The Committee on Infractions (“COI”) found violations of NCAA legislation in Georgia Institute of Technology’s (“Georgia Tech” or “Institution”) men’s basketball program.  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.

Penalties Imposed by COI

Georgia Tech did not appeal any of the findings of violations in this infractions case. Georgia Tech appealed some of the penalties prescribed by the Committee on Infractions. The appealed penalties are:

V.4 Scholarship reductions: Georgia Tech shall reduce the number of grants-in-aid awarded in men’s basketball by seven percent (or one grant-in-aid) during each year of probation. Specifically, Georgia Tech shall be limited to no more than 12 grants-in-aid for the 2019-20, 2020-21, 2021-22 and 2022-23 academic years. If Georgia Tech has already awarded its full allotment of grants-in-aid for the 2019-20 academic year, it is permitted to take two grant-in-aid reductions in either the 2020-21, 2021-22 or 2022-23 academic year.

V.9 The Level I recruiting violations occurred during a high-profile prospect’s official visit in conjunction with the men’s basketball competition. Therefore, during the first two years of probation (the 2019-20 and 2020-21 academic years), Georgia Tech shall be prohibited from scheduling any official visits in conjunction with home men’s basketball competitions

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.

Scholarship Reductions (Penalty V.4)

Georgia Tech made three arguments to support that COI abused its discretion when it attributed the aggravating factor in NCAA Bylaw 19.9.3-(m) to Georgia Tech. First, Georgia Tech argued COI “ignored NCAA enforcement’s position on the aggravating factor as well as enforcement and the institution’s agreement that the bylaw [19.9.3-(m)] should not apply to the institution.” The appellant contended that historically, COI has deferred to the NCAA enforcement staff’s position on the application of aggravating and mitigating factors. Second, Georgia Tech asserted that COI “failed to properly consider case precedent.” Specifically, the appellant argued the three cases COI cited in its decision to support the application of the aggravating factor were aberrations in case precedent. Georgia Tech argued that “[t]he disproportionate rate in which the COI assigned 19.9.3 (m) to involved individuals who intentionally committed the violations, and not their employer, is a material factor that the COI panel ignored.”  And finally, Georgia Tech argued that it “did not willfully or intentionally disregard the NCAA constitution or bylaws as demonstrated by material factors not considered” by COI. Georgia Tech identified these material factors as including: (1) that the former assistant coach acted alone and concealed his impermissible activities; and (2) that this case did not involve “charges implicating the institution or its head basketball coach” such as institutional control, failure to monitor or head coach responsibility.

COI argued that the undisputed facts support the application of NCAA Bylaw 19.9.3-(m), and Georgia Tech cannot “insulate itself from the acts of its staff.” To support this argument, COI highlighted that: (1) Georgia Tech invited the prospective student-athlete to the campus for a “highly structured process in an effort to recruit him”; (2) the former assistant coach “intentionally orchestrat[ed] the events in his official capacity” and as the prospective student-athlete’s “primary recruiter”; (3) “there is a substantial and heightened degree of institutional involvement and responsibility when institutions invite and welcome prospects and their families to campus on a structured official visit”; and (4) the former assistant coach lied about the violation while the appellant’s employee. Additionally, COI argued that the “parties’ position on aggravating and mitigating factors does not bind the COI to a particular application.” COI pointed to the membership designating COI “as the appropriate body to determine whether any factors that may affect penalties are present in a case,” and “[t]here is no requirement that any party support an aggravating or mitigating factor for it to apply to a case.” Finally, COI argued that case precedent supports the application of the aggravating factor, but noted that even if the factor was not applied, the case is a Level I-Standard case and the “penalty outcome would not have automatically been different.”

As stated previous appeals decisions, “[t]he NCAA legislation gives the panel discretion to determine whether mitigating and aggravating factors, included and not included in Bylaws 19.9.3 and 19.9.4, are present and how they are weighed in an infractions case.” COI is not bound or limited by the identification of or any agreement to aggravating or mitigating factors by an institution, involved individual and/or the enforcement staff. There is no requirement that the panel provide any deference to the agreements of the parties. Further, COI has the authority and discretion to consider, weigh and apply mitigating and aggravating factors not put forward or agreed to by the parties.

