The NCAA Committee on Infractions (“Committee” or “COI” or “panel”) recently issued its findings and found that Auburn University (“Auburn” or “AU” or “institution”) committed violations of NCAA legislation. The conduct at issue in this case was related to a broader scheme that involved money and influence at the intersection of collegiate and professional basketball. The scheme resulted in the arrest and prosecution of multiple individuals—including college basketball coaches—on conspiracy and bribery charges, and it led to significant reforms to strengthen the NCAA Collegiate Model. This case centered on the unethical conduct of the former associate head men’s basketball coach at Auburn University, whose involvement in the scheme ended in his arrest and subsequent guilty plea. This case also involved a head coach responsibility violation because the head coach was unable to demonstrate that he promoted an atmosphere of compliance and monitored the associate head coach’s actions. Additional violations occurred when the associate head coach and an assistant coach failed to cooperate during the NCAA investigation. Finally, this case involved allegations that the assistant coach was involved in paying a walk-on student-athlete’s tuition, but the panel determined that the violation was not demonstrated.
The panel classified this case as Level I-Aggravated for Auburn, Level I-Aggravated for the associate head coach, Level I-Mitigated for the assistant coach and Level I-Mitigated for the head coach.
The Committee found Auburn committed the following violations of NCAA legislation:
Violations of NCAA Division I Manual Bylaws 10.1-(c) (2014-15 and 2015-16); 13.2.1, 18.104.22.168, 22.214.171.124-(b) and 126.96.36.199-(e) (2014-15 through 2016-17); 10.01.1 and 10.1 (2014-15 through 2017-18); 10.1-(b), 10.1-(d), 11.1.3, 12.11.1, 16.8.1 and 188.8.131.52 (2016-17 and 2017-18)
During his employment at Auburn, the associate head coach accepted $91,500.00 in bribes from a financial advisor in exchange for arranging meetings with two men’s basketball student-athletes and their parents. He also provided two student-athletes and their families with impermissible inducements and benefits. Auburn and the NCAA enforcement staff agreed to the facts. Generally, Auburn and the NCAA enforcement staff agreed that those facts established NCAA violations. Auburn, however, raised limited challenges related to individual bylaw citations, whether certain family relationships created exceptions to well-established benefit rules, and whether some of the agreed-upon violations were Level II rather than Level I. The associate head coach did not respond to the allegations. Pursuant to Bylaw 184.108.40.206.4, a hearing panel may view a party’s failure to respond to an allegation as an admission that the violation occurred. The panel concluded that the violations occurred, and they are Level I for both the associate head coach and the institution.
From October 2016 up until his arrest in September 2017, the associate head coach participated in a bribery scheme with the financial advisor and the financial advisor’s representative. Their goal was to steer student-athletes 1 and 2 to retain the services of the financial advisor and his representative once the student-athletes entered the NBA. Throughout the scheme, the financial advisor provided the associate head coach with payments totaling $91,500.00 and, in exchange, the associate head coach arranged three separate meetings between the financial advisor, the student-athletes and their parents. The associate head coach’s conduct constituted Level I violations of Bylaws 10 and 11.
Bylaw 10 governs ethical conduct. Bylaw 10.01.1 requires all staff members to act with honesty and sportsmanship. Bylaw 10.1 defines unethical conduct and includes a non-exhaustive list of example behaviors identified as unethical conduct. This list expressly includes an institutional staff member’s receipt of benefits for facilitating or arranging a meeting between a financial advisor, or representative of a financial advisor, and a student-athlete. See Bylaw 10.1-(d). Additionally, Bylaw 11 governs the conduct and employment of athletics personnel. Specifically, Bylaw 11.1.3 prohibits athletics staff members from representing, either directly or indirectly, any individual in the marketing of their athletics ability or reputation to an agent, and from accepting compensation for such services.
Auburn agreed that the associate head coach violated Bylaw 10 when he participated in the bribery scheme. Specifically, the associate head coach accepted $91,500.00 in the form of cash and wire transfers from the financial advisor in exchange for arranging three meetings between the financial advisor and two student-athletes, as well as their parents. In doing so, the associate head coach used his position as a coach and mentor to steer the two student-athletes—both of whom had NBA potential—towards the services of the financial advisor and the financial advisor’s representative. These facts are not disputed by Auburn, and the associate head coach pled guilty in federal court to participating in the bribery scheme. His guilty plea is accepted as true and established NCAA violations. As a result of his acceptance of bribes and arrangement of meetings with the financial advisor, the associate head coach violated Bylaws 10.01.1, 10.1 and 10.1-(d).
