The NCAA Division I Infractions Appeals Committee (“Committee”) recently reviewed and affirmed the Committee on Infractions’ (“COI”) decision relating to Boise State University (“BSU”).  COI found that BSU violated multiple NCAA bylaws governing recruiting, financial aid, extra benefits, impermissible travel expenses, housing, meals and transportation, unethical conduct, ineligible competition, impermissible recruiting inducements, impermissible practice sessions, failure to monitor and promote an atmosphere of compliance, impermissible lodging and practice for a prospective student-athlete, and lack of institutional control. COI, therefore, issued substantial penalties including three years of probation, practice reductions, and financial aid reductions for the football, men’s and women’s cross country and track and field, and men’s and women’s tennis programs. A more thorough analysis of COI’s decision can be found here.

On appeal, BSU asserted the following penalties should be set aside as “excessive such that it constitutes an abuse of discretion”:

1.         Reduce total grants-in-aid in the sport of football to 82 for the 2011-12, 2012-13, and 2013-14 academic years.

2.         In football, reduce by 3 the number of practice opportunities permitted prior to the first game for the 2011-12 and 2012-13 academic years. Further, during the 2012, 2013, and 2014 spring practice periods, the football team will reduce the number of sessions during which contact is allowed from 12 to 9.

In reviewing the penalties imposed by COI, the Committee set forth the standard for abuse of discretion as follows:

“[A]n 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 the 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.”

Reduction of Grants in Aid of Football.  BSU proposed a self-imposed reduction in its grants-in-aid in the sport of football by a total of three from the maximum allowed annually (85) over the 2011-12 and 2012-13 academic years.  COI accepted BSU’s self-imposed proposed penalties and added an additional two years to the penalty with the loss of three grants-in-aid for each of those additional years.  BSU, therefore, argued that COI failed to consider and weigh material factors and the grants-in-aid penalty imposed was arbitrary, capricious or irrational and further argued the penalty imposed is excessive.

The Committee reviewed ten cases in FBS that called for reduction of grants-in-aid in football over the last five years.  Only two of the ten cases reviewed had reductions of grant-in-aid as great or greater than the penalties imposed on BSU (i.e., University of New Mexico and University of Southern California).  Of the remaining eight cases, only three cases had reductions of grants-in-aid in football greater than three (i.e., Florida State University, University of Oklahoma, and University of Kansas).  The Committee distinguished each case and stated the above-referenced cases “were more serious than this one and warranted additional penalties.”  In this case, the Committee stated “there appears to be no qualitative distinction in the record that would warrant the extent of the departure from prior precedent” and, thus, the reduction of nine football grants-in-aid is excessive.

As a result of the foregoing, the Committee remanded the penalty to COI for reconsideration of the appropriate penalty.

Reduced Practice Opportunities.  BSU only appealed the reduction in practice opportunities penalty as allocated against the football team for spring practice.  BSU argued the establishment of spring practice restrictions without a directly related practice time violation indicates a clear error of judgment, such that the imposition of the penalty was arbitrary, capricious or irrational.  The Committee found BSU’s arguments were not persuasive and stated BSU self-imposed limitations on practice opportunities to show violations would not be tolerated and to deter further violations.  Based on that rationale, the penalties levied were appropriate and, therefore, the Committee concluded “the reduction in spring practice opportunities is [not] a clear error of judgment such that it is arbitrary, capricious or irrational.

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