On March 6, 2015, the Committee on Infractions (“COI”) issued its decision involving infractions committed by Syracuse University (“Syracuse” or “Institution”), in which the COI found violations of NCAA legislation in the men’s basketball and football programs. On the basis of those findings, COI determined that this was a major infractions case and imposed penalties accordingly. Jim Boeheim (“Head Coach” or “Boeheim”) appealed COI’s findings and penalties as they related to him.
This case as it related to the Head Coach is centered on violations of NCAA bylaws governing the requirement to promote an atmosphere of compliance within the men’s basketball program and monitoring the activities of all institutional staff members involved with the program who report, directly or indirectly, to the Head Coach.
In reviewing this case, the NCAA Division I Infractions Appeals Committee (“Committee”) may overturn factual findings and conclusions that one or more violations occurred only if:
a. The hearing panel’s finding clearly is contrary to the evidence presented to the panel;
b. The facts found by the hearing panel do not constitute a violation of the NCAA constitution and bylaws; or
c. There was a procedural error and but for the error, the hearing panel would not have made the finding or conclusion. [Bylaw 22.214.171.124]
“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 . . . will set aside a finding only on a showing that information that might have supported a contrary result clearly outweighed the information on which the Committee on Infractions based the finding.” (University of Mississippi Infractions Appeals Committee Public Report, May 1, 1995, Page No. 10)
COI determines the credibility of the evidence.
The bar to overturning a factual finding by COI that one or more violations have occurred is quite high. It is not merely finding support for another conclusion based on the evidence presented before COI; rather that its conclusion is clearly contrary to the evidence presented.
Relative to the finding that the Head Coach failed to create an atmosphere of compliance, much of the appeal before the Committee centered on what is the proper test to make that determination. The Head Coach suggested that COI imposed a strict liability test in its determination that he failed to create an atmosphere of compliance within his program. The Head Coach rightfully submits that the use of a strict liability standard would be improper. If a strict liability standard were to be used, the fact that violations had occurred within the program by members of a head coach’s staff would be the end of the discussion and those findings alone would determine the head coach’s violation. The use of such a strict liability standard was ultimately rejected during adoption of the underlying bylaw, and COI, during this appeal, acknowledged that application of a strict liability standard would not be proper. The Committee found that COI recognized that point and did not use such a standard to determine the head coach’s liability.
With a determination that strict liability is not the proper standard and was not the standard used by COI, the question of what is the proper standard and was it properly applied becomes paramount. A review of the legislation and its intent demonstrates that once a serious violation(s) occurs in a program and a member of that program is determined to be responsible for that violation, then there is a strong presumption that the head coach of that program has ultimate responsibility for not creating an atmosphere of compliance in his or her program. At that point, the burden of rebutting the presumption passes to the head coach. In order to rebut the presumption and escape responsibility, the head coach must establish that he or she has done all that is necessary to create an atmosphere of compliance in his or her program. This is the burden that the head coach must meet to convince COI that the head coach has created an atmosphere of compliance within his or her program under this rule. The initial burden of proof in this case did not rest with COI, but rather with the head coach. It is not enough for the Head Coach to state COI did not prove that the Head Coach did not create an atmosphere of compliance or that COI did not tell the head coach what should have been done. That is not required of COI. In order to shift the burden, the head coach must establish what was affirmatively done to create the atmosphere of compliance.
In order to properly determine whether the conclusion reached by COI that the Head Coach did not affirmatively meet his burden was clearly contrary to the evidence, the Committee attempted to determine what attributes could be expected of a head coach to appropriately move in the direction of rebutting the presumption of failure to create an atmosphere of compliance and failure to monitor in a situation where the head coach may not have been directly involved in the violation, but where serious violations did occur. The head coach responsibility legislation does not establish a safe harbor and nor did the Committee. It is clear that this requires a facts and circumstances review and determination; however, the Committee believed some guidance was necessary. While the following list is not exhaustive, it should provide a contextual framework to help view the current appeal and give some guidance to the membership moving forward.
The Committee will consider the following factors when determining whether the presumption has been rebutted by a head coach:
1. A program where it is demonstrated that compliance is a shared responsibility through establishment of clear expectations for NCAA compliance, including expectations for immediately reporting actual and potential NCAA rules issues to compliance staff and allowing for an independent inquiry into any issues or potential issues.