Despite agreeing with the facts surrounding the bribery scheme, Auburn disputed the application of Bylaw 11.1.3 to the associate head coach’s conduct, citing the absence of an express or implied representation agreement between the associate head coach and the student-athletes or their parents. Auburn emphasized that, in their interviews with the NCAA enforcement staff, the student-athletes and their parents denied entering into a representation agreement with the associate head coach. Express representation, however, is not required for Bylaw 11.1.3 to apply.
COI has applied Bylaw 11.1.3 in recent cases involving similar underlying misconduct in Division I men’s basketball programs. See Texas Christian University (TCU) (2021) (concluding that an assistant coach represented student-athletes in marketing their athletics ability and reputation in violation of Bylaw 11.1.3 when he touted the student-athletes’ professional potential to management company representatives); University of Southern California (USC) (2021) (concluding a Bylaw 11.1.3 violation occurred when the associate head men’s basketball coach represented the talents and skills of current and future student-athletes to a management company); University of South Carolina (2021) (accepting the parties’ agreement in the SDR that an assistant coach violated Bylaw 11.1.3 when he accepted money for the purpose of arranging meetings between a student-athlete and an agent, notwithstanding that no meetings ever occurred); and Oklahoma State University (OSU) (2020) (concluding, based on an interpretation from AMA staff, that a violation of Bylaw 11.1.3 occurred when an associate head coach participated in a bribery scheme and arranged meetings between two advisors and student-athletes); but see Creighton University (2021) (omitting a Bylaw 11.1.3 allegation because the assistant coach never discussed specific players when he met with an agent associate and representatives from his business management company).
More importantly, COI has directly addressed the issue of representation agreements under Bylaw 11.1.3 and concluded that neither a representation agreement, nor the student-athletes’ awareness of the representation, is necessary for a violation to occur. See TCU. Consistent with the COI’s conclusion in TCU, student-athletes 1 and 2 and their parents did not need to enter into a representation agreement with the associate head coach for the panel to conclude that a violation occurred. Put simply, an express or implied representation agreement is not necessary for Bylaw 11.1.3 to apply. The associate head coach’s conversations with the financial advisor pertaining to the student-athletes, and his arrangement of meetings in exchange for $91,500 in bribe money, is sufficient to amount to representation under Bylaw 11.1.3. Thus, the panel concluded that the associate head coach violated Bylaw 11.1.3.
Pursuant to Bylaw 19.1.1, the unethical conduct and representation violations are Level I because the conduct seriously undermined or threatened the integrity of the Collegiate Model. Relevantly, the COI has also concluded that similar conduct establishes Level I violations for both involved individuals and their institutions. See TCU; Creighton; USC; South Carolina; University of Alabama (2020); and OSU. In these cases, COI specifically concluded that institutional staff members who accepted money as part of a scheme to steer men’s basketball student-athletes to retain the services of a financial advisor, agent associate, business management company or other professional services organizations established Level I violations for the actor and the institution. Accordingly, and consistent with Bylaw 19.1.1, the violation is Level I for both the associate head coach and Auburn.
From 2014 through September 2017, the associate head coach provided impermissible recruiting inducements and benefits to two student-athletes and members of their families. The benefits came in the form of cash payments and cost-free lodging. As a result, student-athletes 1 and 2 received actual and necessary expenses and competed in 23 and 22 contests, respectively, while ineligible. The associate head coach’s conduct resulted in violations of Bylaws 10, 12, 13 and 16.
As noted above, Bylaw 10.1 includes a list of behaviors specifically identified as unethical conduct. Among these is Bylaw 10.1-(b), which describes unethical conduct as knowing involvement in offering or providing a prospective or an enrolled student-athlete with an improper inducement or extra benefit. Improper inducements are outlined in Bylaw 13, which governs recruiting. When taken together, Bylaws 13.2.1 and 220.127.116.11-(b) and (e) prohibit institutional staff members from providing inducements—specifically cash, clothing, equipment and like items—to prospects. Similarly, Bylaw 16, which governs awards, benefits and expenses for student-athletes, prohibits student-athletes from receiving any extra benefit not expressly authorized by NCAA legislation. See Bylaw 16.11.2. Bylaw 16 also requires that only eligible student-athletes receive actual and necessary expenses under Bylaw 16.8.1. Relatedly, eligibility is governed by Bylaw 12. Under Bylaw 12.11.1, institutions have an affirmative obligation to withhold ineligible student-athletes from competition.
