The Committee on Infractions (“COI”) found violations of NCAA legislation in Georgia Institute of Technology’s (“Georgia Tech” or “Institution”) men’s basketball program and, specifically, violations committed by the former assistant men’s basketball coach and prescription of penalties associated therewith.  COI determined that this was a Level I-Standard case and prescribed penalties accordingly. This case centered on violations of NCAA bylaws governing recruiting inducements, extra benefits, unethical conduct and failure to cooperate.

Issues on Appeal

The former assistant men’s basketball coach appealed the following violation found by the COI:

IV.B2 The assistant coach lied in both of his interviews and attempted to persuade the host to change his story.

The former assistant men’s basketball coach also appealed a penalty prescribed by the COI. The appealed penalty reads as follows:

V.6 Show-cause order: The assistant coach admitted orchestrating the events that led to severe Level I violations on a highly touted prospect’s official visit. Specifically, the assistant coach admitted that he contacted a well-known former Georgia Tech men’s basketball player and booster to get the prospect, his host and him into a local strip club without incident. His direct involvement of the booster in the prospect’s official visit was a violation in and of itself but set off a chain of Level I violations. The assistant coach failed to fulfill his obligation to cooperate and did not meet ethical obligations when he originally lied about his involvement in the official visit violations, attempted to persuade the host to change his truthful story and then lied about those attempts. Therefore, the assistant coach will be informed in writing by the NCAA that the panel prescribes a three-year show-cause order pursuant to Bylaw 19.9.5.4. The show-cause period shall run from September 26, 2019, through September 25, 2022. During that time period, any employing institution shall prohibit the assistant coach from engaging in any athletically related duties. If the assistant coach obtains employment or affiliation with another NCAA member institution during the show-cause period, the employing institution shall, within 30 days of hiring him, be required to contact the Office of the Committees on Infractions (OCOI) to make arrangements to show cause why the penalty should not apply or notify the OCOI that it will abide by the show-cause order and fulfill reporting requirements.

Committee’s Resolution of the Issues Raised on Appeal

As outlined in NCAA Bylaw 19.10.1.2, to overturn a factual finding prescribed by the hearing panel, the appealing party must show:

1. A factual finding is clearly contrary to the information presented to the panel;
2. The facts found by the panel do not constitute a violation of the NCAA constitution and bylaws; or
3. There was a procedural error and but for the error, the panel would not have made the finding or conclusion.

The first issue presented by the appellant is whether the finding of violation IV.B2 was clearly contrary to the evidence presented to COI. In this case, the appellant did not dispute that he provided false and misleading information in his first interview with the NCAA enforcement staff. However, the appellant disputed both attempting to persuade the student host to change his testimony and lying about it in his second interview. In support of his assertion, the appellant maintained that the testimony provided by the student host and the associate athletics director “does not align and thus should not be able to be used in conjunction to establish credibility” in this infractions case. Further, the appellant argued that the statements of the student host and the associate athletics director do not prove that their version of the events surrounding the recruiting violations were truthful.

In its response to the appellant’s written appeal, COI maintained that its determinations are based on matters of witness credibility and are within the authority of COI. COI further argued that when making its decisions regarding whether factual findings and conclusions of violations exist, COI bases its decisions, as outlined in NCAA Bylaw 19.7.8.3, on:

“… information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs. The information upon which the panel bases its decision may be information that directly or circumstantially supports the alleged violation.”

COI maintained that its conclusions are supported by an established timeline and credible statements within the case record. According to COI, the student host’s testimony, while not perfect, is credible, particularly considering the events are corroborated by the associate athletics director. As such, COI argued that the factual findings are not clearly contrary to the information presented in this infractions case, and the facts as found support additional unethical conduct violations.

The Committee’s standard of review related to factual findings and findings of violations are set forth in NCAA Bylaw 19.10.1.2. Further, to demonstrate that a finding of violation is clearly contrary to the information presented, the appellant must show more than an alternative reading or application of the information exists. As this committee has stated in the University of Mississippi case:

“A showing that there was some information that might have supported a contrary result will not be sufficient to warrant setting aside a finding, nor will a showing that such information might have outweighed the information on which the committee based a finding. The Infractions Appeals Committee specifies that a finding may be set aside on appeal only upon a showing that it is clearly contrary to the information presented to the Committee on Infractions. A showing that there was some information that might have supported a contrary result will not be sufficient to warrant setting aside a finding, nor will a showing that such information might have outweighed the information upon which the committee based a finding. The Infractions Appeals Committee under existing legislation will set aside a finding only upon a showing that information that might have supported a contrary result clearly outweighed the information upon which the Committee on Infractions based the finding.”

Additionally, the Committee has previously stated, in University of Southern Mississippi, Former Head Men’s Basketball Coach,  it is “deferential to the Committee on Infractions in determining the credibility of the evidence, specifically in relationship to weighing the veracity of individuals before it, and it is hesitant to overturn such determinations absent a clear demonstration to the contrary.”

