On December 1, 2017, the Committee on Infractions (“COI”) issued its report in which COI found violations of NCAA legislation in the University of Mississippi’s (“Ole Miss” or “Institution”) football program. On the basis of those findings, COI determined this was a major infractions case and imposed penalties accordingly.

Penalties Imposed by COI

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

Postseason ban: Ole Miss shall end the 2017 football season with its last regular season game and shall not participate in postseason competition. (Self-imposed.) Ole Miss shall also end the 2018 football season with its last regular season football game and shall not participate in postseason competition.

Recruiting restrictions: Ole Miss prohibited all unofficial visits in fall 2017 from September 1 through October 19 and in fall 2016 for five weeks. Additionally, for the full term of probation, Ole Miss shall limit all prospective student-athletes in the sport of football to one unofficial campus visit per academic year.

Vacation of records: Due to their receipt of impermissible inducements and benefits as described in Section IV, the student-athletes referenced in the violations were rendered ineligible for collegiate competition. Many of them enrolled at, and competed for, Ole Miss. The violations were Level I and Level II, intentional, numerous and occurred over multiple years. Many of the violations involved institutional staff members. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3, and consistent with IAC Report No. 306 in University of Memphis (2010) and IAC Report 414 in Syracuse University (2015), Ole Miss shall vacate all regular season and postseason 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 a grant of limited immunity. The individual records of the ineligible student-athletes shall also be vacated. Further, Ole Miss’s records regarding football, as well as the record of the head coaches, shall reflect the vacated records and be recorded in all publications in which football 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 individuals who served as head coaches when the ineligible participation occurred shall similarly reflect the vacated wins in the head coaches’ 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 aid in accurately reflecting all institutional and student-athlete vacations, statistics and records 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, Ole Miss 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.

Disassociation: Ole Miss disassociated boosters 2, 6, 7, 8, 9, 10, 11 and 12. It has represented that the disassociation is in accordance with Bylaw 19.9.7-(i) and includes additional restrictions. For boosters 2, 6, 7, 8, 9, 10, the period of disassociation is indefinite and includes exclusion from institutional facilities and home athletics events. Boosters 11 and 12 cooperated at least in part with the institution, which therefore disassociated them for three years. During their three-year disassociation periods, Ole Miss also excluded them from institutional facilities and home athletics events. (Self-imposed.)2

Additionally, Ole Miss shall disassociate booster 5 for a period of not less than three years. Pursuant to Bylaw 19.9.7-(i), the disassociation shall include:

1. Refraining from accepting any assistance from booster 5 that would aid in the recruitment of prospective student-athletes or the support of enrolled student-athletes;
2. Refusing financial assistance or contributions to Ole Miss’s athletics program from booster 5 or his business interests;
3. Ensuring that no athletics benefit or privilege is provided to booster 5, either directly or indirectly, that is not available to the public at large; and
4. Implementing other actions that Ole Miss determines to be within its authority to eliminate the involvement of booster 5 in the institution’s athletics program.

Committee’s Resolution of the Issues Raised on Appeal

The Committee may overturn on appeal factual findings and conclusions 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 COI;
2. The facts found by COI do not constitute a violation of the NCAA constitution and bylaws; or
3. There was a procedural error and but for the error, the COI would not have made the finding or conclusion.

“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, Public Infractions Appeals Committee Report (May 1, 1995).

Impermissible Recruiting Inducements (Clothing and Merchandise)

COI found that from January 2013 through 2015, assistant coach No. 4 and the assistant athletics director arranged impermissible recruiting inducements for student-athlete No. 13’s family and acquaintances, student-athlete No. 1 and student-athlete No. 15 by referring them to retail store to receive free clothing and free merchandise.

The Institution argued the provision of free clothing and merchandise to then prospective student-athletes, their families and acquaintances, is clearly contrary to the evidence presented. It presented two arguments:

1. COI erred in giving credit to witness accounts of student-athlete No. 13’s mother’s former boyfriend, student-athlete No. 1 and student-athlete No. 15, because the Institution believed such accounts were biased and inconsistent; and
2. COI ignored objective documentary evidence showing the witness accounts to be untrue.

Additionally, the Institution believed that COI committed procedural error by denying the Institution’s requests to compel an interview with student-athlete No. 15 and to obtain information from NCAA enforcement staff from a simultaneous investigation of another NCAA institution which involved student-athlete No. 1.

COI focused its arguments in three areas. First, that it is the purview of COI that determines the credibility of the evidence and the Institution failed to demonstrate that information that might support a contrary result clearly outweighed the information on which COI based this finding of violation. Second, there was no procedural error because enforcement may withhold information to protect the integrity of an investigation. Finally, COI had no authority to compel enforcement to disclose information related to another institution’s investigation or compel individuals to participate in interviews with another party.

Credibility of Witnesses and Documentary Evidence

COI must base its decision on information that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs. NCAA Bylaw 19.7.8.3. The Committee has been “deferential to the Committee on Infractions in determining the credibility of the 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 Public Decision (February 2, 2017).

Additionally, as noted above, “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 . . . 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.” Ole Miss Infractions Appeals Committee Public Report (May 1, 1995) Page No. 8.

The Committee reviewed the entire record before COI. Inconsistencies could be found in and between various witness accounts in the case record. If the other witness accounts that contradicted the accounts relied on by the COI, were considered credible, it could have led a reasonably prudent person to a different interpretation of the facts. However, the Committee found that the information presented did not clearly outweigh information upon which COI relied.

Therefore, the Committee found that the finding of this violation is not clearly contrary to the information presented.

Procedural Error

NCAA legislation allows the Committee to overturn a finding of violation when procedural error occurred, and it is demonstrated that but for the error, COI would not have made the finding of violation. As noted earlier, the Institution identified as procedural error the failure to compel enforcement staff to provide information and to compel student-athlete No. 1 as well as student-athlete No. 15 and his mother to participate in interviews with the institution.

Compelling Individuals to Participate in Interviews

As related to student-athlete No. 15 and his mother, generally, NCAA legislation does not provide the authority to compel individuals to participate in interviews. For student-athlete No. 1, Ole Miss noted that COI could have included as a condition of him receiving immunity that he had to cooperate with the institution (e.g., participate in an interview conducted by the institution). In this case, the NCAA enforcement staff requested limited immunity for student-athlete No.1 on two occasions related to assisting the NCAA enforcement staff in the investigation of new information provided during his interviews with the enforcement staff. The immunity requests by the NCAA enforcement staff did not include participation in interviews and cooperation with the Institution. The NCAA enforcement staff has the discretion, as guided by NCAA legislation and Internal Operating Procedures of both COI and the NCAA enforcement staff, on how to conduct an investigation.

The Committee concluded that not compelling student-athlete No. 1, student-athlete No. 15 and student-athlete No. 15’s mother to participate in interviews with the Institution was not procedural error.

Compelling Enforcement to Disclose Information

Specifically, the Institution requested information related to student-athlete No. 1 receiving $10,000, on signing day 2015, from an individual connected to a teammate from another NCAA institution. The Institution stated that it became aware of this information when student-athlete No. 1 disclosed this information during his testimony at the COI hearing. The Institution argued that if it had been aware of who provided the $10,000 to student-athlete No. 1 prior to the hearing, it could have put forward additional evidence regarding the falsity of student-athlete No. 1’s allegations and was prevented from fully investigating and presenting its case.

In an August 16, 2017, letter from the Institution to the chief hearing officer, the Institution raised three issues: 1) access to all student-athlete No. 1 related investigative materials including those connected to another institution’s infractions case; 2) preventing the sharing of case materials with student-athlete No. 1; and 3) coaches’ attendance at the hearing.

In an August 18, 2017, letter addressed to the chief hearing officer from the vice president of enforcement, the vice president of enforcement specifically stated:

“…the enforcement staff has shared everything it can and should with all parties. The staff has not withheld or concealed any pertinent information and there are no investigative material in any other file that bears on student-athlete No. 1’s credibility.”

The Institution’s request was denied by COI in an August 25, 2017, letter from the chief hearing officer. In its appeal, as stated above, the Institution argued that the denial of access to all student-athlete No. 1 related investigative materials, including those related to another NCAA institution’s infractions case, was procedural error. The Institution believed that such materials impacted student-athlete No. 1’s claims and credibility.

To demonstrate that a procedural error occurred by failing to share or provide access to information, the institution would have to demonstrate that the information withheld was known by or in the possession of the COI or NCAA enforcement staff as well as that the information was pertinent to the case. After reviewing the case record before it, the Committee did not find information that would support a determination that prior to disclosure by the student-athlete at the hearing, COI or the NCAA enforcement staff were aware or in possession of information showing/revealing the identity of the individual that was reported to have provided money to student-athlete No. 1 on signing day 2015.

Therefore, the Committee concluded there was no procedural error related to finding of this violation and, thus, this violation was affirmed.

Lack of Institutional Control

COI found that from 2010 through 2015, the Institution lacked control of the football recruiting process, football representatives of athletics interests and football student-athletes’ use of loaner vehicles from automobile dealerships.

The Institution made several arguments demonstrating that the finding of lack of institutional control was contrary to the evidence presented and that COI committed procedural error. First, the Institution argued that a lack of institutional control violation requires evidence of a specific institutional failure and that such a failure did not exist in this case. Second, the institution described evidence that it believed demonstrated that the Institution exercised control over its football program and showed that the finding of violation is clearly contrary to the evidence (e.g., institution’s compliance program including education of coaches and representatives of athletics interests, setting expectations and swiftly taking corrective action). Finally, that COI committed procedural error by considering the findings from the October 7, 2016, University of Mississippi Committee on Infractions decision (bifurcated case), involving women’s basketball and women’s track and field programs, when making this finding of violation.

COI argued there were institutional failings in that multiple staff members engaged in activities that were violations, representatives of athletics interests were not tracked effectively and the system for tracking and detecting the use of loaner vehicles by student-athletes was insufficient. While COI acknowledged the violations in the women’s basketball and women’s track and field demonstrated the Institution’s lack of institutional control, it also stated that the violations in the football program alone were sufficient to demonstrate a lack of institutional control.

There is no standard related to a finding of a lack of institutional control which requires specific elements or components to be present to make such a finding. However, there has been some guidance provided as to when a lack of institutional control may have or may have not occurred. There are generally four broad categories in which the actions and systems of the Institution will be reviewed as a part of the lack of institutional control analysis: 1) review of the compliance systems; 2) review of the monitoring systems as well as systems for investigating/reporting violations; 3) review of rules education and training of institution’s staff about compliance; and 4) review of the commitment to compliance as well as the pursuit and reporting of circumstance related to NCAA violations. 1996-97 NCAA Guide to Rules Compliance Principles of Institutional Control. Within each of these broad categories, there is no checklist or certain number of issues in particular categories that is needed for a lack of institutional control violation to occur.

There have been infractions cases where activities that were “hidden” from compliance or done in a covert manner were included in the assessment and contributed to a finding of a lack of institutional control. In the University of Kentucky infractions case, a staff member committed violations “under the radar” of compliance. Yet, COI considered those activities as contributing to a finding of a lack of institutional control. The Committee on Infractions was concerned by the “widespread nature of these undetected violations—in time, in frequency, and in the number of individuals who had some knowledge of improper activities—and yet failed to report them to the proper authorities.”

The assessment of whether there has been a lack of institutional control violation is a very fact-specific analysis. In this case, there were a number of violations in the recruiting process and related to the representatives of athletics interests that occurred over a period of five years:

• Coaching staff directed prospective student-athletes to engage in test fraud. They, also, participated in the provision of impermissible inducements (meals, lodging and merchandise) to prospective student-athletes and their families.
• Football staff members falsified recruiting paperwork or failed to submit the required paperwork.
• The football staff failed to ask pertinent questions of the compliance staff.
• A staff member utilized a secret phone for recruiting purposes
• A total of 12 representatives of athletics interests were involved in violations. These violations included arranging impermissible inducements and providing impermissible extra benefits. In some cases, the representatives of athletics interests acted at the request of or the knowledge of football staff members. [Ole Miss Committee on Infractions Decision (December 1, 2017) Page Nos. 49 through 51]

Again, for a finding of violation to be clearly contrary to the information presented, there must be more than a showing that the information supports a contrary result. The appellant must demonstrate that the information supporting a contrary result clearly outweighs the information relied on in making the finding. In this case, the violations, as described above, connect to issues or insufficiencies related to the category of review involving monitoring systems and systems for investigating/reporting violations.

Additionally, the lack of institutional control finding was also connected to the institution’s failure to detect the improper use of “loaner” vehicles by two student-athletes. COI determined that the Institution failed to properly investigate student-athlete No. 13’s use of the vehicle, which it believes could have limited his violations and possibly avoided later violation by another student-athlete. While the institution may disagree whether this information constitutes a finding of a lack of institutional control, the Committee is unable to find information in the case record that clearly outweighed the information on which COI relied. Therefore, the finding is not clearly contrary to information presented.

Finally, the Institution argued that COI committed procedural error by considering the violations from the bifurcated case related to women’s basketball and women’s track and field. However, in its decision COI stated that the activities related to football were sufficient, on their own, for a finding of a lack of institutional control and that the violations in other sports further demonstrated the lack of institutional control. It is clear from the language of the decision that, in this case, the lack of institutional control finding was based on the violations related to the football program. The COI did not commit procedural error by acknowledging the violations in other sports. The Committee affirmed the finding of a violation.

Review of Penalties

 When reviewing penalties prescribed by COI, the Committee may set aside a penalty on appeal if by prescribing the penalty COI abused its discretion.

As the Committee 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, Public Infractions Appeals Committee Report (June 30, 2009).

Additional Restriction on Unofficial Visits

The Institution self-imposed a prohibition on all unofficial visits for five weeks in the fall of 2016 and seven weeks in the fall of 2017. COI prescribed a penalty related to unofficial visits that limited unofficial visits to one visit per prospective student-athlete per academic year for the full term of the Institution’s three (3) years of probation.

The Institution argued that COI abused its discretion by prescribing core penalties related to unofficial visits which extend beyond 13 weeks maximum, as outlined in Figure 19-1 under Level I – Standard – Recruiting Visit Restrictions, without providing an explanation for the departure as required by Bylaw 19.9.6. Further, it argued that COI failed to consider and weigh the material factors of its self-imposed recruiting restriction penalties.

COI argued that the Institution is incorrect to consider this as a core penalty. It was not a ban on unofficial visits, but a limitation on the number of unofficial visits. Further, the limiting of the number of unofficial visits was an additional penalty prescribed via NCAA Bylaw 19.9.7(l) which would be appropriate given the significant violations resulting from the institution’s failure to control its unofficial visit process in football.

In the Ole Miss Committee on Infractions Decision (December 2017), there are two clearly distinct sections, one for the identification of the core penalties prescribed via NCAA Bylaw 19.9.5 and the other for identification of additional penalties prescribed via NCAA Bylaw 19.9.7. The limitation on unofficial visits in football was included in the section prescribing core penalties on Page No. 55 of the decision. Therefore, the Committee concluded that a plain reading of the decision shows that the additional limitation on the number of unofficial visits to one per prospective student-athlete per academic year was prescribed as a core penalty under NCAA Bylaw 19.9.5 and would be subject to requirements of NCAA Bylaw 19.9.6.

NCAA Bylaw 19.9.6 states that if extenuating circumstances are found, COI may depart from the core penalties in Figure 19-1, provided COI explains, in its decision, the basis for its prescription of core penalties different than those set forth in Figure 19-1.

As stated above, this is a Level I Standard case for the Institution. For cases with this classification, Figure 19-1 outlines penalties related to unofficial visits as seven to 13-week ban on unofficial visits (no scheduled unofficial visits and no complimentary tickets). (emphasis added) As related to the unofficial visits, prescription of penalties other than a ban, for example, a limitation on the number of unofficial visits, would be a departure from the penalty options found in Figure 19-1.

Per Bylaw 19.9.6, COI should have included in its decision an explanation of the basis for prescribing penalties different than those in Figure 19-1. COI failed to include such an explanation in its decision. Without such an explanation, as required by NCAA Bylaw 19.9.6, COI has misapplied the NCAA legislation in prescribing the additional limitation of the number of unofficial visits. COI abused its discretion when prescribing this penalty 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, COI abused its discretion and the penalty limiting the number of unofficial visits during the probation period was vacated.

Postseason Ban Imposed for Additional Year

The Institution self-imposed a one-year postseason ban for its football program and COI prescribed an additional one-year postseason ban for the program.

The Institution argued that COI abused its discretion by prescribing an additional year of a postseason ban, in that it failed to provide an explicit reason for the imposition of this penalty; it assigned significant weight to an impermissible aggravating factor, history of Level I, Level II or other major violations by the institution; and the ban is inconsistent with and excessive given precedent.

COI argued that it did not abuse its discretion by prescribing an additional year of a postseason ban in that this case included multiple level I violations over five years involving multiple staff and representatives of athletics interests. Further, a second year of a postseason ban falls squarely with the penalty guidelines and would not require an explicit explanation.

In this case, COI classified this case as Level I standard for the Institution. Therefore, the penalty range identified in Figure 19-1 for this case classification is one to two years postseason ban. The Committee is “hesitant to delineate any penalty within the appropriate matrix options as an abuse of discretion absent a clearly arbitrary imposition…” Southern Methodist University Infractions Appeals Committee decision (April 21, 2016) Page No. 4. Further, since COI did not depart from the penalty options in Figure 19-1, NCAA Bylaw 19.9.6 was not triggered and COI was not required to identify extenuating circumstances for the prescription of the penalty or an explanation for a departure from Figure 19-1. We find nothing in the case record that supports that the prescription by COI of an additional year of postseason ban was an abuse of discretion. Therefore, this penalty was affirmed.

Conclusion

 The Committee concluded COI abused its discretion and the penalty limiting the number of unofficial visits during the probation period was vacated.  Otherwise, the Committee upheld the decision of COI.

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