Beginning in 2014, the associate head coach provided impermissible inducements and benefits to student-athlete 1 and his mother. The recruiting inducements came in the form of the following: (1) a $500.00 cash payment funding student-athlete 1’s transportation to an elite basketball camp; (2) cash payments totaling $2,300.00 provided directly to student-athlete 1’s mother on eight to 10 occasions; and (3) a $750.00 suit for student-athlete 1. Moreover, after student-athlete 1 enrolled at Auburn, the associate head coach provided impermissible benefits in the form of $1,500.00 cash—$800.00 to student-athlete 1 and $700.00 to the student-athlete’s mother.
Later, beginning in December 2016, the associate head coach began providing impermissible benefits to student-athlete 2 and his parents. These included the following: (1) multiple cash payments to student-athlete 2 and his parents totaling $1,250.00 and $4,300.00, respectively; (2) arranging for the financial advisor to provide student-athlete 2’s mother and stepfather with $1,000.00 and; (3) paying for the parents’ hotel room during the SEC tournament. These impermissible inducements and benefits resulted in both student-athletes competing and receiving actual and necessary expenses while ineligible.
Auburn did not dispute that the associate head coach provided impermissible benefits to student-athlete 2 and his parents. However, Auburn argued that the benefits provided to student-athlete 1 and student-athlete 1’s mother were permissible due to their familial relationship with the associate head coach. In support of its position, Auburn argued that the AMA staff’s 2017 interpretation and the corresponding decision from the interpretations committee—which indicated that the associate head coach was not considered a family member and appeared to be more like a friend to student-athlete 1 and his mother—are not binding because they did not take into account new information obtained through the 2020 importation of the associate head coach’s federal case materials. Based on this additional information, Auburn asserted that the associate head coach was acting as the practical equivalent of a family member to student-athlete 1 and his mother and therefore did not violate Bylaws 13 and 16.
The panel was not persuaded. The panel found the AMA interpretation and corresponding Interpretations Committee’s confirmation persuasive and binding. The extent to which the panel is guided by AMA case-specific interpretations is addressed in the COI’s Internal Operating Procedures (IOPs). Where the operative facts remain the same, the COI is bound by interpretations issued pursuant to COI IOP 5-9-4.
Contrary to Auburn’s position, the imported materials from the 2020 federal investigation do not clarify or confirm the associate head coach’s relationship with student-athlete 1 so as to render the 2017 interpretation inapplicable. In fact, Auburn never articulated what specific facts it was relying upon that, in its view, rendered the interpretation invalid. In the panel’s review of the record, nothing from the federal trial materially altered the facts presented to AMA and the Interpretations Committee. Thus, the operative facts from that interpretation remain the same and the panel is bound by the interpretation. As a result, the associate head coach violated Bylaws 13 and 16. These violations resulted in student-athlete 1’s ineligibility and subsequent competition violating Auburn’s affirmative obligation to withhold him, and student-athlete 2, under Bylaw 12. Further, because the associate head coach knowingly provided the inducements and benefits, he also violated unethical conduct legislation under Bylaws 10.1 and 10.1-(b).
Regarding level, Auburn asserted alternative arguments that the violations associated with student-athlete 1 and 2 should be classified as Level II based on past cases involving impermissible inducements and benefits, the overall value of the benefits and the nature of the conduct in this case. More specifically, Auburn asserted that such violations are “overwhelmingly” designated as Level II absent significant monetary value, academic misconduct, extensive misbehavior or otherwise repugnant conduct. Auburn’s argument mischaracterizes the COI’s past cases.
COI has consistently stated that monetary value is but one factor in assessing level. See University of California, Santa Barbara (2020) and University of Tennessee at Chattanooga (UTC) (2018). Likewise, COI has previously concluded that impermissible inducements and benefits that result in unethical conduct violations are Level I. See University of Akron (2021) (concluding that Level I violations occurred when an associate AD provided $5,900 in cash loans to eight football student-athletes, thereby violating the principles of ethical conduct); University of Mississippi (2017) (concluding that Level I violations occurred when coaching staff members knowingly provided prospects and their families with impermissible inducements and benefits); and University of Northern Colorado (2017) (concluding that Level I violations occurred where multiple coaches engaged in unethical conduct when they provided prospects with impermissible inducements in the form of payment for online courses). Here, the violations establish related unethical conduct and therefore appropriately fall within the broader Level I conduct at the center of this case.