2. Demonstrating that there is an understanding in the program that ultimate responsibility for the integrity of the program rests with the head coach, including understanding that the actions of the staff reflect on the head coach and violations will result in clearly articulated discipline.
3. Development of written policies regarding potential elite athlete issues.
4. A hands-on approach to spot checking frequently within the program to uncover potential or existing compliance problems including a propensity by the head coach to actively look for and evaluate red flags for potential violations; asking pointed questions; and regularly soliciting honest feedback to determine if monitoring systems are functioning properly.
5. Avoidance of any potential conflicts between the duties of staff toward program success and overall compliance efforts and/or explicit oversight by individuals outside of the program.
6. Timely and personal take charge by the head coach with respect to any violations or potential violations in the program, including an ongoing dialogue with staff to review any potential issues involving prospective student-athlete or current student athletes.
7. An explicit expectation that persons who report violations or potential violations will be protected from any potential retribution.
8. Timely, consistent and continuing education of all coaches, staff and student-athletes as to rules and regulations, including written agendas and evidence of subjects covered and issues discussed.
9. A clear understanding to consult with compliance staff on a regular basis; to ask compliance staff before acting, especially in any potential grey area.
Based on its review of the record, the Committee found that there was sufficient evidence for COI to have determined that the Head Coach failed to meet his burden. While the Head Coach stated a number of times that he follows the rules and expects others to do the same, there was not sufficient evidence presented to establish that he actually created an atmosphere of compliance that would rebut the required presumption. Additionally, there was no support in the record that the Head Coach was not provided sufficient opportunity to provide such evidence, and the Committee found no credence to the argument that a procedural error resulted in an erroneous finding. The Committee upheld COI’s findings that the Head Coach failed to create an atmosphere of compliance and, therefore, is liable under the head coach’s responsibility legislation. [NCAA Bylaw 126.96.36.199]
A penalty prescribed by COI, including determinations regarding the existence and weighing of any aggravating or mitigating factors, shall not be set aside on appeal except on a showing by the appealing party that the hearing panel abused its discretion. [NCAA Bylaw 188.8.131.52]
In the Alabama State case, the Committee stated:
“…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.” [Alabama State University Infractions Appeals Committee Public Report June 30, 2009, Page No. 23.]
Central to the resolution of whether COI abused its discretion is the role and effect of precedent – whether it was considered and weighed in this case. In the appeal submissions, the Head Coach and COI compared and contrasted this case with a number of previous major infraction cases. The Committee reviewed those cases and concluded that, given the violations found in this case, the imposition of a nine (9) conference game suspension, as opposed to a similarly defined suspension from the first nine (9) games, is a departure from precedent based on no direct involvement or acquiescence by the head coach in the underlying violations in this case. This is in sharp contrast to cases such as University of Tennessee, Knoxville, (impermissible contact and unethical conduct); University of Connecticut (awareness of impermissible recruiting calls and failure to report recruit and representative of athletics interest relationship); and St. Mary’s College of California (awareness of and arrangement of potential impermissible extra benefits; failure to monitor recruiting activities by individual with previous red flags).
The Committee recognized that COI should not be strictly bound to previous decisions when circumstances of intercollegiate athletics were qualitatively different than those which presently obtain. However, this does not mean that prior decisions provide no restraint on or guidance to COI and the Committee, or that changes in the environment in which NCAA member institutions operate, alone, can justify ignoring those prior decisions. It means only that the guidance provided by prior decisions is, and always has been, a matter of judgment. [University of Southern California Infractions Appeals Committee Public Report May 25, 2011, Page No. 21].
In appeals, the Committee looks to COI’s infractions decision for explanation of the rationale for prescribed penalties especially in the circumstances where there is a departure from precedent. In reviewing, the infractions decision there appears to be no evidence that the Head Coach’s lack of direct involvement or acquiescence in the underlying violations was taken into account in linking the penalty to the number of conference games as opposed to the next or first nine games.
COI failed to consider and weigh material factors, and, therefore, while the Committee found the penalty of nine (9) games to be justifiably sound, the hearing panel abused its discretion in the imposition of this penalty by moving those nine (9) games to conference games only rather than the next or first nine (9) games. Accordingly, the Committee modified the penalty and required the Head Coach to sit out the next nine (9) Syracuse men’s basketball games following the Committee’s decision.