he refused to consent to an interview); Boise State University (2011) (concluding that a head coach who failed to provide full and complete information violated NCAA cooperation and ethical conduct legislation); University of Tennessee (2011) (concluding that a head coach who provided incomplete information failed to cooperate).

Violations of NCAA Division I Manual Bylaws 19.2.3 (2015-16 and 2016-17 Division I Manual)

In 2016, the former program assistant failed to fully cooperate in the investigation when he refused to deliver requested phone records to the NCAA enforcement staff. The records were relevant to the investigation of possible NCAA rules violations. The Institution took no position on the allegation because the former program assistant was no longer employed at the Institution when the alleged violation occurred. The former program assistant agreed that the NCAA enforcement staff requested his phone records and he did not produce them, but he did not agree that he failed to cooperate with the investigation. The former program assistant’s refusal violated Bylaw 19. The Panel concluded that the former program assistant committed a Level II violation.

From May through August 2016, the former program assistant violated NCAA cooperation legislation when he refused to produce certain phone records when requested to do so by the enforcement staff. The records were relevant to the investigation. Among other things, they may have contained information regarding the source of the funds provided to the escort by an unknown male in July 2016. His conduct violated Bylaw 19.

Bylaw 19.2.3 requires all present and former institutional staff members to cooperate fully in NCAA investigations. Although the former program assistant submitted to interviews and produced requested bank records, he refused to produce phone records that might have assisted the enforcement staff in determining who the former operations director contacted in July 2014 to deliver $200 cash to the escort outside Minardi Hall. The NCAA enforcement staff requested the records on multiple occasions, informed the former program assistant of his responsibility under NCAA bylaws, and informed him of his ability to be represented by counsel. The former program assistant continued to refuse to produce the records.

The former program assistant’s stated reasons for refusing to provide the phone records did not absolve him of his obligation to cooperate. He physically possessed the phone and was the one who used it. Throughout the investigation, he offered several justifications for his refusal. Initially, he was undecided regarding his continued cooperation because he claimed he was “busy.” Shortly thereafter, in his second interview, he was angry, had an “attitude” and again refused to provide the records. When specifically asked, he offered no reasons for his refusal. During the same interview, he declined an opportunity to sign a records release, which would have allowed the NCAA enforcement staff to obtain the records without intruding on the former program assistant’s time. In his first response, he offered that the investigation was threatening his employment and that the NCAA enforcement staff was engaged in a “fishing expedition.” Finally, in a supplemental response filed a month before the hearing, he stated for the first time, and 10-plus months after the initial request, that he could not produce the records because the phone was in his mother’s name, she controlled the account and refused to give him access. This was the first time he specifically mentioned that he had an impediment to producing the records.

In support of the final reason for his refusal, the former program assistant produced a copy of his mother’s April 2017 phone bill at the hearing. It confirmed that, at the time of the hearing, his mother was the named holder of the account that includes the phone for which the NCAA enforcement staff was requesting records. The bill also showed that charges for the three phones covered by the account are listed and totaled separate from each other, meaning that he could have provided the records only for the phone the staff was interested in without the staff being privy to the information for the other two lines. If his mother allowed him to present an April 2017 bill, there is no reason why she could not have allowed him to retrieve the bills reflecting the charges and calling information for the limited period of 2014 the staff was interested in. The Panel is unpersuaded that the former program assistant was unable to produce the records requested by the NCAA enforcement staff.

This situation is distinguishable from that of the appellant in Former Assistant Men’s Basketball Coach, The University of Southern Mississippi, Infractions Appeals Report No. 437 (2017). In that matter, a former coach consistently asserted that his wife controlled the family finances and would not agree to release joint bank account records requested by the NCAA enforcement staff as it investigated potential NCAA rules violations. The Infractions Appeals Committee (IAC) determined that, under the circumstances, the NCAA enforcement staff’s request was unduly burdensome and vacated the COI’s determination that the former coach failed to cooperate when he did not turn over the records. In this case, the former program assistant changed his reasons for not cooperating numerous times. He did not assert that his mother would not allow the records to be released until just before the hearing. Further, the billing statement he produced showed that the bills could have been separated so that he could produce records for just the phone he used. The former program assistant had possession and use of the phone. The NCAA enforcement staff’s request for the records was made to pursue information of a possible NCAA rules violation. Thus, the former program assistant had a duty to produce the records. When he did not produce them, he failed to fully cooperate in the investigation in violation of Bylaw 19.2.3. His violation is Level II.

Violations of NCAA Division I Manual Bylaws 11.1.2.1 (2010-11 Division I Manual through October 29, 2012) and 11.1.1.1 (October 30, 2012, through 2013-14)

For approximately four years, the head coach failed in his responsibility to monitor the activities of the former operations director, who reported to him. Neither the Institution nor the head coach agreed with the NCAA enforcement staff that the head coach failed to monitor the former operations director. The panel concluded that the violation occurred and is Level I.

