On June 15, 2017, the Committee on Infractions (“COI”) issued its report in which COI found violations of NCAA legislation in the University of Louisville (“Louisville”) men’s basketball program. On the basis of those findings, COI determined this was a major infractions case and imposed penalties accordingly. The case centered on violations of NCAA bylaws governing recruiting and impermissible extra benefits.

Penalties Imposed by COI

Louisville appealed the following imposed penalties and argued COI abused its discretion:

Financial penalties: The institution shall pay a financial penalty of $5,000 (institution imposed). The former operations director knew that his actions violated NCAA legislation. The student-athletes who participated in the striptease dances, prostitution and “tipping” of the strippers became ineligible for competition. They knew or should have known that their actions were contrary to NCAA legislation. Therefore, consistent with former Bylaw 19.5.2-(i) and Bylaw 31.2.2.4, the IAC’s report in Purdue University (2000), IAC Report No. 306 in University of Memphis (2010) and IAC Report No. 414 in Syracuse University (2015), the institution shall return to the NCAA all of the monies it has received to date through conference revenue sharing for its appearances in the 2012, 2013, 2014 and 2015 NCAA Men’s Basketball Tournaments. Future revenue distributions that are scheduled to be provided to the institution from those tournaments shall be withheld by the conference and forfeited to the NCAA. A complete accounting of this financial penalty shall be included in the institution’s annual compliance reports and, after the conclusion of the probationary period, in correspondence from the conference to the Office of the Committees on Infractions.

Vacation of records: The COI has not previously dealt with a case like this. A team staff member arranged striptease dances and acts of prostitution for enrolled student-athletes and prospects who eventually enrolled at the institution. Some of the prospects were minors. By his actions, the former operations director rendered those student-athletes and prospects ineligible for competition. The violations were serious, intentional, numerous and occurred over multiple years. Therefore, pursuant to former Bylaw 19.5.2-(h) and Bylaw 31.2.2.3, and consistent with IAC Report No. 306 in University of Memphis (2010) and IAC Report 414 in Syracuse University (2015), the institution shall vacate all regular season and conference tournament wins in which ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for competition through either the student-athlete reinstatement process or through a grant of limited immunity. Further, if any of the student-athletes competed in the NCAA Division I Men’s Basketball Championships at any time they were ineligible, the institution’s participation in the championships shall be vacated. The individual records of the ineligible student-athletes shall also be vacated. Further, the institution’s records regarding men’s basketball, as well as the record of the head coach, will reflect the vacated records and will be recorded in all publications in which men’s basketball records are reported, including, but not limited to, institutional media guides, recruiting material, electronic and digital media plus institutional, conference and NCAA archives. Any institution which may subsequently hire the head coach shall similarly reflect the vacated wins in his career records documented in media guides and other publications cited above. Head coaches with vacated wins on their records may not count the vacated wins to attain specific honors or victory “milestones” such as 100th, 200th or 500th career victories. Any public reference to these vacated contests shall be removed from athletics department stationery, banners displayed in public areas and any other forum in which they may appear. Any trophies or other team awards attributable to the vacated contests shall be returned to the Association.

To ensure that all institutional and student-athlete vacations, statistics and records are accurately reflected in official NCAA publication and archives, the sports information director (or other designee as assigned by the director of athletics) must contact the NCAA media coordination and statistics staff and appropriate conference officials to identify the specific student-athletes and contests impacted by the penalties. In addition, the institution must provide the NCAA media coordination and statistics staff a written report detailing those discussions. This document will be maintained in the permanent files of the NCAA media coordination and statistics department. This written report must be delivered to the NCAA media coordination and statistics staff no later than 45 days following the initial infractions decision release or, if the vacation penalty is appealed, at the conclusion of the appeals process. A copy of the written report shall also be delivered to the Office of the Committees on Infractions (OCOI) at the same time.

Committee’s Resolution of the Issues Raised on Appeal

In reviewing this case, a penalty prescribed by the hearing panel, 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. The hearing panel determined the credibility of the evidence. University of Mississippi, Public Infractions Appeals Committee Report May 1, 1995, Page No. 10.

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..

Alabama State University, Infractions Appeals Committee Public Report, June 30, 2009, Page No. 23.

