The Committee on Infractions (“COI”) found violations of NCAA legislation in the University of Missouri (“Missouri” or “Institution”) football, baseball, and softball programs. On the basis of those findings, COI determined this was a Level I-Standard case and imposed penalties accordingly.

Missouri appealed some of the penalties prescribed by the COI. The appealed penalties are as follows:

V .2.  Competition penalty: During the 2018-19 academic year, the baseball and softball programs shall end their seasons with playing their last regularly- scheduled in-season contest and shall not be eligible for participation in any postseason championships, including conference tournaments, NCAA championships, foreign tours or any exceptions to the limitation on the number(s) of contests that are provided in Bylaw 17. During the 2019-20 academic year, the football program shall end its season with the playing of its last regularly scheduled in-season contest and shall not be eligible to participate in any postseason championships, including conference tournaments, bowl games, foreign tours or any exceptions to the limitations on the number of contests that are provided in Bylaw 17.

In accordance with Bylaw 14.7.2-(c), the COI recommends that the Committee for Legislative Relief waive the one-year residency requirement for student-athletes whose institution was placed on probation which included a postseason ban penalty.

V.4.  Scholarship reductions: During the 2019-20 academic year, Missouri shall reduce by five percent the amount of grants-in-aid awarded in the football, baseball and softball programs. The reductions shall be based on the average amount of aid awarded in each sport program over the past four academic years.

V.5.  Recruiting restrictions: During the 2019-20 academic year, Missouri shall restrict recruiting as follows:

     a. A seven week ban on unofficial visits, including no scheduled unofficial visits and no complimentary tickets, in the football, baseball and softball programs.

     b. A 12.5 percent reduction in official visits in the football, baseball and softball programs. This amounts to reductions of seven visits in football and four visits in baseball. For the softball program, this reduction shall be based on the average number of official paid visits provided during the previous four academic years.

     c. A seven week ban on recruiting communications in the football, baseball and softball programs.

     d. A seven week ban on all off-campus recruiting contacts and evaluations in the football, baseball and softball programs.

    e. A 12.5 percent reduction in recruiting-person or evaluation days for the football, baseball and softball programs. This amounts to six fall 2019 and 21 spring 2020 evaluation days in football.

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:

     a. A factual finding is clearly contrary to the information presented to the COI;

     b. The facts found by COI do not constitute a violation of the NCAA constitution and bylaws; or

     c. 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).

Missouri argued that COI abused its discretion by classifying this case as a Level I-Standard infractions case, failing to consider and weigh the severity of violations and prescribe appropriate and fair punishment.

Missouri made three arguments regarding the determination of the level for this infractions case. First, Missouri challenged COI’s determination and weighing of aggravating and mitigating factors. Second, Missouri argued that COI mischaracterized and erroneously relied on a statement in the rejected summary disposition report. Third, Missouri argued that COI did not adhere to applicable bylaws and standards.

Additionally, Missouri argued that two additional mitigating factors should have been applied to its infractions case. One factor is the prompt self-detection and self-disclosure of the violation(s), and the other factor is the implementation of a system of compliance methods designed to ensure rules compliance and satisfaction of institutional/coaches’ control standards. To support these arguments, Missouri focuses on what it describes as contradiction and inconsistency with case precedent and its perception that COI “creates a new operational duty” for institutions to spot-check metadata.

In response to Missouri’s arguments, COI stated that it acknowledged throughout the case that Missouri preferred that its case be classified as Level I-Mitigated; however, COI disagreed with this classification for this case. Further, COI argued that it did not err in determining the mitigating factors or in weighing the mitigating and aggravating factors in this case. COI concluded that the facts do not support prompt detection as required by Bylaw 19.9.4-(a). COI also stated that it applies Bylaw 19.9.4-(e) as a mitigating factor when an institution’s current compliance system led to the detection of the violations. Finally, COI stated it is within its discretion to determine whether the mitigating and aggravating factors apply and assign weight to those factors.

Pursuant to Bylaw 19.9.2, COI weighed factors and determined whether parties are subject to standard, aggravated or mitigated penalties. In the COI’s infractions decision, it provided a rationale to explain why COI did not apply these mitigating factors in this case. For example, COI stated that “the record…did not demonstrate that Missouri had systems in place designed for prompt self-detection associated with this mitigating factor [Bylaw 19.9.4-(a)].” Additionally, in previous cases, COI “declined to apply this mitigating factor when an institution becomes aware of violations after a significant passage of time.” For the mitigating factor in Bylaw 19.9.4-(e), COI explained that “the COI has routinely concluded that this mitigating factor applies only when an institution’s compliance system is in place at the time the violation occurred and led to the detection of the violations.”

The COI decision, and appeal submissions by Missouri and COI, include citations and comparisons to a number of previous infractions cases. There are previous infractions cases that support each party’s arguments – some support applying the mitigating factors in this case, while others support not applying the two mitigating factors. This mix of precedent made the Committee’s decision in this case a difficult one. The Committee carefully reviewed the case precedent identified and the arguments put forward by the parties of the appeal.

The NCAA legislation gives COI 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. In this case, COI’s decision provided an analysis and rationale for its decision to not apply mitigating factors in Bylaws 19.9.4-(a) and 19.9.4-(e). In reviewing COI’s analysis and rationale, the Committee may not substitute its judgment for that of COI. Disagreement with the COI’s outcome is not enough. Missouri was unable to demonstrate that the COI’s analysis and/or rationale failed to consider and weigh mitigating factors; was based on a clear error in judgment; was based on irrelevant or improper factors; or was based on an incorrect standard or misapprehension of standards. Therefore, the Committee did not find that COI improperly determined and weighed mitigating factors.

Missouri also pointed to the COI’s use of statements from the rejected summary disposition report as a basis to challenge the COI’s classification of the case as Level I- Standard. The Division I Committee on Infractions Internal Operating Procedure 4-10-3 states that any party may rely on statements and information in a rejected summary disposition report and that a rejected summary disposition report becomes part of the record before COI. Further, the parties had the opportunity to change positions taken in the summary disposition report, including an explanation of how the position had changed. In an attachment to the rejected summary disposition report, Missouri stated:

     “…in a worst-case analysis, this is a low-end (tending toward mitigated) standard case and, in a best-case analysis, this is an upper-end mitigated case.”

In COI’s decision, COI recognized that “[t]hroughout the processing of the case, Missouri continued to assert that it believed the case to fall on the Level I-Mitigated side.” However, COI determined this case should be classified as a Level I-Standard. Finally, COI stated that it “agrees with Missouri’s original analysis and, in prescribing penalties, the panel notes significant overlap in the ranges associated with low-end Level I-Standard penalties and upper-end Level I-Mitigated penalties under the penalty guidelines.” Missouri argued that this statement demonstrates that COI misconstrued Missouri’s statement attached to the summary disposition report as a concession by Missouri that the case was a Level I-Standard case.

When COI’s statements are read in their totality, the statements in the infractions decision are intended to reflect an acknowledgement that the penalty options of a low-end Level I-Standard case and high-end Level I-Mitigated case overlap. It should be noted that COI did have the discretion and authority to disagree with the parties’ position on level and classification and thus can make its own determination of such. The Committee found that COI mischaracterized or erroneously relied on a statement in the rejected summary disposition report.

Missouri argued that the case was incorrectly classified as a Level I-Standard case as COI did not consider two additional mitigating factors that should have been applied. After a review of the relevant cases presented by Missouri and COI, the Committee agreed that the factors could have been applied, which might have led to the case’s classification as a Level I-Mitigated case. However, as noted above, disagreement with COI’s outcome is not enough. Missouri was unable to demonstrate that the panel’s failure to apply the two additional mitigating factors was based on a clear error in judgment such that it was arbitrary, capricious or irrational. In addition, as noted in the previous paragraph the penalty options for Level I-Standard and Level I-Mitigated cases overlap, and the institution’s penalties could have been the same under either Level classification.  Based on the reasons above, the Committee found that COI did not abuse its discretion when classifying this case as a Level I-Standard case.

The Committee noted concern about the differing approaches used for the application of mitigating and aggravating factors based on whether the parties (institution and enforcement) are in agreement. In the Committee on Infractions Response, COI stated that “although the COI has the authority to make final decisions regarding applicable [mitigating and/or aggravating] factors, it generally gives deference to the parties’ agreements without further comment.”  The “deference” provided in circumstances where the parties agree on the appropriate mitigating factors has resulted in case precedent in which mitigating factors were applied differently than in cases where the parties were not in agreement. Further, per COI’s operating procedures and in its response to the institution’s appeal, COI’s notes that summary disposition reports “offer limited precedential value.” And yet, COI continued to cite summary disposition reports in its analysis and rationale in the infractions process. The instructive or precedential value becomes difficult to discern and creates the potential for inconsistent application and assessment of mitigating and aggravating factors in infractions cases.

Further, the role, impact and use of precedent in the infractions process, as well as what guidance infractions decisions provide for the membership, may be perceived as inconsistent and become more confusing given the varying processes and approaches for resolving infraction issues. The Committee stated it is critical for the NCAA membership to discuss and evaluate the application, assessment and precedential value of infractions cases not only when parties agree on mitigating and aggravating factors, but also the appropriate precedential value and approach for cases in the entirety of the infractions processes. Doing so would better equip the Committee and COI in discharging its duties, and in turn improve the infractions process and yield better guidance for the membership as a whole.

Missouri made three arguments to support its position that COI abused its discretion when prescribing penalties in this case. First, Missouri argued that the penalties prescribed by COI exceeded those in infractions cases with conduct most similar to the conduct in this case. Second, Missouri argued that the penalties in this case far exceed penalties prescribed in academic misconduct cases with significantly more severe violations. Third, Missouri asserted that the penalties in this case are comparable to the penalties imposed in infractions cases that involved the most egregious and extensive misconduct and violations. COI argued that because each case is unique, variances among past cases do not meet the high bar of the abuse of discretion. COI stated that it looked primarily to Level I-Standard cases involving academic violations and found that this case involves more student-athletes and more sport programs than prior cases.

The Committee noted that COI has significant discretion in its ability to fashion appropriate penalties for infractions in any case. Additionally, when the case is classified without an abuse of discretion by COI, “this committee is hesitant to delineate any penalty within the appropriate matrix options as an abuse of discretion absent a clearly arbitrary imposition in light of consistent prior application to the contrary.” After reviewing the record in this case, the Committee did not find information that supported a determination that COI abused its discretion when prescribing the penalties related to postseason competition ban, scholarship reductions and recruiting restrictions.

The Committee affirmed the penalties issues by COI.

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