The Committee on Infractions (“COI”) found violations of NCAA legislation in eighteen (18) of California Polytechnic State University, San Luis Obispo (“Cal Poly” or “Institution”) sports programs.

Penalties Imposed by COI

Cal Poly appealed to the Committee the prescription of the following penalty by COI:

Vacation of Records: Cal Poly shall vacate all regular season and conference tournament records and participation in which ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for athletics competition.

Committee’s Resolution of the Issues Raised on Appeal

 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.

In this case, Cal Poly agreed that for a period of three-and-one half years, it violated book-related financial aid legislation. Specifically, from the 2012-13 academic year through the 2015 fall quarter, the appellant provided 265 student-athletes in 18 sport programs impermissible financial aid. This aid was distributed in the form of cash stipends totaling $800 for books and course-related supplies that was not equal to the actual cost of the items, as required by NCAA legislation. Out of the 265 student-athletes who received cash stipends, 72 student-athletes received funds that exceeded the cost of the books, and at least 30 student-athletes exceeded their financial aid limits. Additionally, as a result of the institution’s lack of understanding related to the permissible use of the cash stipends for books, COI found that the appellant failed to monitor its book scholarship program to ensure compliance with NCAA legislation.

COI prescribed a vacation of records penalty that required the appellant to vacate all regular season, conference tournament and NCAA postseason competition records in which the 72 student-athletes who received funds that exceeded the cost of their books and the 30 student-athletes who exceeded their individual financial aid limits competed. The vacation of record penalty covers the period from the time they became ineligible through the time they were reinstated as eligible for competition.

Cal Poly argued that the vacation of records is inappropriate, arbitrary, capricious, patently unfair to the innocent student-athletes and coaches and contrary to established precedent in similar cases. Specifically, the appellant argued that the panel abused its discretion when it:

1. Imposed a vacation of records penalty based upon the participation of student-athletes who were not culpable and received negligible benefits.
2. Imposed a vacation of records without merit.
3. Failed to consider or weigh the university’s corrective measures, self-imposed penalties and cooperation.
4. Failed to consider that Article 16 mandates that ineligibility begins upon discovery of the violation, and that there is a minimum threshold of $200 to affect eligibility.

In response to the Cal Poly’s arguments, COI argued that it appropriately exercised its authority, which is expressly granted within Bylaw 19.9.7-(g) and ratified by its internal operating procedures. The vacation of records penalty was prescribed to address the appellant’s misapplication of book-related financial aid, its failure to withhold ineligible student-athletes from competition and its failure to monitor the administration of its book-related financial aid. COI argued that the vacation of records penalty is supported and consistent with prior “case guidance” involving student-athletes who competed while ineligible. In addition, COI noted that the cases used by the appellant to support its arguments were either dated or factually dissimilar. COI argued that even in cases that may be considered similar, COI uses its discretion to weigh the facts and determine the appropriateness of the vacation penalty in each individual case.

For the vacation of records penalty, the COI’s Internal Operating Procedures and previous infractions cases provide guidance on the circumstances when the likelihood of such a penalty being prescribed 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 lack of institutional control. None of these enumerated circumstances are required to be present for the panel to prescribe a vacation of records penalty.

The Committee has also noted that the list of factors that increase the likelihood of a vacation of records penalty is not exhaustive and does not require any of the factors to be present for the panel to prescribe the penalty. Cal Poly agreed that it misapplied the NCAA financial aid legislation, violations occurred and student-athletes participated while ineligible. In this case, two (2) circumstances existed which increased the likelihood of the prescription of a vacation of records penalty. First, there were a large number of violations. The violations involved 265 student-athletes in 18 sport programs. Second, it involved ineligible competition and a finding that the appellant failed to monitor book-related financial aid. Therefore, the likelihood of a vacation of records penalty was increased in this case.

As noted above, Cal Poly argued that the panel abused its discretion by prescribing a vacation of records penalty in the circumstance where the student-athletes had no culpability or received nominal benefits. Without making any statement about the level of culpability of or level of benefits provided to the student-athletes in this case, we are mindful of the consequences that a vacation of records penalty has on those individuals involved in and impacted by the imposition of the penalty. However, the vacation of records penalty is designed to hold an institution accountable for its responsibility to understand and abide by legislation adopted by the NCAA membership, and address any competitive advantages gained by the institution’s failure to withhold ineligible student-athletes from competition.

Cal Poly argued that the student-athletes’ eligibility could have been easily restored had it known its book scholarship program violated NCAA legislation. This argument is based on the assumption that had Cal Poly sought reinstatement for the ineligible student-athletes, the NCAA subsequently would have granted those requests.

In this case, Cal Poly did not actually seek reinstatement, which would be required for the student-athletes to be eligible. The Committee is unable to base its decision on facts that were not applicable at the time of the appeal, or at best a speculative possibility. The Committee has also previously recognized that outcomes of reinstatement processes are not guaranteed. As such, an institution is not free from penalties related to the participation of ineligible student-athletes, based on a speculative assumption that the student-athletes would have been reinstated.

Finally, Cal Poly argued that previous infractions case precedent supports its position that COI did not prescribe a vacation of records penalty in other cases when student-athletes had no culpability or inadvertently received a benefit. In its written appeal, the appellant focused on four previous infractions cases to support its argument.

In October 2012, the membership adopted significant changes to the NCAA’s approach and structure related to violations and penalties. Bylaw 19.9.1 outlined how the new penalty structure would be used by the COI when prescribing penalties based on the timing of the violations. As a result of the implementation of a new violation and penalty structure, infractions cases under the old violation and penalty structure may have limited precedential value. The Alabama, IPFW and Nebraska cases were decided before the implementation of the current penalty structure found in Figure 19-1 and Bylaws 19.9.5 and 19.9.7. Additionally, although Cal Poly cited cases it believed had similar fact patterns, there are facts in some of the cases that are distinguishable from this case.

In the IPFW case, the institution also miscalculated book costs. The institution improperly awarded book scholarships using the amount legislated for the book award equivalency computation figure without verifying the actual cost of textbooks. However, in that case, the impermissible awarding of book scholarships affected only two sports, women’s tennis and baseball. In this case, 18 out of 20 sponsored sports were affected by the appellant’s misapplication of the legislation related to book awards. Although there were previous infractions cases outlining the proper distribution of cash stipends for books and required course-related materials, the appellant’s compliance department did not establish educational efforts or monitoring policies designed to ensure compliant administration of cash stipends for books.

The Morehead State infractions case involved violations related to the progress-toward degree legislation. The panel in that case did not impose a vacation of records penalty because the certification of eligibility errors were the result of a computer system error and did not involve the institution’s lack of understanding of the legislation. Unlike the violations in Morehead State, the violations in this case were a result of institutional staff’s lack of understanding of the legislation related to book stipends.

As noted above, the guidance related to the vacation of records penalty was not inappropriately applied by the panel, as two factors included in the guidance from the Southeast Missouri State case and the COI Internal Operating Procedures were present in this case. While Cal Poly cited a limited number of examples in which COI determined that the vacation of records penalty was not warranted, it is within the COl’s discretion to determine the penalties based on the specific circumstances of the case. The record before the Committee does not support a determination that COI abused its discretion by failing to follow the limited number of cases in which the vacation of records penalty was not prescribed.

Conclusion

The Committee affirmed the vacation of records penalty issued by COI.

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