Louisville challenged the vacation of records from the 2011-12, 2012-13, 2013-14 and 2014-15 academic years, as well as having to return the revenue earned from its appearances in the 2012, 2013, 2014 and 2015 NCAA Men’s Basketball Tournaments. It argued these penalties, based on the participation of student-athletes who were not culpable in the violations, received negligible benefits as a result, and for whom reinstatement would likely have been granted, were excessive and constituted an abuse of discretion by COI.  Louisville also argued COI did not consider material mitigating factors when determining an appropriate penalty. Finally, it argued there were sufficient questions of fact related to three student-athletes who competed during the 2011-12 and 2012-13 academic years, such that the vacation of records penalty for those years should be overturned.

COI argued the vacation of records and financial penalties were based on serious, intentional and numerous violations orchestrated by an institutional staff member for nearly four years. It argued the vacation of records for contests involving ineligible student-athletes is routine, and student-athletes do not have to be culpable for the vacation penalty to be appropriate. Rather, the serious nature of these violations resulted in the participation of ineligible student-athletes, and for this reason the vacation penalty was appropriate and not an abuse of discretion. COI determined the 2011-12 and 2012-13 academic years should not be disaggregated from the overall institutional violation and therefore the penalties from those years should also be upheld. With respect to the financial penalties, COI argued it exercise the appropriate authority under the legislation for the imposition of the same. It argued the financial penalties were particularly appropriate given the nature of the violations at issue in the case leading to the ineligible participation of multiple student-athletes during four men’s basketball tournaments. COI argued it appropriately considered the mitigating factors, including the corrective actions taken by the institution, in determining the penalties imposed. For these reasons, COI argued the vacation of records and financial penalties should be upheld.

In its review of the case, the Committee agreed with COI that the involved student-athletes knew or should have known they were receiving improper benefits in violation of NCAA legislation. In fact, Louisville conceded the student-athletes received improper benefits during the oral argument. Because the student-athletes received improper benefits, it follows they competed while ineligible, which in turn supports the vacation of records and financial penalties imposed by COI. In response to Louisville’s argument that one of the involved student-athletes who competed while ineligible would have been reinstated, it is the Committee’s position there is no guarantee regarding the reinstatement process. Georgia Institute of Technology Infractions Appeals Committee Public Report March 9, 2012, Page No. 14. Louisville is not free from punishment now based on an assumption regarding the reinstatement process with respect to other student-athletes at different institutions.

Pursuant to NCAA Bylaw 19.9.7-(g), a vacation of records penalty is appropriate when there are ineligible student-athletes involved in competition. COI has significant discretion to fashion appropriate penalties for the overall infractions at issue in a case. St. Mary’s College of California Infractions Appeals Committee Public Report October 14, 2013, Page No. 6. While COI retains discretion to apply (or not apply) the vacation penalty under any circumstances it believes appropriate, this Committee has indicated the likelihood of such a penalty is significantly increased when any of the following aggravating factors are present:

1. Academic fraud;

2. Serious intentional violations;

3. Direct involvement of a coach or high-ranking school administrator;

4. A large number of violations;

5. Competition while academically ineligible;

6. Ineligible competition in a case that includes a finding of failure to monitor or a lack of institutional control; or

7. When vacation of a similar penalty would be imposed if the underlying violations were secondary.

Georgia Tech Infractions Appeals Committee Public Report Page No. 14.

This Committee recognized the factors involved in vacation of records cases continue to evolve and expand. Because this case involved serious and intentional violations, which Louisville agreed were reprehensible and inexcusable, direct involvement of an institutional staff member, and a large number of violations, COI was within its legislated authority to impose the vacation of records penalty. Given the reprehensible nature of the violations, which resulted in ineligible student-athletes competing over a four-year time period, COI was also within its authority to impose the financial penalties assessed in this case. For this reason, the Committee did not find an abuse of discretion in the imposition of the penalties in this case.

Notwithstanding this Committee’s outcome in this case, the Committee stated it was concerned that COI did not sufficiently articulate how it balanced the mitigating factors, including the institution’s self-imposed penalties, with the aggravating factors. A thorough articulation of mitigating and aggravating factors helps the institution appearing before COI to understand the reasons underlying the penalties imposed as an element of fundamental fairness; it informs the NCAA membership for general deterrence and educational purposes; and helps this committee better evaluate on appeal whether the COI has appropriately weighed all the factors relevant to setting penalties in order to determine whether a penalty imposed is excessive and an abuse of discretion. The Committee considered this component of COI’s decision-making process and COI’s written decision of critical importance. Florida State University Infractions Appeals Committee Public Report January 5, 2010, Page Nos. 11-12.

Conclusion

The Committee affirmed the penalty.

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