The Committee on Infractions (“COI”) found violations of NCAA legislation in twelve (12) of Florida A&M University (“FAMU” or “Institution”) sports programs.

Penalties Imposed by COI

FAMU appealed to the Committee the prescription of the following penalty by COI:

Financial Penalty: Florida A&M shall pay a $5,000 plus three percent of the total athletics budget fine to the NCAA.

Committee’s Resolution of the Issues Raised on Appeal

In reviewing the decision in this case, the Infractions Appeals 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 the Committee 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, FAMU agreed that for a six-year period, FAMU improperly certified the eligibility of 93 student-athletes in 12 sport programs. This improper certification resulted in ineligible student-athletes competing and receiving actual and necessary expenses. FAMU also agreed that failures in the eligibility certification process demonstrated a lack of institutional control over the administration of its athletics department. FAMU agreed to the level of violations and that three aggravating factors existed in this case.

After the submission and review of the summary disposition report for this infractions case, COI proposed additional penalties including the prescription of a financial penalty of $5,000 plus three percent of the FAMU’s total athletics department budget. FAMU contested the proposed financial penalty, an expedited hearing was held, and COI prescribed the financial penalty which required the appellant to pay a fine of $5,000 plus three percent of the total athletics budget to the NCAA.

FAMU made several arguments to explain how COI abused its discretion when it prescribed the financial penalty in this case, as follows. First, the financial penalty “imposed” by COI was based on a misapprehension of the underlying substantive legal principles as the panel failed to consider new facts addressed at the expedited hearing. Second, COI failed to consider and weigh material factors when imposing the penalty. Finally, COI’s financial penalty was arbitrary, capricious or irrational.

In response to FAMU’s written appeal, COI argued that the appellant’s case was a serious Level I-Aggravated case with widespread systemic failures in core membership obligations. COI also argued that at the time the panel considers what aggravating and mitigating factors apply in a case, only factors relevant to the case are applicable. Finally, COI the facts presented in this case do not support the application of any mitigating factors, or a deviation from the core penalties identified in the penalty guidelines in NCAA Bylaw 19.9.5.

The appellant argued that there were “new facts” addressed at the expedited hearing that the panel could have considered when determining whether Bylaw 19.9.4-(i) applied in this case. The first “new” fact, for the appellant, was the panel’s resolution that the case was a Level I-Aggravated case, after the submission of the summary disposition report. The classification of the case had a direct impact on the financial penalty that was prescribed. The appellant argued that had it known that the panel considered this case a Level I-Aggravated, it would have argued different mitigating factors in order for the panel to reconsider the case as a Level I-Standard.

FAMU argued that the second new fact, for COI, was the imposition of the requirement by the State University System of the Florida Board of Governors to be a self-supporting auxiliary program. As such, the money for the fine would have to come from the athletics department’s budget. The final “new” fact, for the panel articulated by the appellant, was that the appellant was a grant recipient through the NCAA Accelerating Academic Success Program (“AASP”), and the financial penalty would have a detrimental effect on the student-athletes’ academic success that has been made at FAMU since the AASP grant dollars were received.

In reviewing the financial penalty prescribed in this case, the Committee considered NCAA bylaws related to penalties and Figure 19-1. Bylaw 19.9.2 states that in order for COI to determine whether a party is subject to mitigated, aggravated or standard penalties, it must first assess whether any mitigating and/or aggravating factors are present and then weigh those factors to determine the classification of a case. After determining the appropriate classification based on the aggravating and mitigating factors, COI then prescribes core penalties, as set forth in Figure 19-1. The legislation does not require COI to reassess the application of mitigating and/or aggravating factors after the prescription of penalties in a case.

Further, the creation of the penalty guideline in Figure 19-1, was designed by the membership to increase the predictability and transparency of the penalties that could be prescribed given the types of violations in an infractions case. The Committee believed FAMU knew or should have known the possible penalties when it agreed that this case should be classified as Level I and, thus, found that there was no abuse of discretion when COI did not reassess the mitigating factors after concluding that this infractions case was a Level I-Aggravated case.

FAMU also argued that COI failed to consider and weigh the stark contrast between the financial penalties prescribed here and the financial penalties prescribed in recent and similar cases.  FAMU argued that since 2016, a total of nine Division I infractions cases have been processed concerning eligibility cases which demonstrate that “The COI has never imposed a financial penalty of this magnitude in any other infractions case, much less an eligibility certification case involving a limited resource institution.” However, FAMU focused its arguments around four cases which it believes had similar fact patterns to this case.

Although this case may have some similar characteristics to the cases cited by FAMU, there are distinct and significant differences, as well. First, each case cited by FAMU has a different level classification than this case. The level classification of an infractions case identifies the penalty range that could be prescribed by the panel from the penalty guidelines. Second, FAMU has a history of previous infractions cases, not found in cases cited by FAMU. Third, the cases cited by FAMU did not involve institutions that committed violations while on probation from a previous infractions case. In this case, the violations occurred while the appellant was on probation, as the result of a 2015 infractions case. Finally, in all four of the cited cases, COI determined that mitigating factors should be applied to the case, and no mitigating factors were applied in this case.

While we recognize there are past cases that demonstrate that the panel has deviated from the penalty guidelines, this committee has noted that earlier decisions of the Committee on Infractions in which leniency was granted, or there was a departure from core penalties, do not require the Committee on Infractions to do so in future cases. Given the distinctions between the cited case precedent and this case, the appellant failed to demonstrate that the panel improperly weighed or applied case precedent.

Regarding the prescription of the penalty, the penalty guidelines, as referenced in Article 19 are articulated in such a way to fairly distribute penalties based upon the financial earnings of the institution. In this case, the penalty prescribed by COI was within the penalty range, as set forth for Level I-Aggravated cases. Additionally, of the penalties that could have been prescribed in this case, the appellant received the lowest penalty for a Level I-Aggravated case.

The Committee has previously stated that COI has significant discretion in its ability to fashion appropriate penalties for an overall infractions case. Additionally, it is within COI’s discretion to determine whether a deviation from a core penalty is warranted based on the specific circumstances of any given case. In this case, the penalty prescribed by COI was within the penalty range as set forth for Level I-Aggravated cases. We are hesitant to deviate from any penalty within the appropriate matrix options as an abuse of discretion absent a clearly arbitrary imposition.

For the above reasons, we do not find that the panel abused its discretion in prescribing a financial penalty of $5,000 plus three percent of the appellant’s total athletics budget.

Conclusion

The Committee affirmed the penalty issued by COI.

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