Further, the bylaws do not require that conduct be repugnant—a subjective standard—to establish a Level I violation. The standard for a Level I violation, as adopted by the NCAA membership, is a “severe breach of conduct that provides a substantial advantage or extensive benefit.” See Bylaw 19.1.1. The conduct in this case fits the membership’s standard. Moreover, even if the COI were to adopt Auburn’s preferred standard, the conduct is still Level I. Providing cash payments, benefits or arranging for financial advisors to provide cash payments is directly in opposition of the fundamental principles upon which intercollegiate athletics is based. See Constitution 2.4 and 2.9 (the Principles of Sportsmanship and Ethical Conduct and Amateurism, respectively). Conduct that unquestionably undermines the NCAA’s foundational principles is repugnant to the NCAA Collegiate Model. In accordance with Bylaws 19.1.1, 19.1.1-(d) and 19.1.1-(f), the panel concluded this conduct is part of the broader Level I conduct at issue in this case.
Violations of NCAA Division I Manual Bylaw 18.104.22.168 (2014-15 through 2016-17)
The head coach failed to promote an atmosphere of compliance because he established a culture in his program whereby the associate head coach freely and intentionally committed unethical conduct and where neither his student-athletes or staff members brought forward concerns about potential violations. Likewise, the head coach failed to adequately monitor the associate head coach when he did not identify the problematic relationship between the associate head coach, student-athlete 1 and student-athlete 1’s mother. Auburn and the head coach disputed the violation. The panel concluded that a Level I violation occurred.
During the course of the associate head coach’s employment at Auburn, the head coach failed to meet his legislated responsibility to promote an atmosphere of compliance and monitor his staff. Although the head coach represented that compliance was a top priority for him at Auburn, his actions and inaction undermine that representation. Although a close call, the panel concluded that the head coach was unable to rebut his legislated presumption of responsibility for the violations committed by his associate head coach. The head coach violated Bylaw 11.
Bylaw 22.214.171.124 establishes two affirmative duties for head coaches: (1) to promote an atmosphere of rules compliance and (2) to monitor individuals in their program who report to them. The bylaw presumes that head coaches are responsible for violations in their programs. Head coaches may rebut this presumption by demonstrating that they promoted an atmosphere of compliance and monitored their staff.
Throughout this case, the head coach provided substantial explanation of the compliance systems that he had in place for the men’s basketball staff members. Motivated by his involvement in a prior infractions case, the head coach emphasized his renewed dedication to compliance upon arriving at Auburn. According to Auburn’s administrators, there was a shared understanding when the head coach was hired that compliance needed to be his top priority. The panel agreed that, on paper, the head coach seemed to have a robust compliance program. However, as demonstrated by the actions of the associate head coach and other members of the men’s basketball coaching staff, that compliance program was far less effective in practice.
The panel’s primary concerns fall into two areas: (1) the tone of compliance originally set by the head coach upon his hire and (2) his failure to ask questions regarding the associate head coach’s relationship with student-athlete 1.
With respect to the first area, the panel was concerned with the tone of compliance set from the head coach’s first few weeks at Auburn. By his own admission, the head coach had been granted a rare second chance and he could not make any mistakes from a compliance standpoint. Thus, it was important to the head coach and Auburn that the head coach surround himself with compliance-driven individuals. To the head coach’s and Auburn’s credit, they immediately embedded a veteran compliance officer in the basketball offices. But then the head coach began filling out his staff. Two of his hires were the associate head coach, who had zero collegiate experience and to whom NCAA rules were unfamiliar, and an assistant coach, who previously received a show-cause order while working for the head coach at a prior institution.
To be clear, COI does not involve itself in hiring decisions. However, the head coach’s immediate decision to fill his staff with an individual who had no NCAA compliance experience and an individual who recently committed a major NCAA violation undermines the head coach’s statements that compliance was his top priority. Despite his words and representations, his actions demonstrated that compliance was not a priority, and that tone appears to have continued in the months that followed.
Within a few months of being hired, the associate head coach began committing known violations when he informed student-athlete 1’s mother that Auburn had interest in recruiting her son and shortly thereafter provided her with cash payments. Those payments and other benefits continued undisturbed for nearly three years. Even if the associate head coach believed such payments were permissible, he expanded his provision of cash payments and benefits to student-athlete 2 and his family in December 2016. The impermissible payments and benefits occurred uninterrupted for approximately 10 months. The impermissible payments and benefits to both student-athletes and their families stopped only because the associate head coach was arrested in September 2017.
Although the head coach and Auburn claimed that the associate head coach often asked compliance-related questions, he felt comfortable within the head coach’s program with providing impermissible cash and other benefits to student-athletes and their families. Moreover, he felt comfortable providing student-athlete 2 with cash payments from his desk in the basketball office.
