On November 9, 2018, the Committee on Infractions (“COI”) issued its report in which COI found violations of NCAA legislation in Brigham Young University’s (“BYU” or “Institution”) men’s basketball program. On the basis of those findings, COI determined this was a Level II Standard case and imposed penalties accordingly.

Appealed Penalties prescribed by COI

BYU appealed one penalty prescribed by COI. The appealed penalty is as follows:

Vacation of records: BYU acknowledged that the student-athlete participated in the 2015-16 and 2016-17 men’s basketball seasons while ineligible. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3, BYU shall vacate all regular season and conference tournament records and participation in which the ineligible student-athlete detailed in Violation No. 1 competed from the time he became ineligible through the time he was reinstated as eligible for competition. This order of vacation includes all regular season competition and conference tournaments. Further, if the ineligible student-athlete participated in NCAA postseason competition at any time he was ineligible, the institution’s participation in the postseason shall be vacated. The individual records of the ineligible student-athlete shall also be vacated. However, the individual finishes and any awards for all eligible student-athletes shall be retained. Further, the institution’s records regarding its men’s basketball program, as well as the records of the head coach, shall reflect the vacated records and shall be recorded in all publications in which such records are reported, including, but not limited to, institutional media guides, recruiting material, electronic and digital media plus institutional, conference and NCAA archives. Any institution that may subsequently hire the affected head coach shall similarly reflect the vacated wins in his career records documented in media guides and other publications cited above. Head coaches with vacated wins on their records may not count the vacated wins toward specific honors or victory “milestones” such as 100th, 200th or 500th career victories. Any public reference to the vacated contests shall be removed from the athletics department stationary, banners displayed in public areas and any other forum in which they may appear. Any trophies awarded by the NCAA in men’s basketball shall be returned to the Association.

Committee’s Resolution of the Issues Raised on Appeal

BYU asserted that COI abused its discretion by prescribing the vacation of records penalty as related to its men’s basketball program.

 In reviewing the decision in this case, the Committee may vacate a penalty prescribed by a panel of 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 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 (June 30, 2009) Page No. 23.

In this case, BYU “agreed that four boosters provided a prominent high school and college men’s basketball student-athlete with over $12,000 in benefits over a two-year period. From a monetary standpoint, the benefits fell into two general categories: (1) lower dollar benefits such as complimentary golf, free meals and cash; and (2) higher dollar benefits including all-inclusive vacations and the use of a car.” However, during the panel’s processing of the infractions case, BYU contested the vacation of records penalty which was one of the proposed penalties for the infractions case. An expedited hearing was held and the panel of COI decided to prescribe a vacation of records penalty, which required the appellant to vacate all regular season, conference tournament and NCAA postseason competition records in which the ineligible student-athlete competed from the time he became ineligible through the time he was reinstated as eligible for competition.

The appellant argued that the panel abused its discretion when prescribing a vacation of records penalty by:

1. Applying incorrect legal standards and misconstruing relevant case precedent;
2. Prescribing a penalty that is so unfair and unprecedented that it is arbitrary, capricious and irrational;
3. Basing its decision on clearly erroneous factual findings that contradict the Summary Disposition Report (“SDR”); and
4. Failing to weigh material factors relevant to whether to impose vacation of records, as a sanction.

While the panel of COI addressed BYU’s individual arguments in its response and during the oral argument, its central argument for the affirmation of the vacation of records penalty was that the panel of COI has the discretion to prescribe a vacation of records penalty in Level I and II infractions cases where a student-athlete participates in competition while ineligible. Further, the panel of COI argued that it appropriately exercised that discretion in this case given that it involved serious intentional violations and a large number of violations.

1. Applying Legal Standards and Relevant Case Precedent.

BYU argued the panel of COI misconstrued and ignored relevant case precedent when the panel of COI prescribed the vacation of records penalty. BYU also argued that in prescribing a vacation of records penalty, the panel of COI applied an incorrect legal standard when it concluded that ineligible participation is a “starting point” for the vacation of records penalty, thereby creating a strict liability standard for the vacation of records penalty. Additionally, BYU argued “the COI erred when it concluded that it cannot bifurcate violations or time periods in prescribing penalties, which is established by case precedent.” BYU asserted that the initial violations leading to the student-athlete’s ineligibility were “less severe” and therefore should not result in a vacation of records penalty.