From January 2010, the time the head coach hired the former operations director, through April 2014, when the former operations director left the Institution, the head coach failed to monitor his activities in Minardi Hall with prospects visiting campus. Specifically, the head coach failed to monitor the former operations director when the head coach: (1) created the residential environment in which the violations eventually occurred and trusted the former operations director to behave in a manner consistent with NCAA rules; and (2) delegated monitoring of the former operations director to his assistant coaches without appropriate oversight. The head coach’s failure to monitor the former operations director violated Bylaw 11 head coach responsibility legislation.

Bylaw 11.1.1.1 and its predecessor, Bylaw 11.1.2.1, create a presumption that head coaches are responsible for the actions of their subordinates. See Syracuse University (2015) (concluding that the bylaw places a duty upon a head coach to monitor the activities of all staff and administrators who report directly or indirectly to the head coach); University of Miami (2013) (concluding that the bylaw holds head coaches responsible for the conduct of staff); Indiana University, Bloomington (2008) (concluding that the bylaw places a specific and independent monitoring obligation on head coaches). The monitoring responsibility applies to all assistant coaches and program staff members who report, either directly or indirectly, to the head coach. That presumption is rebuttable.

Here, the head coach failed to rebut the presumption. He essentially placed a peer of the student-athletes in a position of authority over them and visiting prospects and assumed that all would behave appropriately in an environment that was, for all practical purposes, a basketball dormitory. Further, he delegated responsibility for monitoring the former operations director to his assistant coaches, who later stated they were unaware it was their job.

The first way the head coach’s monitoring was deficient was in creating the living arrangements in which the violations occurred and then trusting the former operations director without verifying his actions. Admirably, the head coach raised the funds to construct Minardi Hall in memory of a fallen family member. However, once the hall was constructed, it was occupied almost exclusively by individuals associated with the men’s basketball program. Into that environment he placed the former operations director, just a year removed from being a teammate of the student-athletes, as the person charged with keeping order. According to the head coach, the former operations director’s duties included monitoring the behavior of the people in Minardi Hall. In such a setting, the head coach had a responsibility to ensure that the former operations director complied with NCAA and institutional rules.

Minardi Hall had a resident assistant, but the head coach chose the former operations director to serve as what the Institution described as a “watch dog” over the student-athletes living there. The head coach hired the former operations director because he was loyal to the program and the head coach felt he was trustworthy. The former operations director attended staff meetings and participated in rules education sessions, but was not specifically trained in any manner regarding the duties the head coach assigned him in Minardi Hall.

As the Committee stated in Syracuse University, a head coach does not meet his monitoring responsibility by simply trusting an individual to know NCAA rules and do the right thing. In that case, a head coach hired an individual with a record of success in academic matters to oversee academics in his program. He delegated responsibilities to that individual and trusted him to follow all rules. The head coach did not check up on the individual’s activities, which eventually included committing academic fraud on behalf of student-athletes. Here, the head coach gave the former operations director some general admonitions, such as keeping prospects out of bars and ensuring they did not make excessive noise. Yet the head coach gave the former operations director responsibilities for monitoring behavior in Minardi Hall. By the head coach’s own admission, the coaching staff did not know what occurred inside the dormitory from the time the prospects on official visits returned there after dinner at approximately 10 p.m. until the next morning. The late-night hours of recruiting visits, including the sleeping arrangements of prospects, require just as much care, planning, monitoring and supervision by athletics staff as daytime events. When the prospects came to breakfast or another appointment the following morning, the head coach asked them only what he described as “standard generic questions” about their time on campus. His inquiries to the former operations director were limited to questions about how the prospect was enjoying his time on campus and where UL ranked on the prospect’s list of institutions that were recruiting him.

The Institution provided even less supervision for prospects staying overnight on unofficial visits to campus, which do not include assigned student hosts or organized meals. The head coach was not even present when some of the unofficial visits occurred, and he had little or no recall of some of them. During his interview with the NCAA enforcement staff, he stated a lack of awareness that at least one of the prospects involved in the violations even stayed in Minardi Hall while on an unofficial visit. Many of the prospects who visited were minors, including some who ultimately observed the striptease dances and were involved in the sex acts. Pursuant to institutional policy, their visits were to be approved by four individuals outside of athletics and a copy of their identifications placed on file. This did not happen. They were to stay in the room of an assigned host, which many did not. In such a setting, with high school students allowed into a college dormitory and, at best, loosely monitored by an individual barely older than the enrolled student-athletes, the risk for problems to occur was high. When the head coach placed the former operations director in charge of keeping order in Minardi Hall, did not ensure that he followed institutional policy and simply trusted him to do the right thing, he did not meet his responsibility to verify to the best of his ability that the danger of rules violations was minimized. The head coach failed to meet his responsibility to monitor the former operations director, and is therefore responsible for his actions.

Second, the head coach said he delegated the monitoring of the former operations director’s activities to his assistant coaches. However, the assistant coaches who were interviewed were unaware of this responsibility. The head coach’s own role was generally limited to asking the former operations director where the prospects were leaning toward enrolling. Consequently, neither the head coach nor his assistant coaches monitored the former operations director’s activities with visiting prospects on campus.

The former operations director had numerous duties when prospects were on campus. He took them on tours, made sure they got up in the morning and followed their itineraries, and was responsible for their well-being in Minardi Hall. The head coach’s own observations of the former operations director’s dealings with the prospects consisted of seeing them at breakfast or in some other limited, controlled setting. However, all assistant coaches denied that it was their responsibility to monitor the former operations director. Assistant coaches 2, 3 and 4 all denied that their duties included monitoring the former operations director’s interactions with prospects. Similar to the head coach, they assumed that all staff members were performing their duties as instructed and in accordance with NCAA legislation. Their conversations with the former operations director were also similar to those had by the head coach, consisting of general questions about the visiting prospect’s schedule and whether the prospect was enjoying himself. If the head coach expected his assistants to monitor the former operations director, he did not communicate it to them clearly. The head coach had the ultimate responsibility to monitor the activities of the former operations director. Because he did not rebut his presumed responsibility for the conduct of the former operations director, his subordinate, the head coach committed a Level I violation of Bylaw 19.1.1.

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

For the reasons set forth above, the Panel concluded that this case involved Level I and Level II violations of NCAA legislation. Level I violations are severe breaches of conduct that seriously undermine or threaten the integrity of the NCAA Collegiate Model. Level II violations are significant breaches of conduct that may compromise the integrity of the Collegiate Model.

Because the violations in this case straddled the implementation of the new penalty structure, the Panel conducted a penalty analysis under both former Bylaw 19.5.2 (2012-13 Division I Manual) and current Bylaw 19.9 to determine which penalty structure was less stringent. In considering penalties under the former penalty structure, the Panel reviewed past cases as guidance. In considering the penalties under the new penalty structure, the Panel also reviewed the aggravating and mitigating factors and utilized the new penalty guidelines to appropriately classify the case and violations. The Panel considered aggravating and mitigating factors by weight as well as number. This case involved violations that occurred over close to a four-year period. The violations also included deliberate violations and a willful, blatant disregard for the NCAA constitution and bylaws, as well as student-athlete welfare. A person of authority condoned and participated in the wrongful conduct. Additionally, many of the violations in this case caused ineligibility of the Institution’s student-athletes. After considering all information relevant to the case, the panel determined that (i) the number and nature of the aggravating factors outweigh the mitigating factors with regard to the institution and (ii) there are only aggravating and not mitigating factors with regard to the conduct of the former operations director. Therefore, the Panel classified the Institution’s case as Level I-Aggravated. The violations are also Level I-Aggravated for the former operations director, while the head coach’s violation is Level I-Standard. The former program assistant’s violation is Level II-Aggravated. Because of the required more stringent core penalties for a Level I Aggravated case, the Panel prescribed appropriate penalties under former Bylaw 19.5.2 as follows:

Four years of probation from June 15, 2017, through June 14, 2021.
The Institution shall pay a financial penalty of $5,000.00.
The Institution ended the 2015-16 men’s basketball season with its last regular season game and did not participate in postseason conference or NCAA tournament competition.
The men’s basketball program reduced by two the number of men’s basketball grants-in-aid for the 2016-17 academic year (institution imposed). Additionally, the Institution shall reduce the number of grants-in-aid for men’s basketball by a total of four over the period of probation. The Institution may take the reductions during any academic year covered by the probationary period.
The Institution reduced the number of recruiting opportunities by 30 by prohibiting any coach from traveling during the April 2016 recruiting period (24 days) and reduced the recruiting travel during the July 2016 recruiting period by six days.
The Institution reduced the number of official visits in the sport of men’s basketball to a total of 10 during the 2015-16 academic year and will award no more than a total of 16 during the 2016-17 and 2017-18 academic years, a reduction of eight off the permissible number.
For the full period of probation, the Institution shall not allow any prospective men’s basketball student-athletes on unofficial visits to the Institution to stay overnight in any campus dormitory or other institutional-owned property.
The Institution has disassociated the former operations director and represented that the disassociation is permanent. The disassociation shall include: (a) refraining from accepting any assistance from the former operations director that would aid in the recruitment of prospective student-athletes or the support of enrolled student-athletes; (b) refusing financial assistance or contributions to the Institution’s athletics program from the former operations director; (c) ensuring that no athletics benefit or privilege is provided to the former operations director, either directly or indirectly, that is not available to the public at large; and (d) implementing other actions that the Institution determines to be within its authority to eliminate the involvement of the former operations director in the Institution’s athletics program.
The Institution shall engage the services of an outside entity to audit its dormitory operations. The Institution shall comply with all recommendations made by the auditor for improving safety and activity monitoring in the dormitories.
The Institution shall suspend the head coach from all coaching duties for the first five conference games of the 2017-18 season.
The former operations director will be informed in writing by the NCAA that the panel prescribes a 10-year show-cause order.
The former program assistant will be informed in writing by the NCAA that the panel prescribes a one-year show-cause order.
The Institution shall vacate all regular season and conference tournament wins in which ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for competition through either the student-athlete reinstatement process or through a grant of limited immunity.
For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.