In addition to the associate head coach’s comfort with committing known violations, it does not appear that individuals associated with the program actively reported compliance-related concerns to the head coach. Specifically, neither student-athletes 1, 2 or their parents ever contacted the head coach about their receipt of cash or impermissible benefits. Likewise, noncoaching staff members observed questionable behavior involving the associate head coach, the financial advisor, the financial advisor’s representative, and/or student-athletes and their families and never brought them to the attention of the head coach. Indeed, even the head coach was not concerned by the presence of the financial advisor’s representative in the basketball offices.
The head coach asserted that he implemented proper safeguards. Stated simply, these safeguards failed. It started when the head coach did not prioritize compliance when selecting his staff and it continued when the associate head coach freely committed violations—with some of those violations occurring in the men’s basketball suite. The associate head coach’s ability and willingness to engage in violations in close proximity to the head coach and other staff members is troubling and contradicts the culture of compliance that the head coach purported to have built.
Second, the head coach failed to adequately monitor the associate head coach and his relationship with student-athlete 1 and student-athlete 1’s mother. Specifically, the head coach did not ask questions about the associate head coach’s relationship with student-athlete 1 and his parents. At the hearing, the head coach confirmed that he knew the associate head coach was from the same small town as student-athlete 1 and that he had a relationship with student-athlete 1’s parents.
However, the head coach stated that he did not know of any potential familial relationship until a funeral for the associate AD’s family member. Importantly, after learning of their potential familial relationship, the head coach did not ask the associate head coach any follow-up questions about the relationship or any benefits he provided to student-athlete 1 and his parents. In short, the head coach failed to ask reasonable and pertinent questions once he became aware of a potentially problematic situation.
COI regularly concludes that head coaches fail to meet their responsibilities under Bylaw 126.96.36.199 when violations occur in their program and they cannot clearly demonstrate they promoted an atmosphere of compliance and monitored their staffs. See University of Oregon (2018) (concluding that the head men’s basketball coach failed to monitor the director of operations who impermissibly involved himself in student-athletes’ workouts); University of Louisville (2017) (concluding that the head men’s basketball coach violated head coach responsibility legislation when he failed to monitor his subordinates who engaged in multiple Level I violations); and Syracuse University (2015) (concluding that the head men’s basketball coach failed to rebut his presumed responsibility for multiple violations that occurred within his program). The COI has also noted the importance of head coaches actively looking for red flags and questioning their staff. See DePaul University (2019) (concluding that the head men’s basketball coach did not promote compliance or monitor his staff where there was a “culture of silence” and the head coach did not confer with staff members, actively look for red flags or question the DOBO’s actions) and Southern Methodist University (SMU) (2015) (concluding that the head men’s basketball coach violated head coach responsibility legislation, in part, when he did not ask questions about his administrative assistant’s relationship with a student-athlete despite multiple red flags). Like the coaches in these cases, the head coach failed to rebut his presumed responsibility for the associate head coach’s violations. To be clear, this was a difficult decision and a close call. But ultimately, the head coach is responsible. That was the membership’s rationale behind the adoption of Bylaw 188.8.131.52, and the head coach failed to meet the high standard to rebut his presumed responsibility in this case.
Head coach responsibility violations are not strict liability. They are rooted in the presumption that head coaches are responsible for everything that happens in their programs. Head coaches can and have rebutted their presumed responsibility. In limited circumstances where head coaches have specifically identified potential red flags and took action to prevent violations from occurring and/or the violations occurred in unique once-in-a-career circumstances, the COI has concluded that head coaches effectively rebutted their presumed responsibility. See University of the Pacific (2017) (concluding that the head baseball coach rebutted the presumption when the underlying benefits violation resulted from a legitimate misunderstanding between the coach and an associate athletics director and the coach followed proper procedures by seeking the associate athletics director’s input and approval) and Wichita State University (2015) (concluding that the head baseball coach rebutted his presumption of responsibility when he failed one time to ask follow-up questions regarding his administrative assistant’s involvement in a benefits violation, but he had properly monitored the assistant and set a tone of compliance for decades). The facts presented here are distinguishable.
Notably, the head coach’s decision to hire the associate head coach despite concerns about his inexperience and then the head coach’s subsequent failure to personally monitor him by asking follow-up questions about the associate head coach’s relationship with student-athlete 1 contributed to violations going undetected in the Auburn men’s basketball program for three years. Moreover, some of these violations took place within earshot of the head coach’s office.