In response to BYU’s arguments, the panel of COI argued that it did not abuse its discretion when it prescribed a vacation of records penalty to address the competitive advantage gained by BYU when it permitted an ineligible men’s basketball student-athlete to compete in athletics contests, and when the institution failed to meet its obligation to withhold the student-athlete under Bylaw 12.11.1. The panel of COI also argued that pursuant to Bylaw 19.9.7-(g), the hearing panel has the discretion to prescribe a vacation of records penalty when a violation exists that involves ineligible student-athletes participating in competition. The panel of COI stated that it did not create a strict liability approach for the prescription of a vacation of records penalty in that the language used in its decision was an acknowledgment of what Bylaw 19.9.7-(g) establishes as a trigger for the consideration of whether an additional penalty of vacation of records should be prescribed.

Vacation of Records Standards and Case Precedent

The Southeast Missouri State University decision and IOP 5-15-4 (currently IOP 5-15-6) provide guidance on the circumstances when the likelihood of the prescription of a vacation of records penalty is significantly increased. Those circumstances include:

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. A recent history of Level I, Level II or major violations; or
6. Ineligible competition in a case that includes a finding of failure to monitor or a lack of institutional control.

While none of the listed circumstances above are required to be present for a vacation of records penalty to be prescribed, BYU previously agreed that at least one of the circumstances exist in this infractions case which increases the likelihood of the prescription of a vacation of records penalty.  During the hearing before COI, BYU’s representative acknowledged:

“…that for the serious, multiple violations in this case, we agree they are serious and we agree that there are numerous violations.”

A large number of violations is specifically enumerated to increase the likelihood of the prescription of a vacation of records penalty. Additionally, there is no requirement of institutional knowledge or involvement in the violations for the prescription of a vacation of records penalty.

As noted above, BYU argued the panel of COI misconstrued and ignored relevant case precedent when it prescribed a vacation of records penalty. In so doing, BYU asserted that the panel of COI “abused its discretion by errantly holding that it is normal precedent…to prescribe a vacation of records.” BYU focused on four previous infractions cases to support its argument. Stanford University Public Infractions Decision (September 15, 2016); University of Miami (Florida) Public Infractions Report (October 22, 2013); University of Colorado, Boulder Public Infractions Report (June 21, 2007) and University of New Hampshire Public Infractions Report (June 27, 2014).

We are not persuaded by this argument. There is at least one distinguishing factor between the cases cited by the appellant and this infractions case. The infractions cases relied upon by the appellant did not include a violation of Bylaw 12.11.1 (formerly Bylaw 14.11.1), which outlines an institution’s obligation to withhold current ineligible student-athletes. In this case, BYU agreed that Bylaw 12.11.1 was violated. This Committee also recognizes that factors in infractions cases involving a vacation of records continue to evolve and expand, and that charging decisions and the circumstances of each infractions case may be factually unique. Further, there is case precedent in which the institution’s administration and staff did not have involvement, or knowledge of the violations and a vacation of records penalty was nevertheless prescribed. Finally, in this case, at least one of the representatives of athletics interests involved in the provision of impermissible benefits was introduced to the student-athlete through the Athletics’ Endowed Scholarship Mentor-Mentee Program.  The program was created by the institution to match student-athletes with mentors, who could provide them with school, career and life advice. Therefore, the institution initially facilitated at least one of the relationships that occurred between the representatives of athletics interests and the student-athlete.

The Committee found COI did not apply an incorrect standard or misconstrue case precedent by prescribing the vacation of records penalty.

Creation of Strict Liability Standard

Bylaw 12.11.1 places an affirmative obligation on institutions to withhold ineligible student-athletes from competition. The prescription of a vacation of records penalty is only considered when an institution has failed to withhold an ineligible student-athlete. Absent such a violation, a vacation of records penalty would not be considered. Bylaw 19.9.7-(g) supports this concept of when a vacation of records will be considered. We find the language used in the panel’s decision was an attempt to articulate this concept. We do not find that the panel created a strict liability standard for the application of a vacation of records penalty in this case. Rather, decisions on vacation of records penalties are made on a case-by-case basis in light of the totality of facts and circumstances. Saint Mary’s College of California Infractions Appeals Report (October 14, 2013) Page No. 5.

Bifurcation of Violations or Time Periods

As noted above, BYU argued that the panel of COI erred by failing to bifurcate violations or time periods when prescribing the vacation of records penalty in this case. BYU suggested that the initial violations leading to the student-athlete’s ineligibility were “less severe” and therefore should not result in a vacation of records penalty.

The Committee was not persuaded by this argument and find no legislated or policy requirement that the panel disaggregate institutional violations when prescribing appropriate institutional penalties. Moreover, the panel of COI has the discretion to look at an infractions case in totality when determining the appropriate penalties to prescribe.

2. Fairness of the Vacation of Records Penalty.

BYU argued that the panel of COI abused its discretion by prescribing a vacation of records penalty that is arbitrary, capricious and irrational. The appellant does not believe the penalty fit the violations, where the institution’s administration or staff had no involvement in or knowledge of the violations. BYU believes that the penalty is particularly unfair to the men’s basketball coach, uninvolved student-athletes and the institution. To support its position, the appellant points to the penalty being unprecedented in the history of men’s basketball and the era of leveling violations, when an institution lacked involvement or knowledge, and also to the number of wins vacated being in the top 10 of the number of vacated wins in the history of Division I men’s basketball.

The panel of COI argued that institutional involvement or knowledge is not required for the prescription of a vacation of records penalty. Further, the panel of COI asserted that the arguments put forward by the appellant failed to demonstrate that the prescription of the vacation of records penalty was arbitrary, capricious or irrational.

Guidance regarding the likelihood of the prescription of the vacation of records penalty can be found in the Southeast Missouri State Public Infractions Report Page Nos. 10 through 11 and Committee on Infractions IOP 5-15-4. The Committee previously noted that the list of factors that increase the likelihood of vacation of records penalty is not exhaustive and does not require the existence of one of the factors for the prescription of the penalty. Therefore, the prescription of a vacation of records penalty does not require an institution’s administration or staff to have knowledge of or involvement in the violation.

The Division I membership has made a commitment to the collegiate model which includes a commitment to fair competition. (Bylaws 20.9.1 and 20.9.1.3) One of the areas that affects fair competition is eligibility of student-athletes. (Bylaw 20.9.1.3) The participation of an ineligible student-athlete jeopardizes fair competition and provides the institution a competitive advantage. In this case, the prescription of the penalty requires the appellant to vacate all regular season and conference tournament records in which the student-athlete participated while ineligible during the 2015-16 and 2016-17 men’s basketball seasons, resulting in 47 wins being vacated. BYU agreed that from approximately August 2015 to August 2017, four representatives of the institution’s athletics interests provided impermissible benefits in the form of all-expense-paid trips, use of an automobile, automobile insurance, golf fees, meals, cash and hotel lodging to the student-athlete. The provisions of extra benefits occurred for two full seasons of men’s basketball.

The Committee recognized the impact the vacation of records penalty has on uninvolved staff and student-athletes, especially in the context of a team sport. However, under the facts and circumstances in this case and existing standards, the Committee did not find the panel’s prescription of the vacation of records penalty to be arbitrary, capricious or irrational.

3. Use of the Summary Disposition Report.

BYU argued that the panel accepted and then ignored the SDR findings of proper monitoring and cooperation on the part of the institution and its head men’s basketball coach. Additionally, BYU argued that the panel of COI relied on its “own inconsistent findings” that the institution failed to properly monitor or control its program.

The panel of COI argued that it accepted the parties’ agreements, and it did not penalize for a failure to monitor that did not exist. Additionally, the panel of COI did not create a “de-facto failure to monitor violation conclusion” by noting that Brigham Young had not initially discovered the violations. Rather, the “lack of discovery and how interactions arose” were context for how the violations continued for two years and therefore why so many wins were implicated.

The Committee has previously asked COI to provide greater detail regarding the rationale for the prescription of penalties in their decisions. The additional information provided by the panel in this case was responsive to the Committee’s request.

The Committee did not find that the decision is based on erroneous factual findings that contradict the SDR.

4. Weighing Material Factors Relevant to the Prescription of the Vacation of Records Penalty.

BYU argued that the panel failed to appropriately apply the framework set forth in the Southeast Missouri State infractions case and the Committee on Infractions IOP 5-15-4. BYU further argued that none of the factors listed in the Southeast Missouri State infractions case or the internal operating procedure are present in this case. BYU also argued that the violations in this case involved no institutional knowledge or involvement, which further demonstrates that the prescription of vacation of record penalty was an abuse of discretion.

The guidance related to the vacation of records penalty was not misapplied by the panel; factors included in the guidance from the Southeast Missouri State infractions case and COI ns IOP are not required for the prescription of vacation of records penalty; and knowledge or involvement by institution’s administration and staff is not required for the prescription of a vacation of records penalty.

The Committee did not find that the panel failed to weigh material factors when prescribing the vacation of records penalty.

For the reasons above, the Committee did not find that the panel abused its discretion when prescribing the vacation of records in this case.

Conclusion

The Committee affirmed the vacation of records penalty.

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