The Committee on Infractions (“COI” or “panel“) found violations of NCAA legislation in the University of Massachusetts, Amherst’s (“UMass” or “institution” or “appellant“) men’s basketball and women’s tennis programs. COI determined that this was a Level II-Mitigated case and prescribed penalties accordingly. This case centered on violations of NCAA bylaws governing financial aid and withholding ineligible student-athletes from competition.

Appeal of Violations and Penalties

UMass appealed the following violations:

Over three academic years, UMass provided financial aid packages that aligned with on-campus living expenses even though the student-athletes moved off-campus during the semester. The higher on-campus living expense payments caused the student-athletes to exceed their full cost of attendance and constituted impermissible financial aid. As a result, the student-athletes became ineligible and UMass did not withhold them from competition. UMass also provided them with actual and necessary expenses associated with those competitions. The violations are Level II.

UMass also appealed the following penalties prescribed by COI:

Probation: Two years of probation from October 16, 2020, through October 15, 2022.

Vacation of team and individual records: Ineligible participation in the men’s basketball and women’s tennis programs occurred over portions of three academic years as a result of UMass awarding financial aid to 12 student-athletes in excess of their full cost of attendance. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3 and COI Internal Operating Procedure 5-15-7, UMass shall vacate all regular season and conference tournament wins, records and participation in which the ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for competition. Further, if the ineligible student-athletes participated in NCAA postseason competition at any time they were ineligible, UMass’ participation in the postseason contests in which the ineligible competition occurred shall be vacated. The individual records of the ineligible student-athletes shall also be vacated. However, the individual finishes and any awards for all eligible student-athletes shall be retained. Further, UMass’ records regarding its men’s basketball and women’s tennis programs, as well as the records of their head coaches, shall reflect the vacated records and be recorded in all publications in which such 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 that may subsequently hire the affected head coaches shall similarly reflect the vacated wins in their 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 toward specific honors or victory “milestones” such as 100th, 200th or 500th career victories. Any public reference to the vacated records shall be removed from the athletics department stationery, banners displayed in public areas and any other forum in which they may appear. Any trophies awarded by the NCAA in men’s basketball and women’s tennis shall be returned to the Association.

Committee’s Resolution of the Violations Raised on Appeal

In reviewing the decision in this case, the Infractions Appeals Committee (“Committee”) may overturn on appeal COI’s factual findings and its conclusion that one or more violations occurred 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.

In this case, the appellant agreed that during the 2014-15 through 2016-17 academic years, it violated financial aid legislation when it over-awarded financial aid to 12 student-athletes on 13 occasions in two sport programs. The impermissible financial aid packages fell into two categories: (1) student-athletes who continued to receive a telecom fee associated with dorm phones after they moved off campus; and (2) student-athletes whose on-campus housing was more expensive than their off-campus housing. However, the appellant disagreed that a finding of NCAA Bylaw 12.11.1 applied to the facts of this case. Specifically, the appellant provided financial aid packages that aligned with on-campus living expenses even though the student-athletes moved off campus during the semester. The higher on-campus living expense payments caused the student-athletes to exceed their full cost of attendance and constituted impermissible financial aid. As a result, the student-athletes became ineligible and the appellant failed to withhold the student-athletes from competition. In total, the ineligible student-athletes participated in 186 contests, and the appellant provided the student-athletes with impermissible expenses associated with those competitions.

The appellant made two arguments to support its position related to the finding that NCAA Bylaw 12.11.1 was clearly contrary to the evidence presented to the panel. First, the appellant maintained that the panel relied on an erroneous conclusion that the violation occurred as a result of a “misunderstanding of financial aid legislation,” “inaction” and “misapplication of financial aid bylaws and/or inattention” rather than a mere oversight attributed to human error. The appellant maintained that the panel’s conclusion derives from a reliance on a statement made by the compliance coordinator which related to information provided to her by the former associate athletics director. According to the appellant, this statement was not supported by the record, or an analysis of the appellant’s financial aid processes and other student-athlete awards during the time period the violations occurred.

The second argument set forth by the appellant is that the panel’s finding of a NCAA Bylaw 12.11.1 violation is inconsistent with the intent and plain language of the bylaw and that the panel cited the bylaw simply to bolster a vacation of records penalty. The appellant further maintained that NCAA Bylaw 12.11.1 supports that an institution’s obligation to identify ineligibility is predicated on whether an institution has knowledge of the student-athlete’s ineligibility.

In response to the appellant’s written appeal, the panel argued that the appellant cites the appellant’s own speculative statements, lack of knowledge and admissions to support the belief that the compliance coordinator’s statement in reference to what the former associate athletics director said about the telecom fee was “speculation” or “[in]accurate.” Further, the panel argued that NCAA Bylaw 19.7.8.1 gives the panel authority to base its decisions on information it believes is “credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs.”

As it relates to the appellant’s second argument, the panel maintained that NCAA Bylaw 12.11.1 is simple and straightforward in that if a student-athlete is ineligible, institutions must withhold the student-athlete from competition until the student-athlete is eligible.  Actual knowledge of a student-athlete’s ineligibility is not a requirement for NCAA Bylaw 12.11.1 to apply in fact patterns in which ineligible student-athletes participate in competition.

In reviewing the finding prescribed in this case, the appellant must show more than an alternative reading or application of the information exists. As the 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.

University of Mississippi, Infractions Appeals Committee Report (May 1, 1995) Page No. 8.

Additionally, the Committee stated it has previously stated 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.”

The appellant raised some alternative versions of what could have happened that led to the violations in this case. However, the panel reasonably relied on the compliance coordinator’s statements about providing the telecom fee to the student-athletes who moved off-campus, and the appellant failed to demonstrate that the facts found by the panel were clearly contrary to the information presented to the panel.

Further, the plain language of NCAA Bylaw 12.11.1 specifies that, if a student-athlete is ineligible under the provisions of the constitution, bylaws or other regulations of the Association, the institution shall be obligated to immediately apply the applicable rule and to withhold the student-athlete from all intercollegiate competition. Unlike other NCAA bylaws, NCAA Bylaw 12.11.1 does not expressly include a “knowledge” requirement. Thus, the panel is not required to determine knowledge or the level of institutional culpability prior to determining whether a violation of NCAA Bylaw 12.11.1 occurred. An institution may be held responsible for failing to withhold an ineligible student-athlete from competition even though the institutional staff member(s) did not know at the time that the student-athlete was ineligible.

The Committee affirmed the finding of violation.

Committee’s Resolution of the Penalties Raised on Appeal

A.  Review of Two-Year Probation

Committee may set aside a penalty prescribed by COI on appeal only on a showing that the imposition of the penalty is an abuse of discretion. Further, 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 Report (June 30, 2009) Page No. 23.

The appellant argued that the panel abused its discretion in prescribing a two-year probation penalty in this case when it failed to weigh and consider case precedent. Specifically, the appellant argued that of the 38 Level-II Mitigated cases decided by COI since 2014, only four, including the appellant’s case, have been subject to a probationary period of two or more years. Further, the appellant maintained that two of those cases involved a failure to monitor, and the remaining case was processed through the negotiated resolution process and the institution agreed to a three-year probationary period with the NCAA enforcement staff.

In response to the appellant’s arguments, the panel contended that the two-year probationary period prescribed by the panel falls within the core penalty range for an infractions case classified as a Level II-Mitigated case. The panel further argued that since this core penalty is approved and expected by the membership, as outlined in Figure 19-1, the penalty was appropriate.

In addition, the panel was concerned that the appellant did not detect the violations earlier and should have “scrutinized the four men’s basketball student-athletes when they were forced to move off-campus due to student misconduct and disciplinary issues.” The panel explained that “[p]robation, while prescribed as a core penalty, also provides an opportunity for institutions to monitor and remediate any weaknesses that may exist in an institution’s athletics program with the appropriate member oversight through the COI.”

As noted above, the appellant maintained that only four of the 38 Level II-Mitigated infractions cases decided by COI since 2014 included a probationary period of two or more years. Although the appellant’s written appeal did not include a list of the referenced 38 cases, the Committee conducted a search of Level II-Mitigated cases since 2014 and found 37 cases, including the appellant’s case. Of those 37 cases, 12 were resolved via the negotiated resolution process (including the University of Pittsburgh Negotiated Resolution (February 20, 2020) cited by the appellant), and per NCAA Bylaw 19.5.12.4, approved negotiated resolution cases have no precedential value. Therefore, the Committee reviewed the remaining 25 cases. In that review, the Committee noted the adoption of NCAA Division I Proposal No. 2016-127 (infractions program – penalty guidelines) in 2017, which expanded the range for the probation-period penalty for a Level II-Mitigated infractions case from “0 years” to “0 to 2 years.” As a result of the implementation of the revised penalty structure, the Committee determined that the use of the 14 Level II-Mitigated cases decided prior to August 1, 2017, is not persuasive case precedent, as the default penalty for probation was “0” years.  The remaining 11 Level II-Mitigated infractions cases had probationary periods that were almost equally distributed within the penalty matrix options, including a distribution of penalties for the four institutions with a failure to monitor finding.

We understand UMass’s concern regarding the prescription of the probationary period, given that the panel did not find a failure to monitor violation against the appellant and the limited number of institutions that have been subjected to a probationary period of two or more years. However, NCAA Bylaw 19.9.5.7 gives the panel discretion to determine penalties based on specific circumstances of the case, and we have previously stated that the panel has significant discretion in its ability to fashion appropriate penalties for an overall infractions case. Saint Mary’s College of California Infractions Appeals Committee Decision (October 14, 2013) Page No. 5. In this case, the penalty prescribed by the panel was within the penalty range as set forth for Level II-Mitigated cases. The Committee stated it is hesitant to conclude that any penalty within the appropriate matrix options is an abuse of discretion absent finding that the panel was clearly arbitrary in prescribing such a penalty.

The Committee concluded COI did not abuse its discretion when prescribing a two-year probation penalty.

B.  Review of Vacation of Records

The appellant acknowledged that over a period of three years, 12 student-athletes in its men’s basketball and women’s tennis sport programs received financial aid in excess of the full cost of attendance. However, the appellant argued that the panel abused its discretion when prescribing a vacation of records penalty by:

1. Misapprehending the underlying legal standards that apply to a vacation of records penalty and misconstruing relevant case precedent;
2. Basing the vacation of records penalty upon a clearly erroneous factual finding concerning NCAA Bylaw 12.11.1;
3. Failing to consider and weigh relevant factors; and
4. Abusing its discretion by imposing a vacation of records penalty that is arbitrary, capricious and irrational.

While the panel addressed the appellant’s individual arguments in its response and during the oral argument, its central argument for the affirmation of the vacation of records penalty was that the panel has the discretion to prescribe a vacation of records penalty in Level I and II infractions cases where a student-athlete participated in competition while ineligible, which is also further supported by a long history of case precedent.

1. Misapprehending Legal Standards and Relevant Case Precedent.

The appellant maintained that in prescribing a vacation of records penalty, the panel disregarded its own standards outlined in the COI’s Internal Operating Procedure 5-15-7 because none of the six enumerated circumstances outlined in the procedure occurred in this case. The appellant further argued the panel misconstrued relevant case precedent when the panel prescribed the vacation of records penalty.

COI’s Internal Operating Procedure 5-15-7 sets forth the circumstances, when present, that make the prescription of a vacation of wins and records penalty more appropriate. Those circumstances include:

1. Academic violations;
2. Serious intentional violations;
3. Direct involvement of a coach, high-ranking school administrator or a representative of the institution’s athletics interests (commonly referred to as a booster);
4. A large number of violations;
5. A recent history of Level I, Level II or major violations, or
6. When the panel concludes that a failure to monitor or lack of institutional control existed.

The presence of the above factors merely increases the likelihood of a vacation of records penalty, and, as this committee has noted in the past, none of the factors are required to be present for a vacation of records penalty to be prescribed.

The panel retains the discretion to prescribe a vacation of records penalty when it believes the circumstances are warranted. While the appellant tries to distinguish cases in which the Committee on Infractions prescribed or should have prescribed a vacation of records penalty, it is still within the panel’s discretion to determine the penalties based on the specific circumstances of the case. The Committee must apply its current standard of review in determining whether to affirm or vacate penalties prescribed in infractions cases. Under the current legislation and case precedent, COI has routinely prescribed a vacation of records when student-athletes competed while ineligible, and such penalties have been affirmed by this committee. While there may be a very small number of cases in which COI chose to use its discretion to not prescribe a vacation of records penalty, it is within the panel’s purview to determine whether deviation from a customary additional penalty, such as a vacation of records penalty, is warranted based on the specific circumstances of a case. In this case, the panel noted that based on the totality of the circumstances, including that the violations involving 12 student-athletes in two sports went undetected for three academic years, the vacation of records penalty was appropriate to restore the competitive inequity that UMass benefitted from when the ineligible student-athletes competed.

The Committee concluded the record did not support a determination that the panel abused its discretion by prescribing a vacation of records penalty.

2. Basing the Vacation of Records Penalty Upon a Clearly Erroneous Factual Finding Concerning Bylaw 12.11.1.

As noted in a previous section, the appellant and the panel outlined their positions on whether the panel erred in its application of NCAA Bylaw 12.11.1. The Committee affirmed the finding of the violation. Thus, the  Committee concluded the vacation of records penalty was not based on a clearly erroneous finding of a NCAA Bylaw 12.11.1 violation.

3. Failing to Consider and Weigh Relevant Factors and Whether the Vacation of Records Penalty is Being Used as a Core Penalty.

The appellant made three arguments to support its position that the panel failed to consider and weigh relevant factors when it prescribed a vacation of records penalty. For the first two, the appellant restated its position that: (1) the panel did not apply a consistent penalty when it failed to consider relevant case precedent and disregarded COI’s Internal Operating Procedure 5-15-7; and (2) the panel’s reliance on the conclusion that the appellant knew or should have known about the financial aid over-awards, and reliance on the compliance coordinator’s testimony were improper factors. The panel’s position on the appellant’s first two arguments has been previously addressed by this committee in this decision.

In its third argument, the appellant argued that the prescription of a vacation of records penalty is an attempt by the panel to make it a “de facto” core penalty rather than an additional penalty. In support of this position, the appellant noted that NCAA Division I Proposal No. 2019-94 and NCAA Division I Proposal No. 2019-130, which were tabled in March 2020, are contrasting proposals and demonstrate that the membership has not provided direction that a vacation of records penalty should be considered as a core penalty prescribed in the infractions process. The appellant also maintained that the panel’s conclusion that a competitive advantage was gained was improper and was “undercut” when it failed to apply the same standard in other cases.

In response, the panel maintained that it does not apply a strict liability standard, nor has it treated a vacation of records as a “de facto penalty.” The panel further argued that it engages in a “totality of the circumstances, fact-specific analysis and considers past precedent when determining whether a vacation of records penalty is appropriate.”

The appellant’s arguments regarding the panel misapplying its internal operating procedures and case precedent are not persuasive. While the operating procedures and case precedent provide guidance, NCAA Bylaw 19.9.7-(g) is clear on its face that the panel may prescribe a vacation of records for contests “in which a student-athlete competed while ineligible.” Thus, a student-athlete competing while ineligible is the only “requirement” necessary for a panel to prescribe a vacation of records penalty. Once the conclusion of ineligibility is made, the panel has significant discretion to determine, based on the circumstances of the case, whether a vacation of records penalty is warranted. As we noted above, this committee has previously determined none of the factors in the COI’s Internal Operating Procedure 5-15-7 are required to be present for the panel to use its discretion to prescribe a vacation penalty.

4. Abusing its Discretion by Imposing a Vacation of Records Penalty that is Arbitrary, Capricious and Irrational.

The appellant argued that the “vacation-of-record penalty is arbitrary, capricious and irrational because it does not fit the violations or align with case precedent.” Citing the Southeast Missouri State Committee on Infractions Decision (June 18, 2008) as precedent, the appellant maintained that it “is particularly inappropriate” to vacate the women’s tennis team’s two seasons of records and a conference championship because “there were no ‘clear warning signs’ of the violations” and no finding of lack of institutional control or failure to monitor in this case.

As the Committee noted above, there may be a small number of cases in which COI chose to use its discretion to not prescribe a vacation of records penalty or to prescribe a vacation for only some of the wins in which the ineligible student-athletes competed. It is within the panel’s discretion to determine whether deviation from a customary additional penalty, such as a vacation of records penalty, is warranted based on the specific circumstances of a case.

Finally, this committee understands the impact a vacation of records penalty has on uninvolved staff and student-athletes, especially in the context of a team sport; this is an issue with which the membership has grappled for years. However, there are also decades of case precedent in which a vacation of records penalty has been prescribed when student-athletes competed while ineligible, regardless of the institution’s knowledge of the violation or the student-athletes’ culpability. While some may disagree with the vacation of records penalty, arriving at a different outcome would require the Committee to ignore rules adopted by the Association’s membership and the standards under which this committee is required to review appeals. If the Division I membership wishes to set a different course for the prescription of a vacation of records penalty moving forward, then a legislative change is the most appropriate course of action. Until then, this committee is bound by its standard of review, and an institution must show that the prescription of a vacation of records penalty is an abuse of discretion.

The  Committee concluded the panel did not abuse its discretion when prescribing the vacation of records penalty in this case.

Conclusion

The findings of violations and penalties were affirmed by the Committee.

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