Furthermore, this was not a one-time error in judgement. The head coach acknowledged and embraced his infractions history. The head coach admitted that following his involvement in a major infractions case, he knew that if he ever received a second chance, it would have to be different. The head coach needed to go above and beyond to ensure that no violations could occur in his program—let alone violations involving an associate head coach intentionally providing student-athletes and their parents with cash and benefits. The head coach failed in this regard. His staff member freely engaged in fundamental NCAA violations and the head coach did not have the proper systems in place to identify and uncover the problematic behavior when red flags around the associate head coach’s relationship presented themselves.
Head coach responsibility violations derive from the underlying violations. In this case, the underlying violations were Level I conduct committed by the associate head coach. Accordingly, and pursuant to Bylaw 19.1.1-(e), this violation is Level I for the head coach and Auburn.
Violations of NCAA Division I Manual Bylaws 10.1, 10.1-(a) and 19.2.3 (2018-19 and 2019-20)
Following his separation from Auburn, the associate head coach failed to meet legislated standards of ethical conduct and his responsibility to cooperate when he refused to participate in an interview with the enforcement staff and provide information relevant to the investigation. The associate head coach did not respond to the allegation. The panel concluded that the associate head coach committed a Level I violation.
Beginning in May 2019, the associate head coach failed to meet his obligation to cooperate with the investigation. Specifically, on May 28, 2019, the associate head coach, through his personal legal counsel, declined to participate in an interview with the enforcement staff regarding his knowledge of or involvement in violations of NCAA legislation. His conduct violated Bylaws 10 and 19.
Bylaw 10.1-(a) obligates current and former institutional staff members to make complete disclosures of information concerning possible violations when requested by the enforcement staff. Failure to do so may constitute unethical conduct under Bylaw 10.1. Along these lines, and to further the mission of the infractions process, Bylaw 19.2.3 requires current and former staff members to assist and fully cooperate with the enforcement staff.
The associate head coach failed to meet his obligation to further the objectives of the membership’s infractions program. Beginning in May 2019, the associate head coach failed to cooperate with the investigation and processing of this case. The enforcement staff contacted him on two separate occasions to request an interview. Following the second request, the associate head coach’s attorney informed the enforcement staff that his client would not interview. Ultimately, the associate head coach failed to interview, provide information, respond to the allegations and participate in the infractions hearing.
Any lack of cooperation threatens the integrity of the infractions process, and this is particularly true when the individual who fails to cooperate is the central actor in a case. See Louisville (concluding that a former director of basketball operations, who arranged stripteases and sex acts for recruits, violated Bylaws 10 and 19 when he refused to participate in an interview, respond to the NOA and attend the infractions hearing). When the associate head coach refused to participate in the investigation and respond to the allegations, he violated the cooperative principle and acted unethically in contravention of Bylaws 10.1-(a) and 19.2.3.
COI has regularly concluded that individuals who refuse to participate in interviews and cooperate within the infractions process commit Level I violations of Bylaws 10 and 19. See OSU (concluding the associate head coach committed Level I violations when he refused to participate in the investigation and processing of the case) and Louisville (concluding the former director of basketball operations committed Level I unethical conduct and cooperation violations when he refused to participate in interviews, respond to the allegations and participate in the infractions hearing). Furthermore, Bylaw 19.1.1 identifies failure to cooperate and individual unethical conduct as examples of Level I severe breaches of conduct. Thus, consistent with Bylaw 19.1.1-(c) and past case guidance, the panel concluded that the associate head coach’s conduct constitutes a Level I violation.
Violations of NCAA Division I Manual Bylaws 19.2.3 and 19.2.3-(b) (2020-21)
Following his separation from Auburn, the assistant coach failed to meet his legislated responsibility to cooperate when he refused to participate in an additional interview with the enforcement staff to address new information provided by a nonscholastic coach. The assistant coach disputed the allegation. The panel concluded that the assistant coach committed a Level I violation.
Beginning in September 2020, the enforcement staff requested that the assistant coach participate in an interview to address new information provided by the nonscholastic coach. Shortly thereafter, the enforcement staff learned that family medical issues were impacting the assistant coach’s ability to schedule an interview. The enforcement staff reached out on five separate occasions from that time through November 12, 2020, to schedule the interview. The assistant coach’s counsel ultimately informed the NCAA enforcement staff that the assistant coach would not participate in an in-person or virtual interview. The assistant coach’s refusal violated Bylaw 19.