The NCAA has established that the control and responsibility for the conduct of intercollegiate athletics rests with an institution. (NCAA Constitution 2.1.1 and Constitution 6.01.1) As a result of that responsibility, institutions will be held accountable for violations that occur due to the actions or inactions of their staff, coaches, administrators, etc. In this case, COI determined that the former assistant coach “in his official capacity as an assistant coach”:

• “…intentionally involved a booster in recruiting and orchestrated a prospect’s visit to a strip club when he knew he could not.”
• “…willfully did not tell the truth and misled investigators when being interviewed about those events and attempted to persuade the host to change his [prior] story…during team

Based on this information, COI determined that Georgia Tech exhibited an intentional, willful or blatant disregard for the NCAA constitution and bylaws and applied aggravating factor NCAA Bylaw 19.9.3-(m) to the appellant. The former assistant coach’s employment with Georgia Tech was the only articulated rationale for the application of this aggravating factor to the appellant.

With this approach, this aggravating factor would be applied to an institution any time an employee commits a violation and demonstrates an intentional, willful or blatant disregard for the NCAA legislation, regardless of the circumstances related to the institution’s action or inaction. The institution is already held accountable for its employee’s violation by having to participate in the infractions process, by having a finding of an institutional violation and by having penalties prescribed (e.g., probation, vacation of records, scholarship reductions, recruiting restrictions). If the intention of the employee is attributed to the institution without a demonstration of relevant action (or lack thereof) by the institution, then a strict liability standard is created for the application of the aggravating factor to institutions when an employee intentionally, willfully or blatantly disregards NCAA legislation and commits an NCAA violation. We find that this approach eliminates the consideration of a material factor, institutional culpability, from the panel’s determination of the application of the aggravating factor.

In order to apply this aggravating factor to an institution, there must be a nexus or connection of action or inaction by the institution relevant to the violation. The nexus must be beyond mere employment status of the individual at the institution when the violation occurred. For example, the institution’s action or inaction will present itself in the context of an institution demonstrating a lack of control over, or a failure to monitor, its intercollegiate athletics program, or where the head coach fails to create an atmosphere of compliance or fails to monitor his/her staff. To be clear, these specific findings of violations are not required in an infractions case for the aggravating factor to apply to an institution. There must, however, be some specific factual findings of action or inaction by the institution relevant to the violation for the aggravating factor to apply to an institution.

In this case, the application of the aggravating factor was based on the conduct of the former assistant coach, and included no demonstrable ties to action, or lack thereof, by Georgia Tech. There is no reference to any action or inaction by Georgia Tech related to this aggravating factor. Further, the only rationale, provided in the decision, for attributing the former assistant coach’s intentional, willful or blatant disregard for NCAA legislation to the appellant was a statement that COI “has previously attributed this factor to institutions when employees commit intentional violations while acting in their official capacity.”

Therefore, COI abused its discretion when it failed to consider or to describe its weighing of the material factor of institutional culpability when applying aggravating factor Bylaw 19.9.3-(m) to the appellant. Thus, the Committee concluded the application of aggravating factor Bylaw 19.9.3-(m) and penalty V.4 are vacated.

Other Determinations Regarding Scholarship Reductions (Penalty V.4)

With the determination of the improper application of an aggravating factor, this case will be remanded to the panel for reassessment of the classification of the case within the prescribed level and the scholarship reductions penalty. However, the Committee continued to assess the other arguments put forward in this appeals case related to the scholarship reductions penalty.

Georgia Tech made two arguments to support its contention that COI abused its discretion when prescribing scholarship reductions for a period of four years. First, Georgia Tech argued that COI irrationally and arbitrarily relied on the length of the prescribed probation penalty to determine the length of this penalty. Second, Georgia Tech argued that COI failed to consider a material factor, case precedent, when establishing a four-year period for the penalty.

COI argued that it is specifically authorized, under NCAA legislation and Committee on Infractions’ internal operating procedures, “to prescribe reductions on financial aid awards during a specific period of time.” COI identified that the appellant “solely focuses on the official visit violations,” but the panel stated that critical to its analysis of a case “is a full consideration of all violations that occurred in the case” and “a reduction of seven percent (amounting to one scholarship) per year over the four-year probationary period is an appropriate penalty.” COI asserted that the scholarship reductions penalty prescribed in this case was less harsh than what could have been prescribed under the NCAA legislation and its own internal operating procedures. Finally, COI argued that this case is consistent with case precedent and highlights the SMU Committee on Infractions Decision.

To support their respective arguments, Georgia Tech and COI cited several previous infractions cases. However, many of these cases provide little precedential guidance or insight in that the length of time for the scholarship reductions was either self-imposed by the institution or processed through the negotiated resolution or summary disposition processes. This committee continues to have concerns regarding the precedential value, if any, of cases decided through the summary disposition process given what COI has previously described as its deference to agreements by the parties. This is especially true when the parties have agreed to a specific penalty or aggravating or mitigating factor at issue, instead of it being prescribed by the Committee on Infractions panel. After eliminating these cases, we focused our review of precedent on the following infractions cases: University of Missouri, Columbia Committee on Infractions Decision; Alabama A&M University Committee on Infractions Decision; SMU Committee on Infractions Decision; and Weber State University Committee on Infractions Decision.

In the Missouri case, COI prescribed a five percent scholarship reduction over a one-year period, and a three-year probation period. There was no connection between the period of probation and the length of the scholarship reduction. In the Alabama A&M case, COI permitted the institution “to aggregate the [scholarship] reduction over the five-year period of probation.” COI in the SMU case “gave credit” for the scholarship reductions that were imposed by the institution, and provided the institution “flexibility to determine how to implement the remaining … scholarship reductions … over the remaining probationary period.” Finally, in the Weber State case, COI noted that “[g]enerally, the committee prescribes scholarship reductions annually; however, given the totality of circumstances in this case, the committee prescribes the reduction to be aggregated over the probationary period.” Thus, in the applicable precedent cited, there is no clear tie between the length of the period of scholarship reductions and the length of the probationary period.

While we will not make a determination regarding whether prescribing scholarship reductions for each year of probation is an abuse of discretion, it is important that in the reconsideration of this penalty, the number and length of the scholarship reductions are consistent with case precedent. Additionally, cases with scholarship reductions that were self-imposed by the institution or agreed-upon in the summary deposition process have little or no precedential value. Finally, when the COI determined a deviation from existing case precedent is warranted, it is important for the Committee’s review of an appeal for COI to include in its decision the basis for such a deviation.

Official Visit Limitation (Penalty V.9).

Penalty V.9, which prohibits official visits in conjunction with home men’s basketball competition, was prescribed as one of the additional penalties pursuant to Bylaw 19.9.7. Georgia Tech made two arguments to support its position that the prescription of this penalty was an abuse of discretion. First, it asserted that “[b]ylaw 19.9.7 does not include recruiting restrictions as appropriate additional penalties because those types of penalties clearly fall in the domain of core penalties,” and that NCAA Bylaw 19.9.7-(l) was not intended to be used “to impose additional penalties as a loophole to extend core penalties” beyond those outlined in Figure 19-1. Second, the appellant argued that penalty V.5.b imposed the maximum limitation on official visits related to the men’s basketball program as a core penalty, and NCAA Bylaw 19.9.6 requires the existence and identification of extenuating circumstances by the panel which was not done.

COI argued that it “prescribed a prohibition on official visits in conjunction with home games for two years, and it did so as an appropriate penalty connected to the facts and violations of this case.” Further, the panel argued that penalty V.9 is an additional penalty included in the decision under the heading “Additional Penalties for Level I-Standard Violations (Bylaw 19.9.7),” and Bylaw 19.9.7 authorized the panel “to prescribe ‘[o]ther penalties as appropriate.’” COI asserted that penalty V.5.b is “different and separately identified” from penalty V.9 in that penalty V.5.b is related “to number and not a tailored scenario to home games.”

Both Georgia Tech and COI made arguments regarding the meaning of and authority provided in Bylaws 19.9.5, 19.9.6 and 19.9.7. The core of the appellant’s arguments is that a penalty in a category captured under core penalties may not be prescribed as an additional penalty, and COI disagreed with this assertion.

The Committee reviewed the language and sought additional information regarding the application and interaction of these bylaws. The rationale of NCAA Division I Proposal No. 2012-16, the proposal adopted to implement the current violation and penalty structure, established the expected outcomes and goals of the changes once adopted:

“The proposed multi-level violation structure will provide member institutions and involved individuals with better notice of potential penalties that may be prescribed if legislation is violated. Further, the structure will better ensure that enforcement efforts are focused on the most significant violations. The proposed procedural changes will (1) result in a more efficient resolution of alleged infractions, (2) allow institutions and involved individuals more control over the means by which cases are heard and ultimately resolved, and (3) enhance the perception of fairness of the process and bring more transparency to more components of the process. The proposed penalty guidelines will set a range of core penalties that the Committee on Infractions may prescribe in given situations (along with other available penalties, as appropriate) depending on the violation level and aggravating/mitigating factors in each case.”

While the rationale did not provide significant insight into the application and interaction of the bylaws, the proposal’s rationale identifies the October 2012 report of the NCAA Working Group: Collegiate Model – Enforcement as the source for additional information regarding the proposal. The Committee reviewed the working group’s report for further clarification of the intended meaning and application of the bylaws. In the working group’s overview of the proposed changes, the description of the penalty structure included the following:

“The proposed guidelines aim to find an appropriate balance allowing the Committee on Infractions sufficient discretion to prescribe penalties while also assuring stronger and consistently applied penalties. The group recognizes that, in addition to core penalties, the Committee on Infractions must retain discretion to customize prescribed penalties, depending on the facts of each case, to include other penalties outside of those identified as core and to depart upward or downward in extenuating circumstances.”

This language suggests that the working group developed a penalty structure which included two distinct groups of penalties. One would be the penalties identified as core penalties and the second would include other penalties that were not identified as core penalties.

Further on in the report, the working group specifically discussed what constitutes a core penalty. Core penalties would be those penalties identified by the membership which had “the most significant impact on an institution and the most deterrent effect on other institutions and individuals.” This led the working group to “recommend that the following penalties constitute core penalties and form the basis for the penalty guidelines: (a) competition limitations; (b) financial penalties; (c) scholarship limitations; (d) recruiting limitations; (e) probation; and (f) when applicable, show-cause orders.” Additionally, when discussing retaining the “repeat violator” penalties, the working group explained that because limitations on recruiting activities are core penalties addressed in the penalty guidelines, the elimination of all recruiting activities could be prescribed only if extenuating circumstances merited a departure from the core penalties.

The working group report included recommendations of core penalties and proposed legislative language as follows:

• Limitations are prescribed on the number of allowable official paid visits at the institution for varying lengths of time in given sports.
• Limitations are prescribed on the number of scheduled unofficial visits at the institution for varying lengths of time in given sports to include the provision of complimentary tickets and local transportation.
• Limitations are prescribed on the institution’s off-campus recruiting efforts for varying lengths of time in given sports
• Limitations are prescribed on the institution’s other recruiting efforts, including communication restrictions (e.g., telephone contact and written correspondence), for varying lengths of time in given sports.

Yet, in Attachment No. 6 and Proposal 2012-16, the language of first and fourth bullets was modified. The change in the language of the first bullet resulted an expansion of the core penalties related to official visits. However, the change to the fourth bullet eliminated a broader catch-all phrase and replaced it with language that only identified limitations on recruiting communications. Bylaw 19.9.5.6 states:

“Recruiting restrictions may include limitations for varying lengths of time on official visits; unofficial visits (the number of scheduled unofficial visits, provision of complimentary admissions and local transportation); recruiting communications (telephone and written correspondence); and off-campus recruiting activities.”

The phrase in the first bullet of “on the number of allowable” no longer preceded the phrase official visits in the bylaw. Removing this language broadens the types of limitations related to official visits considered core penalties such that any limitations applied to official visits would be considered a core penalty. Further, the fourth bullet was a broader statement that captured limitations “on the institution’s other recruiting efforts.” However, the bylaw includes no such language. Instead, the example in the fourth bullet, communications restrictions, was added to the bylaw which substantially narrowed the type of limitations identified in that bullet. These changes were substantive and had an impact on the core penalties identified in the bylaw. After reviewing this information, the Committee found that any limitations on official visits are identified as core penalties in NCAA Bylaw 19.9.5.6.

As previously mentioned, in this case, COI prescribed penalty V.9 as an additional penalty under NCAA Bylaw 19.9.7-(l). This penalty is a limitation on conducting official visits which precludes the institution from scheduling official visits in conjunction with home men’s basketball contests for two academic years. Given that this is a limitation on official visits, it is a core penalty. Further, it does not fall within the penalties outlined in Figure 19-1 of the NCAA Division I Manual. Pursuant to NCAA Bylaw 19.9.6, the panel would have to determine that extenuating circumstances existed in this case. In this case, the panel failed to meet the requirement of Bylaw 19.9.6 which is necessary when the panel deviates from Figure 19-1.18 The Committee on Infractions abused its discretion when prescribing penalty V.9 in that it was based in significant part on one or more irrelevant or improper factors (e.g., failure to accurately apply the NCAA legislation related to the prescription of infractions core penalties). Therefore, penalty V.9, which precludes scheduling official visits in conjunction with home men’s basketball contests, is vacated.

Conclusion

COI abused its discretion when it determined that the aggravating factor in NCAA Bylaw 19.9.3-(m) applied in this infractions case. Further, penalties V.4 and V.9 are vacated. Given these determinations, this case is remanded to the panel for reassessment of the classification within the assigned level for this case and prescription of the appropriate penalty based on that classification, if any, related to scholarship reductions (penalty V.4).

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