In this case, the appellant does not meet the high bar for the Committee to overturn the factual finding and the conclusion that he failed to cooperate by lying during his second interview with the enforcement staff. While the appellant raised inconsistencies in the testimony of the student host and the associate athletics director, he failed to demonstrate that the information presented in the case record clearly outweighed the information on which the panel based this unethical conduct finding.

Therefore, the Committee affirmed the finding of violation IV.B2.

Review of Penalty: Show-Cause Order (V.6)

The Committee may vacate penalties prescribed by COI only on a showing by the appealing party that the prescription of the penalties 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.”

The appellant sought a reduction in the show-cause penalty prescribed by COI based on three factors:

1. The case was improperly classified as Level I-Aggravated;
2. The appellant should have received credit for time already served toward the show-cause penalty; and
3. Because his case was linked to completely unrelated matters, the show-cause penalty started at an unreasonably late date.

Determination or Weighing of Aggravating and Mitigating Factors

The appellant made two arguments regarding why he believed his case was improperly classified by the panel as Level I-Aggravated. First, the appellant challenged COI’s determination and weighing of the aggravating and mitigating factors. Specifically, the appellant argued that the facts of the case do not support the inclusion of two aggravating factors: obstructing an investigation or attempting to conceal a violation [NCAA Bylaw 19.9.3-(d)] and unethical conduct, compromising the integrity of the investigation and failing to cooperate [NCAA Bylaw 19.9.3-(e)]. the appellant argued that he should have received credit for the mitigating factor of prompt acknowledgement of the violation and acceptance of responsibility outlined in NCAA Bylaw 19.9.4-(b). The appellant maintained that although he provided false and misleading information during the first interview, “that in no way compromised the investigation.” Further, the appellant “without further prompting or evidence, fixed his mistake” by requesting a second interview with the enforcement staff.

In response to the appellant’s arguments, COI maintained that the facts and conclusions support their application of all seven aggravating factors, including NCAA Bylaws 19.9.3-(d) and 19.9.3-(e), as well as the one mitigating factor NCAA Bylaw 19.9.4-(h). COI asserted that during its hearing, the appellant did not challenge any of the aggravating factors or propose any additional mitigating factors, thus signaling his acceptance of the factors employed in the decision.

NCAA legislation gives the panel discretion to determine whether mitigating and aggravating factors, included and not included in NCAA Bylaws 19.9.3 and 19.9.4, are present and how they are weighed in an infractions case. In this case, COI concluded that NCAA violations occurred and the facts and circumstances surrounding those violations supported the application of all seven aggravating factors it used. The panel provided an analysis and rationale for its decision to include the two aggravating factors at issue. In addition, because the appellant did not propose the prompt acknowledgement mitigating factor [NCAA Bylaw 19.9.4-(b)] prior to, or at the hearing, the panel had no reason to provide any analysis related to that particular mitigating factor.

Disagreement with the outcome is not enough for this committee to overrule the panel’s determination. The appellant was unable to demonstrate that the panel’s failure to exclude two aggravating factors and apply one mitigating factor was based on a clear error in judgment such that it was arbitrary, capricious or irrational. Moreover, case precedent demonstrates that the panel has regularly applied NCAA Bylaws 19.9.3-(d) and 19.9.3-(e) when individuals violate unethical conduct legislation by denying involvement in NCAA violations. Therefore, we do not find that COI improperly weighed or considered aggravating and mitigating factors in this case.

Time Served and Length of the Investigation

The appellant argued that he has intentionally not sought NCAA employment while this process has been ongoing. In addition, the appellant argued that his case was linked to completely unrelated matters, which took significantly longer to resolve. Due to this delay, the imposition of the show-cause penalty occurred 21 months after the investigation of his matter was completed. As a result, the appellant argued that he should receive credit for the time he has already served the penalty.

COI maintained that the penalty appropriately addresses the conduct of this case and aligns with past cases. COI also noted that the three-year show-cause order is at the low end of the prescribed range in the penalty guidelines for a Level I-Aggravated violation. Finally, COI argued that the appellant’s request for a reduction of the show-cause penalty is “based on a concept not contemplated by [NCAA] Bylaw 19 – ‘time served.’” For these reasons, COI argued it did not abuse its discretion in prescribing the three-year show-cause penalty to begin on the date the decision was issued which is COI’s standard practice.

The Committee concluded that neither NCAA bylaws, nor past infractions cases establish any precedent or legislative guidance that would require consideration of “time served” or the “length of an investigation.” As such, the appellant failed to demonstrate any of the factors required for a showing of an abuse of discretion.

For the above reasons, the Committee did not find that COI abused its discretion in prescribing a three-year show-cause penalty to begin on the date the decision was issued. Therefore, the Committee affirmed penalty V.6.

Conclusion

Finding of violation IV.B.2, as well as penalty V.6 are affirmed.

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