The Committee on Infractions (“COI”) found violations of NCAA legislation in men’s basketball program at the University of Connecticut (“UConn” or “Institution”).   The former head men’s basketball coach (“Coach”) filed an appeal.

Penalties Imposed by COI

Coach appealed the following findings of violations to the Committee:

1. A trainer provided extra benefits to three student-athletes when he gave them free training, lodging, meals and local transportation. The institution then failed to withhold the ineligible student-athletes from subsequent competition, which resulted in impermissible competition and expenses.
2. The men’s basketball program exceeded permissible CARA limitations during the preseason over four academic years when it failed to record time from pick- up games that became CARA due to the actions of student managers, and the program also exceeded the number of countable coaches when the video coordinator provided impermissible coaching instruction during the latter three of these years.
3. The head coach violated ethical conduct legislation when he knowingly provided false or misleading information during the investigation regarding violations.
4. The head coach violated ethical conduct legislation and failed to cooperate when he declined to participate in a second interview with the enforcement staff after his termination.
5. The head coach violated head coach responsibility legislation through his failure to monitor staff, personal involvement in violations, and failure to stop and prevent violations.

Coach also appealed the following penalties prescribed by COI to the Committee:

1. Show-cause order: The head coach violated ethical conduct legislation when he knowingly provided false or misleading information during the investigation. He also failed to cooperate and further violated ethical conduct legislation when he declined to participate in a second interview after his termination from Connecticut. Therefore, the head coach shall be subject to a three-year show- cause order from July 2, 2019, to July 1, 2022. Pursuant to COI IOP 5- 15-3-1, if the head coach seeks employment or affiliation with any athletically related position at an NCAA member institution during the three-year show-cause period, any employing institution shall be required to contact the Office of the Committees on Infractions (OCOI) to make arrangements to show cause why restrictions on all athletically related activity should not apply.
2. Head coach restriction: The head coach violated head coach responsibility legislation when he failed to monitor his staff and promote an atmosphere of compliance. Bylaw 19.9.5.5 and the Figure 19-1 penalty guidelines contemplate head coach suspensions to address head coach responsibility violations. Therefore, should the head coach become employed in an athletically related position at an NCAA member institution during the three-year show-cause period, the head coach shall be suspended from 30 percent of the first season of his employment.16 The suspension shall run concurrently with the first year of the show-cause order. Because the show-cause order restricts the head coach from all athletically related activity, this suspension is subsumed within the show-cause order.

Committee’s Resolution of the Findings of Violations

In the appeal, Coach challenged several of the findings of violations. The standard used by COI when making its decisions regarding factual findings, conclusions and findings of violations, states that COI will base its decisions 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.” (NCAA Bylaw 19.7.8.3)

In reviewing COI’s decision, the Committee may overturn factual findings and its conclusion that one or more violations occurred on appeal only on a showing by the appealing party that:

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. (Bylaw 19.10.1.2)

Underlying Factual Findings

In his appeal submissions and during the oral argument, Coach primarily focused on identifying inconsistencies in the information provided during individuals’ interviews and challenging the credibility and reliability of those individuals in an attempt to demonstrate that the appealed findings of violations were clearly contrary to the information presented to COI. Several sections of the interview transcripts were quoted and Coach argued for a different view of the accuracy and credibility of the individuals who provided information in this infractions case. Coach argued that COI erred in its application and/or weighing of the individuals’ interviews and affidavits.

In the NCAA’s infractions process, COI determines the credibility of individuals who provide information in infractions cases. Generally, it is in the best position to assess and weigh the truthfulness and accuracy of the information as well as assessing bias or hostility that may impact the information provided by individuals. 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 we 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 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. That the Infractions Appeals Committee will consider all the information that was presented to the Committee on Infractions does not mean that it will conduct an infractions hearing de novo.”

For the violation related to a trainer providing extra benefits, Coach argued that the student-athlete who admitted that the trainer provided free training lacked credibility due to contradictions in his interviews. COI recognized that the student-athlete had not been fully forthcoming in his interviews.  However, COI found that other information supported the statements in the student-athlete’s fourth interview and found credible his explanation for why he did not disclose that he trained with the trainer.

For the violation related to exceeding the legislated limits for countable coaches when the video coordinator provided coaching instructions to student-athletes, Coach identified information provided by other individuals in this case that he believes supports his arguments that this finding of violation is contrary to the information presented to COI. Yet, COI relied on information provided by three (3) individuals, two (2) student-athletes who received instructions from the video coordinator and a student manager who observed the video coordinator providing instruction to student-athletes.

For the violation related to Coach providing false and misleading information to the NCAA enforcement staff, Coach argued that the information associated with this violation was speculative and contradictory. Coach challenged information provided by the associate head coach and identified interviews provided by other individuals in this case to support his arguments.  COI argued that there is extensive evidence in the record to substantiate this finding of violation. COI pointed to information from the involved recruit, student-athletes and staff which contradicts the Coach’s version of events related to this violation.

For each of these findings of violations, Coach challenged the credibility of some individuals who provided information in this case and pointed to an alternative narrative that could be derived from the information in the record before the panel. However, as noted above, COI assesses and determines the credibility of individuals and the information he/she provides. The Committee has been “deferential to the Committee on Infractions in determining credibility of evidence before it, specifically in relation to weighing the veracity of individuals before it, and is hesitant to overturn such determinations absent a clear demonstration to the contrary.” The University of Southern Mississippi, Former Head Men’s Basketball Coach Infractions Appeals Committee Decision (February 2, 2017) Page No. 5. Further, Coach must demonstrate more than an alternative narrative based on the information in the record. Here, Coach has failed to demonstrate that the information he used to challenge the credibility of some individuals, who provided information in this case and to support his narrative, clearly outweighed the information used by COI to support these findings of violations. Therefore, the Committee affirmed these findings of violations.

Unethical Conduct and Failure to Cooperate

COI found that Coach violated the unethical conduct legislation when he declined to participate in a second interview with the NCAA enforcement staff and UConn. Coach argued, before COI and in his appeal, that he did not violate the bylaw because he declined to participate in a second interview on the advice of his employment litigation counsel to “…abstain from a second interview until such time as the grievance arbitration process could be resolved.” Additionally, he alleged that the second interview could be detrimental to him in a separate legal proceeding. Finally, he argued that he did not withdraw entirely or disengage from the process and “continued to cooperate as much as possible” by providing various records to the NCAA enforcement staff.

COI argued that former institutional staff members have an affirmative obligation to cooperate fully and assist the NCAA enforcement staff, COI and the Committee to further the objectives of the NCAA and its infractions process. It argued that the NCAA enforcement staff had the express authority to request information and that Coach failed to participate in an interview requested by the NCAA enforcement staff.  Further, COI stated that there is no automatic exception to full cooperation for reliance on the advice of counsel nor does such reliance or partial cooperation negate the responsibility of an individual to fully cooperate in the infractions process.

Cooperation by institutions and individuals in the infractions process is central to the NCAA having an effective process that upholds integrity and fair play among the NCAA membership, and ensures that those institutions and student-athletes abiding by the NCAA constitution and bylaws are not disadvantaged by their commitment to compliance. In this case, Coach declined to participate in a second interview due to concerns related to the potential impact on a pending legal proceeding. However, Coach participated in the hearing before COI and answered its questions even though the same legal proceeding was still pending. It is difficult for the Committee to draw a distinction between the circumstances at the time of the request for a second interview and the circumstances at the time of COI’s hearing in which Coach fully participated. Additionally, Coach did not provide any further explanation for his failure to participate in the second interview beyond the advice provided by his counsel and that the university would have access to the substance and content of the second interview.  Even with Coach participating in the initial interview and cooperating with the production of documents, the bylaw requires full cooperation which the appellant failed to meet by declining to participate in a second interview with the enforcement staff. Therefore, we affirm this finding of violation.

Head Coach Responsibility

COI found that the appellant failed to monitor his staff, in particular the student managers and the video coordinator. As related to the student managers, COI determined that Coach was aware that the student-athletes played pick-up games attended by student managers but failed to monitor the student managers’ actions to ensure the pick-up games complied with NCAA legislation. For the video coordinator, COI found that Coach instructed the student-athletes to visit the video coordinator for questions about plays but failed to ensure that the video coordinator did not engage in impermissible instruction. Further, COI determined that by being personally involved in violations, providing false and misleading information, and failing to prevent impermissible training, COI failed to promote an atmosphere of compliance.

Coach argued that the finding of violation that he failed to promote an atmosphere of compliance was clearly contrary to the information presented to the panel. He points to information that he believes shows that the appellant “demanded compliance with the rules, constantly educated his staff, regularly reviewed staff activity, created an atmosphere of compliance, demanded respect for the rules, produced a track record of compliance, and regularly communicated with compliance staff.”

Head coaches have an obligation to promote a culture of compliance among the entire team, including assistant coaches, staff and other student-athletes, and monitor individuals in the program that are supervised by the head coach. This concept is in Bylaw 11.1.1.1. Previously, there were times when assistant coaches or other administrators were involved in serious violations, and the head coach would claim ignorance regarding such violations while indicating that such responsibilities were entrusted to their assistant. The adoption of the bylaw established that the head coach would be presumed to have knowledge of and responsibility for the actions of those associated with the team which the head coach directly or indirectly supervised. Later, the bylaw was modified to shift from the presumption of knowledge to a presumption of responsibility. Now, a head coach is presumed responsible for the actions of his or her staff that result in a violation. In order to rebut the presumption and escape responsibility, a head coach must establish before COI that he or she has done all that is necessary to monitor the individuals (supervised by the head coach) in the program and create an atmosphere of compliance in his or her program.

COI acknowledged the Coach’s “previous lack of violations, examples of good communication, that he encouraged staff to report issues and efforts to educate staff.” Even with these positive actions and approach, Coach provided false and misleading information to the NCAA enforcement staff as well as failed to take action on red flags and ask questions related to the program. Asking questions and monitoring activities is an important component of the responsibilities of a head coach and of rebutting the allegation of a violation of NCAA Bylaw 11.1.1.1. Coach was aware of the pick-up games that were attended by student managers, directed student-athletes to the video coordinator for questions and was aware a student-athlete was participating in training. However, he failed to ask questions and inquire further to gain a greater understanding of these activities and ensure compliance with NCAA legislation. Therefore, the Committee affirmed this finding of violation.

Procedural Arguments

In his rebuttal, Coach identified several new arguments related to procedural error which were not included in his written appeal, the initial submission. According to Bylaw 19.10.3.3, the rebuttal may only address issues contained in the initial submission or in COI’s response. Coach did not raise these procedural error issues in his written appeal, the initial submission, and COI did not discuss any procedural error issues in its response. These procedural error arguments made by Coach in his rebuttal were not properly before the Committee for consideration or review. Therefore, the Committee did not consider these arguments in its review of this appeal.

Committee’s Resolution of Penalties

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.

While Coach identified in his notice of intent to appeal that he was appealing the penalties referenced above prescribed by COI, he included little or no argument related to whether the prescription of the appealed penalty was an abuse of discretion. As such, Coach failed to demonstrate that COI abused its discretion in prescribing such penalties.

Conclusion

The Committee affirmed the factual findings and penalties issued by COI.

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