As stated above, Bylaw 19.2.3 requires current and former staff members to assist and fully cooperate with the enforcement staff during infractions cases. This includes timely participation in interviews and providing complete and truthful responses. See Bylaw 19.2.3-(b).
The assistant coach disagreed that he failed to cooperate with the NCAA enforcement staff in violation of Bylaw 19. Specifically, the assistant coach emphasized that the delay in responding to the NCAA enforcement staff was due to his mother’s medical issues and eventual passing in early October 2020. Further, the assistant coach had already participated in two prior interviews with the NCAA enforcement staff earlier in the investigation but offered to answer any additional questions in written form rather than standard interview format. Although the panel is sympathetic to the assistant coach’s position, he did not meet his legislated responsibility to cooperate. Investigations evolve as additional information becomes available. Thus, on occasion, the NCAA enforcement staff may need to interview individuals—particularly central actors—on multiple occasions. Furthering the objectives of the NCAA’s infractions program is a fundamental obligation of current and former institutional staff members. Although individuals may need to work around personal and scheduling circumstances, simply refusing to participate is not acceptable. Here, even though the assistant coach previously interviewed and denied any involvement in student-athlete 3’s fall 2016 tuition payment, the NCAA enforcement staff uncovered new information that required further investigation. The assistant coach had an obligation to participate in an interview.
COI has routinely emphasized that the responsibility to cooperate means full cooperation throughout the process. See University of Connecticut (2019) (concluding that the head men’s basketball coach failed to cooperate when he declined to participate in a second interview after his termination from the institution); University of Louisiana at Lafayette (2016) (concluding that an assistant football coach failed to cooperate when he declined to participate in a third interview and furnish phone records); and SMU (concluding that a men’s basketball administrative assistant failed to cooperate in the later stages of the investigation after having participated in two interviews). Consistent with the COI’s conclusions in those cases, the assistant coach’s participation in two interviews does not excuse his refusal to engage in an additional interview once new information was discovered.
Relevantly, the COI has recently concluded that offering to respond to written questions when the enforcement staff requested an in-person interview is not full cooperation. See Baylor University (2021) (concluding that an assistant operations director failed to cooperate with the enforcement staff despite offering to respond to written questions). In Baylor, COI also explicitly identified the issue with permitting written responses to questions, stating that they “do not provide the questioner with the opportunity to ask follow-up questions in the moment or to explore the details and context of an individual’s response.” Here, as in Baylor, the assistant coach’s offer to respond to written questions does not amount to full cooperation.
In terms of level, the failure to cooperate violations in the above-referenced cases were all designated as Level I. Further, Bylaw 19.1.1-(c) identifies an individual’s failure to cooperate as an example of a violation that makes a Level I designation more appropriate. In accordance with case guidance and the bylaws, the panel concluded that the assistant coach failed to fully cooperate with the enforcement staff, and the violation is Level I.
Violations Not Demonstrated
The Notice of Allegations alleged that the assistant coach violated the principles of ethical conduct, as well as financial aid and benefits legislation, when he arranged for and provided tuition payments for student-athlete 3. Based on this allegation, the enforcement staff claimed that student-athlete 3 participated in two contests and received actual and necessary expenses while ineligible. Further, in addition to violating his affirmative obligations under Bylaw 19, the enforcement staff alleged that the assistant coach’s refusal to cooperate supported an unethical conduct violation under Bylaw 10. Although there was information that appeared to link the assistant coach to the tuition payments, the panel ultimately could not conclude that the assistant coach paid or arranged for the payment of student-athlete 3’s tuition. Likewise, the panel holds the assistant coach accountable for his failure to cooperate under Bylaw 19 but does not conclude that the assistant coach engaged in unethical conduct under Bylaws 10.1 and 10.1-(a).
With respect to the tuition payments, Bylaw 10.1-(b), describes unethical conduct as knowing involvement in offering or providing a prospective or an enrolled student-athlete an improper inducement or extra benefit or improper financial aid. Bylaw 15 governs financial aid. Under Bylaw 15.02.3, a student-athlete is prohibited from receiving financial aid other than that permitted by the Association, and those who receive impermissible aid are rendered ineligible. Similarly, Bylaw 184.108.40.206 prohibits a student-athlete from receiving extra benefits not authorized under NCAA legislation. Bylaw 16.8.1 permits an institution to provide actual and necessary expenses associated with competition but only for eligible student-athletes. A student-athlete becomes ineligible when they receive impermissible benefits or financial aid. When that occurs, Bylaw 12 requires the institution to withhold the student-athlete from competition.
Whether the assistant coach was involved in or arranged student-athlete 3’s tuition payments was an incredibly close call for the panel. The information in the record, which included the nonscholastic coach’s statements, cellphone records and commonalities around public IP addresses suggested more than mere coincidence. On the other hand, credibility issues related to the nonscholastic coach undermined many of his claims.
The panel’s decision-making process was hindered by the refusal of student-athlete 3 and his father to participate in the investigation. The panel was disappointed because part of the hesitancy to participate stemmed from concerns with active participation by Auburn. Rather than facilitate the development of key information by permitting the enforcement staff to go forward with the interviews in its absence, Auburn raised objections to being omitted, and the interviews ultimately did not occur. The panel was not indifferent to institutional concerns related to the development of information that could materially affect an institution or the fact that certain procedures are in place to ensure fairness throughout the process, but post-interview alternatives could have and should have been explored to develop necessary information.
In the end, the panel was left with phone calls, public IP commonalities and illegible money orders that appeared to support some of the nonscholastic coach’s statements. While these facts are troubling, the case record and the parties’ statements at the hearing contain an overwhelming degree of conflicting, confusing and incomplete information—information that could have been cleared up with the participation of student-athlete 3 and his father.
To be clear, the information suggests that something impermissible occurred with the payment of student-athlete 3’s tuition. However, based on the available facts, the panel cannot conclude that the assistant coach provided or arranged for the impermissible benefit and financial aid or that he committed an unethical conduct violation. Moreover, because the panel does not conclude that violations of Bylaws 15 and 16 occurred, student-athlete 3 did not compete or receive actual and necessary expenses in violation of Bylaw 12.
Additionally, the panel concluded that the assistant coach did not engage in unethical conduct when he failed to participate in a third interview with the enforcement staff. Bylaw 10.1-(a) identifies a staff member’s refusal to furnish information relevant to an investigation as an example of unethical conduct.
The assistant coach indicated that a primary reason for declining to participate in a standard interview with the enforcement staff was the illness and subsequent passing of his mother. The assistant coach’s delay in responding to the enforcement staff and eventual refusal to participate in an in-person or virtual interview prevented the enforcement staff from gaining information on allegations made by the nonscholastic coach. Although this amounted to a failure to cooperate under Bylaw 19, the assistant coach’s decision was largely based on unique and serious family circumstances. Thus, based on the unique facts of this case, the panel concluded that he did not act unethically in violation of Bylaw 10.
Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4
Aggravating Factors for the Institution
19.9.3-(a): Multiple Level I violations by the institution;
19.9.3-(b): A history of Level I, Level II or major violations by the institution;
19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation
or related wrongful conduct;
19.9.3-(i): One or more violations caused significant ineligibility or other substantial harm to a student-athlete or prospect; and
19.9.3-(n): The institution employs an athletics staff member who is subject to a show-cause order and during the period of the show-cause order that individual’s conduct, or for a director of athletics and/or head coach, conduct involving any program in which he or she has oversight, results in an institutional Level I or Level II violation in this case.
Mitigating Factors for the Institution
19.9.4-(b): Prompt acknowledgment of the violations, acceptance of responsibility and imposition of meaningful corrective measures and/or penalties; and
19.9.4-(d): An established history of self-reporting Level III or secondary violations.
Aggravating Factors for the Associate Head Coach
19.9.3-(a): Multiple Level I violations by the involved individual;
19.9.3-(e): Unethical conduct, compromising the integrity of an investigation, failing to cooperate during an investigation or refusing to provide all relevant or requested information;
19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation or related wrongful conduct;
19.9.3-(i): One or more violations caused significant ineligibility or other substantial harm to a student-athlete or prospect;
19.9.3-(j): Conduct or circumstances demonstrating an abuse of a position of trust;
19.9.3-(l): Conduct intended to generate pecuniary gain for the involved individual; and
19.9.3-(m): Intentional, willful or blatant disregard for the NCAA constitution and bylaws.
Mitigating Factors for the Associate Head Coach
19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations by the involved individual.
Aggravating Factors for the Assistant Coach
19.9.3-(e): Failing to cooperate during an investigation or refusing to provide all relevant or requested information.
Mitigating Factors for the Assistant Coach
19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations by the involved individual.
Aggravating Factors for the Head Coach
19.9.3-(b): A history of Level I, Level II or major violations by the involved individual.
Mitigating Factors for the Head Coach
19.9.4-(b): Prompt acknowledgment of the violations, acceptance of responsibility and imposition of meaningful corrective measures and/or penalties.
As a result of the foregoing, the Committee penalized Auburn as follows: