The NCAA Division I Committee on Infractions (“COI” or “Committee” or “panel”) is an independent administrative body of the NCAA comprised of individuals from the Division I membership and the public. COI decides infractions cases involving member institutions and their staffs. This case involves Baylor University (“BU” or “Baylor” or “institution”). This case involved Level II and III impermissible benefits and drug testing violations in Baylor’s football program and Level II violations involving the institution’s student host program. But the allegations at the heart of this case centered on conduct never before presented to the COI—namely, that Baylor shielded football student-athletes from the institution’s disciplinary process and failed to report allegations of abhorrent misconduct by football student-athletes, including instances of sexual and interpersonal violence. Baylor admitted to moral and ethical failings in its handling of sexual violence on campus but argued that those failings, however egregious, did not constitute violations of NCAA legislation. The panel indicated that such actions are outside the NCAA’s governance of institutions, but noted its agreement with Baylor’s interpretation was with “tremendous reluctance”. The panel classified the case as Level II-Standard for Baylor.
The Committee concluded BU committed the following violations of NCAA rules:
Violations of NCAA Division I Manual 14.11.1, 18.104.22.168 and 22.214.171.124 (2011-12)
In October 2011, the institution provided an impermissible benefit to student-athlete 4 when the director of athletics and associate AD for student services did not disclose that the student-athlete did not meet the conditions of his reinstatement as established by the president. The staff members’ failure to disclose this information to the president enabled the student-athlete to remain enrolled and compete on behalf of the institution. Baylor acknowledged that this conduct may constitute an impermissible benefit, but argued that the allegation was barred by the statute of limitations. The panel concluded that a Level II violation occurred, and it is not time barred.
In summer 2011, the president heard student-athlete 4’s late appeal, overturned his suspension and reinstated him on the condition that the student-athlete complete an academic improvement plan. The plan required 100 percent academic honesty. In October 2011, the student-athlete did not meet the conditions of his reinstatement when he cheated on an in-class quiz. Although the director of athletics and the associate AD for student services were aware of student-athlete 4’s cheating, they did not inform the president or the institution’s Office of Academic Integrity. As a result, student-athlete 4 remained enrolled and went on to compete that season. The non-reporting of student-athlete 4’s failure to meet the conditions of his reinstatement constituted an impermissible benefit under Bylaw 16. Additionally, the institution violated Bylaw 14 when it failed to withhold the ineligible student-athlete from competition.
NCAA Bylaws 16 and 14 govern benefits and eligibility, respectively. NCAA Bylaw 126.96.36.199 restricts student-athletes from receiving extra benefits. The bylaw defines extra benefits as special arrangements by an institutional employee to provide a student-athlete or his or her family or friends with a benefit not expressly authorized by NCAA legislation. NCAA Bylaw 188.8.131.52 permits institutions to provide actual and necessary expenses to student-athletes representing the institution in practice or competition but reserves those expenses for eligible student-athletes only. Finally, institutions are obligated to withhold ineligible student-athletes from competition pursuant to NCAA Bylaw 14.11.1.
When the director of athletics and associate AD for student services did not notify the president of student-athlete 4’s cheating, the institution provided a benefit—e.g., a special arrangement—that was not generally available to other students at the institution. In reinstating the student-athlete, the president required 100 percent academic honesty and charged the athletics department with monitoring compliance with the conditions of reinstatement. When the student-athlete cheated on a quiz, this plainly did not meet those conditions. Indeed, as the president later confirmed, severe penalties would have been warranted had he been informed of the incident. Instead, the student-athlete suffered no consequences and went on to compete in seven contests for the institution.
COI has previously concluded that a coach who makes a special academic arrangement to ensure a student-athlete’s eligibility provides an impermissible benefit in violation of Bylaw 16. See University of Georgia (2014) (concluding that the head swimming and diving coach provided an impermissible benefit when he asked a professor to add a pass/fail independent study to a student-athlete’s fall schedule as a “safety net” in case the student-athlete did not pass all of his classes). As in Georgia, and consistent with NCAA Bylaw 19.1.2, the panel concludes that this violation is Level II because it provided more than a minimal but less than a substantial or extensive benefit. It also provided more than a minimal competitive advantage because it allowed the student-athlete to remain enrolled and compete in seven contests for the institution.
Although Baylor acknowledged that this conduct may constitute a violation, it argued that the allegation was barred by the NCAA Bylaw 19.5.11 statute of limitations, because the conduct occurred more than four years prior to May 2016—the date the institution notified the NCAA enforcement staff of potential violations. The panel concluded that the allegation is not time barred, because Baylor should have reported the violation at the time it occurred.
NCAA Bylaw 19.5.11 states in part:
Allegations included in a notice of allegations shall be limited to possible violations occurring not earlier than four years before the date the notice of inquiry is provided to the institution or the date the institution notifies (or, if earlier, should have notified) the enforcement staff of its inquiries into the matter.
Here, the institution should have notified the NCAA enforcement staff of the potential violation in October 2011, thus marking the correct date for the statute of limitations. Again, the student-athlete’s cheating clearly did not meet the conditions the president established for reinstatement. Both the director of athletics and the associate AD for student services—the individual charged with monitoring student-athlete 4’s completion of the academic improvement plan—knew those conditions well. The failure to report such a clear violation related to the student-athlete’s academics was an impermissible benefit that the institution should have investigated and reported to the enforcement staff at the time it occurred. Accordingly, COI concluded this allegation was not untimely.
At the infractions hearing, Baylor asserted that this reading of NCAA Bylaw 19.5.11 would render the statute of limitations moot, but COI concluded it does not. Any other interpretation would establish a playbook for disingenuous institutions to sit on known violations and then claim that any allegations related to those violations are time barred. Such an outcome would severely jeopardize the infractions process. Accordingly, NCAA Bylaw 19.5.11 states that the statute of limitations begins to run from the date the institution notified “or, if earlier, should have notified” the enforcement staff of the potential violation. The “should have notified” date will not attach to all violations, as Baylor appears to suggest. But here, it is not a close call. In this case, the violation was clear, unambiguous and should have been recognizable to the institution at the time it occurred.
Violations of NCAA Division I Bylaws 184.108.40.206, 220.127.116.11 and 18.104.22.168.8 (2012-13 through 2015-16)
Over four academic years, Baylor utilized a predominantly female student host group that was not designated in a manner consistent with the institution’s policy for providing campus visits and tours to prospective students generally. During this same time period, the football program provided the student hosts with impermissible meals on nearly 30 occasions. Baylor and the NCAA enforcement staff substantially agreed to the facts and agreed that those facts constituted violations of NCAA recruiting legislation. Baylor argued, however, that the violations were Level III. The panel concluded that Level II violations occurred.
From the 2012-13 through 2015-16 academic years, Baylor utilized a predominantly female student host group, the Baylor Bruins, for football recruiting events on campus. The institution organized and operated the Bruins separately from the admissions office (Campus Visits), which was the entity responsible for hosting and providing tours to all prospective students. The Bruins served as highly visible recruiting hosts for football prospects during official and unofficial visits, and the football program sometimes provided them with meals during these events. The manner in which Baylor used and operated the Bruins violated NCAA Bylaw 13 recruiting legislation.
NCAA Bylaw 13 governs recruiting, including the use of student host groups in recruiting activities. NCAA Bylaws 22.214.171.124 and 126.96.36.199.8 address the use of student hosts during official and unofficial visits, respectively. These bylaws require student hosts to be either current student-athletes or students who are designated in a manner consistent with the institution’s policies for providing campus tours or visits to prospective students in general. The legislative rationale associated with these bylaws states that “[a] prohibition against gender-based groups being involved in recruiting activities on official and unofficial visits should assist institutions in establishing a more reasonable environment that is consistent with the recruitment of other prospective students who visit their campuses.” Finally, pursuant to NCAA Bylaw 188.8.131.52, an institution may not provide a free meal to a member of a student host group during an official visit unless the student is designated as the one student host for the prospect.
The Bruins were essentially a recruiting tool for Baylor’s football program. Although they worked at alumni events as well, a primary function of the Bruins was to work football events and serve as student hosts for football prospects and their families during official and unofficial visits. Housed within the Office of Constituent Engagement, the Bruins were organized and operated independently of Campus Visits. The Bruins were not supervised by Campus Visits, did not receive the same training, and did not participate in the same admissions recruitment events. Thus, the Bruins operated outside the institution’s processes for recruiting prospective students generally and therefore operated in violation of NCAA Bylaws 184.108.40.206 and 220.127.116.11.8. Because the Bruins were not a permissible student host group, the institution’s provision of free meals to them during official visits violated NCAA Bylaw 18.104.22.168.
In addition to the organizational issues, the panel was also expressed concerned with Baylor’s continued use of a primarily gender-based host group. Member institutions have been on notice since 2004 that the use of gender-based groups is impermissible and compromises NCAA values. See NCAA Division I Proposal 2014-96 – Recruiting – Official and Unofficial Visits – Student Hosts. Although Baylor eventually opened the group to men, very few joined, and it remained an overwhelmingly female group. Furthermore, members appear to have been selected based at least partly on looks—applicants were required to submit an 8 x 10 photo—and the dress code was geared toward women. The gender-based nature of this group is especially concerning in light of the campus-wide cultural issues and Title IX deficiencies at Baylor during this time, as well as the extremely troubling assertions reported by the Title IX coordinator, including that the Bruins were “kind of at the disposal of football players in a very inappropriate way.”
In view of these concerns, the panel gave serious consideration to designating this violation as Level I. Ultimately, however, the panel determined that the relevant case guidance involving student host program violations indicated that a Level II designation was more appropriate. See Rutgers, the State University of New Jersey, New Brunswick (2017) (concluding that Level II violations occurred where, over a five-year period, the institution’s student host group engaged in impermissible recruiting activities on and off campus) and Oklahoma State University (2015) (concluding that Level II violations occurred where the institution utilized a gender-based student host group that engaged in impermissible hosting activities during football prospects’ official and unofficial visits). The violations are not Level III as Baylor argued. The violations occurred over a four-year period and, therefore, were not isolated or limited in nature, and they provided more than a minimal recruiting advantage to the institution. See NCAA Bylaw 19.1.3. Indeed, the Bruins were a highly visible group during football prospects’ campus visits, and some prospects even stated that their interactions with the Bruins positively impacted their decision to choose Baylor. The violations are Level II.
Violations of NCAA Division I Manual Bylaws 10.1, 10.1-(a) and 19.2.3 (2017-18 and 2018-19)
Following his separation from Baylor, the assistant operations director 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. The assistant operations director disputed the allegation. The panel concluded the assistant operations director committed a Level I violation.
Beginning in the fall of 2017, the assistant operations director failed to meet his obligation under NCAA bylaws to cooperate with the investigation. He declined multiple requests to participate in an interview with the NCAA enforcement staff and insisted that he had no obligation to cooperate. The conduct of the assistant operations director hindered the investigation in this case and violated NCAA Bylaws 10 and 19.
NCAA Bylaw 10.1-(a) obligates current and former institutional staff members to make complete disclosure of information concerning possible violations when requested by the enforcement staff. Failure to do so may constitute unethical conduct under NCAA Bylaw 10.1. Along these lines, and to further the mission of the infractions process, NCAA Bylaw 19.2.3 requires current and former staff members to assist and cooperate fully with the NCAA enforcement staff.
The assistant operations director failed to meet his obligation under these bylaws. Beginning in November 2017 and continuing throughout the investigation and processing of this case, the assistant operations director repeatedly refused to interview with the enforcement staff. Through his representative, the assistant operations director insisted that he had no obligation to cooperate with both current and former staff members of NCAA member institutions. There is simply no basis for asserting otherwise.
Indeed, if former staff members were not obligated to cooperate with the infractions process, the NCAA enforcement staff’s ability to investigate potential violations would be significantly hindered, as it was here. As the NCAA enforcement staff conducted interviews in this case, multiple interviewees referred the staff to the assistant operations director for more complete information regarding specific student conduct issues involving football student-athletes. His representative suggests that these individuals were attempting to “scapegoat” his client. But if the assistant operations director was concerned that other individuals were potentially implicating him in violations, he had the opportunity to interview with the staff and set the record straight. He chose otherwise and violated NCAA Bylaws 10.1-(a) and 19.2.3 in doing so.
The assistant operations director’s violation is not cured by his offer to respond to written questions. This is not the manner of cooperation the NCAA enforcement staff requested, and it is easy to understand why. Written questions 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. COI has routinely emphasized that the responsibility to cooperate means full cooperation. 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); 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 after having participated in two interviews earlier in the investigation); and Southern Methodist University (SMU) (2015) (concluding that a men’s basketball administrative assistant failed to cooperate in the later stages of the investigation after having participated in two interviews). Simply put, offering to respond to written questions when the enforcement staff has requested an in-person interview is not full cooperation.
Similarly, the assistant operations director’s offer to sit for a post-NOA interview—in exchange for the enforcement staff’s withdrawal of the allegation—does not meet the obligation to cooperate. In past cases, the COI has credited an individual for belated cooperation by designating the violation Level II rather than Level I. See University of North Carolina, Chapel Hill (2017) (concluding that a curriculum secretary committed Level II violations of NCAA Bylaws 10 and 19 when she refused to participate in an investigation for nearly three years but eventually responded to the allegations, interviewed and participated in the hearing) and Syracuse University (2015) (concluding that an academic coordinator’s belated participation in an interview and in the infractions hearing constituted a Level II unethical conduct violation). But as these cases demonstrate, belated engagement with the infractions process does not erase the initial failure to cooperate. It is through full and timely cooperation that the enforcement staff—and, in turn, the COI—is able to obtain the most complete and accurate information.
In accordance with NCAA Bylaw 19.1.1, the panel concluded that the assistant operations coordinator’s failure to cooperate and ethical conduct violations are Level I. See Bylaw 19.1.1-(c) and (d) (identifying failure to cooperate and individual unethical conduct as examples of Level I enforcement staff’s investigation because he was no longer employed by an NCAA member institution. This is incorrect. By their plain language, NCAA Bylaws 10.1-(a) and 19.2.3 apply violations). This designation is consistent with past case guidance, with the North Carolina decision being particularly instructive. There, COI differentiated between the curriculum secretary, who attempted to cure her failure to cooperate by participating late in the process, and the department chair, who refused to cooperate throughout the duration of the case. COI concluded that the curriculum secretary committed Level II violations whereas the department chair’s violations were Level I. See also Connecticut (concluding the head coach committed Level I failure to cooperate and ethical conduct violations when he declined to participate in a second interview) and University of Northern Colorado (2017) (concluding an assistant men’s basketball coach committed Level I failure to cooperate and ethical conduct violations when he would not interview with the enforcement staff). As in these cases, the assistant operations director’s refusal to participate in an interview and assist the investigation in this case is a Level I violation.
Level III Violations
Impermissible Benefits in Violation of NCAA Division I Manual Bylaw 22.214.171.124 (2010-11). In January 2011, a football student assistant paid $310.25 in institutional parking ticket fines on behalf of student-athlete 3. The student assistant made the payment in order to release a “fine” hold on student-athlete 3’s account that was preventing him from registering for spring semester classes and thereby being eligible to compete.
Failure to Comply with the Institution’s Drug-Test Policy in Violation of NCAA Division I Manual Bylaws 10.2 and 14.01.3 (2012-13). In December 2012, Judicial Affairs notified the athletics department that student-athlete 6 had tested positive for marijuana for the second time and was to be suspended from the next full contest. However, Baylor permitted the student-athlete to compete in a portion of the next contest—a bowl game—in violation of the institution’s drug-testing policy. Baylor agreed that this constituted a Level III violation.
Violations Not Demonstrated
The Notice of Allegations to the institution and head coach alleged five categories of violations: (1) impermissible benefits in the football program; (2) failure to comply with the institution’s drug testing policy; (3) use of an impermissible student host program; (4) head coach responsibility failures; and (5) lack of institutional control. With the exception of the allegations involving the student host program and the limited benefits and drug testing violations described above—each of which were subparts of broader allegations—the panel concluded that the remainder of these allegations did not support violations of NCAA legislation.
Impermissible Benefits in the Football Program
The NCAA enforcement staff alleged that from the 2010-11 through 2013-14 academic years, Baylor provided impermissible benefits to football student-athletes in two ways: (1) by failing to report student-athlete misconduct—including allegations of sexual assault and violence—in order to shield student-athletes from disciplinary and investigative processes and (2) by providing special arrangements for football student-athletes within the student conduct process. In determining whether the facts in this case supported these allegations, the panel considered both the nature of NCAA Bylaw 16 impermissible benefits legislation and the campus-wide culture and circumstances at Baylor at the time the alleged conduct occurred. The panel took its responsibility very seriously, bearing in mind that what it does here will impact not just Baylor but the entire NCAA membership. Ultimately, the panel does not conclude that this conduct violated NCAA legislation.
In every infractions case, COI’s authority is limited by the legislation itself. As discussed above, the NCAA’s member institutions have not adopted legislation regulating how institutions must respond to allegations of sexual and interpersonal violence involving student-athletes. Because there is no legislation specifically addressing conduct in this area, the enforcement staff charged this case under NCAA Bylaw 16. NCAA Bylaw 16 governs benefits, with NCAA Bylaw 126.96.36.199 providing the general rule that a student-athlete shall not receive any extra benefit. The bylaw defines “extra benefit” as any special arrangement by an institutional employee or booster to provide a student-athlete or his or her family or friends with a benefit not expressly authorized by NCAA legislation. Along with the general prohibition, NCAA Bylaw 188.8.131.52 identifies specifically prohibited benefits: a loan of money, a guarantee of bond, an automobile or use of an automobile, transportation, and signing or co-signing for a student-athlete’s loan. Pursuant to NCAA Bylaw 184.108.40.206, a benefit is not prohibited if it is generally available to the institution’s students. The question presented to this panel was whether student-athletes at Baylor who were accused of sexual or interpersonal violence were given an “extra benefit” in the form of more lenient treatment than other non-athlete students at Baylor accused of similar wrongdoing.
Failure to Report Sexual Assault and Interpersonal Violence
In applying Bylaw 16 to the allegations involving alleged sexual assault, interpersonal violence and threats of violence, the panel considered two questions. First, is the non-reporting of allegations of sexual violence and the lack of adequate institutional response to such allegations within the scope of what the membership contemplated when it adopted NCAA Bylaw 16? Second, assuming such non-reporting constitutes a “benefit” within the meaning of NCAA Bylaw 16, was it limited solely to athletics, or did it occur across the wider campus community?
This seven-member volunteer panel is not the appropriate body to answer the first question on behalf of the entire NCAA membership. To be clear, this is not a punt. The members of this panel understand that our voluntary service on the COI requires us to make difficult decisions and we do not shy away from that responsibility. But a question of this magnitude, in an area where the membership has not expressly legislated, requires collective membership consideration.
Preventing campus sexual violence has been an area of focus for the NCAA membership over the past decade. In 2010, the NCAA Executive Committee (now the NCAA Board of Governors) directed the NCAA Committee on Sportsmanship and Ethical Conduct to support the membership in addressing sexual violence on campus. Various initiatives followed, and in 2016 an inter-disciplinary task force produced the Sexual Violence Prevention Tool Kit, which was updated in August 2019. In August 2017, the Board of Governors adopted an Association-wide Policy on Campus Sexual Violence. In short, this is a major policy concern for the Association and its membership.
These efforts, however, have been focused on preventing sexual violence on campus and providing resources to member institutions so they can address this important issue locally. By not adopting legislation addressing campus sexual violence, the membership has decided that individual institutions should retain the responsibility and authority, along with law enforcement, to investigate and address allegations of sexual violence in the first instance. And when member institutions fail in this responsibility, the membership has signaled that law enforcement, government and other regulatory bodies are the appropriate entities to investigate and hold institutions accountable.
Baylor’s written materials and presentation at the hearing identified multiple ways in which the institution has been (and continues to be) held accountable for its admitted failings in responding to sexual violence on campus. As described in the Findings of Fact, this has included investigations by the U.S. Department of Education’s Office of Civil Rights, Baylor’s accrediting body and the Texas Rangers. The institution also underwent two independent reviews by third-party law firms and the Big 12 Conference imposed significant financial penalties based on the reputational damage Baylor caused to the conference. Additionally, Baylor has been a party to multiple lawsuits related to its response to sexual violence, some of which are ongoing.
It is for the collective NCAA membership to decide if the NCAA has a role alongside these entities in addressing institutional responses to sexual violence—whether through NCAA Bylaw 16 extra benefits legislation or some other legislative vehicle. Any expansion of the NCAA’s authority in this area is not a decision that should be made by the seven volunteer members of this panel on behalf of nearly 1,100 member institutions.
The panel also finds that the non-reporting and mishandling of sexual violence allegations at Baylor was not limited solely to athletics. Baylor admitted that failure to report sexual violence was a campus-wide problem. Both the Margolis Healy and Pepper Hamilton reviews found widespread institutional failings in Baylor’s Title IX compliance, including a total failure to train faculty and staff on their reporting obligations. This was, in the words of Baylor’s former president, “a colossal operational failure.” And prior to 2015, Baylor had no institutional Title IX policy and no mandatory reporting requirements. Although some staff members sought guidance when they became aware of cases of sexual violence—such as the advisors in the School of Education—many did not. At the infractions hearing, the former Title IX coordinator stated unequivocally that she believed faculty and staff both within and outside the athletics department did not report information regarding sexual violence. The drastic increase in the number of reports the Title IX coordinator received after she assumed her role and began providing training demonstrates campus-wide underreporting prior to 2015.
None of these excuses the failure of coaching and athletics staff to report allegations of sexual and interpersonal violence. Independent of potential NCAA violations, this panel expects more of campus leaders. As individuals responsible for the well-being and development of young people, they should have done more to report these allegations regardless of a lack of training or reporting policies. Simply put, they should have known better. But where these failures occurred campus-wide, the panel cannot conclude that an impermissible benefit occurred under Bylaw 16.
Special Arrangements Within the Student Conduct Process
The second type of impermissible benefit alleged by the enforcement staff consisted of special arrangements for football student-athletes within the student conduct process. Specifically, the enforcement staff alleged that coaching staff, athletics administrators and members of the Board of Regents intervened in the student conduct process in order to obtain favorable outcomes for football student-athletes and keep them eligible for competition. As the panel learned at the hearing, Baylor’s student conduct process was, in many ways, idiosyncratic. This is especially true when it came to the president’s involvement in that process. Ultimately, however, the record did not demonstrate that the benefits provided to student-athletes in this process were not also available to the general student population.
First, the NCAA enforcement staff alleged that student-athlete 3 received impermissible benefits when an assistant coach and the senior associate AD assisted him with drafting a community service summary and an appeal statement, respectively. The panel does not conclude that this type of assistance constitutes an impermissible benefit. The COI has previously concluded that assistance with a similar type of non-academic submission did not violate NCAA legislation. Specifically, in Syracuse, the COI concluded that no violation occurred when one or more athletics department staff members assisted a student-athlete with a personal statement submitted to the NCAA in connection with an eligibility waiver. By contrast, a violation did occur in Syracuse when athletics employees helped the same student-athlete convert the personal statement into a paper that was submitted for academic credit. Here, the panel concludes that the community service summary and appeal statement are analogous to the personal statement in Syracuse, and the athletics staff’s assistance with these submissions did not constitute an impermissible benefit.24 Because the panel concluded that no violations occurred, it did not consider whether these allegations were barred by the statute of limitations.
The enforcement staff also alleged that student-athletes 3 and 4 received impermissible benefits related to their appeals to the president’s office. With respect to student-athlete 3, the alleged benefit was the presence of the head coach and director of athletics during the student-athlete’s appeal meeting with the president. For student-athlete 4, the alleged benefit occurred when the president granted his appeal nearly four months after the appeal deadline. The panel concludes that neither of these circumstances constituted an impermissible benefit because they were generally available to all students.
By his own admission, the president was highly involved in student appeals and took a generous approach aimed at keeping students in school. This was true with respect to all appeals—not only those involving student-athletes. Indeed, the institution identified seven previous appeals in which the president modified or reversed the punishment of a non-athlete student. With respect to student-athlete 3, the president stated that the presence of the director of athletics and head coach at the appeal meeting did not influence his decision in any way and that he likely invited them in order to gather more facts before making a decision. He also stated that any faculty or staff member at Baylor was welcome to communicate with him about a student. The vice president for student life stated that it was his own practice to permit students to have an individual with them when he heard their appeals. Thus, it does not appear that the inclusion of additional individuals during an appeal meeting was a benefit uniquely available to student-athletes.
Similarly, with respect to student-athlete 4’s late appeal, the president stated that he would have granted the appeal for a non-athlete student under the same circumstances. He also explained that he had never granted an appeal that late because no other appeal had ever been submitted to him that late—it was a “class of one.” The COI has previously declined to conclude that a NCAA Bylaw 16 violation occurred where the individual who provided the alleged impermissible benefit represented that the same benefit would be available to any student. See University of Oregon (2018) (concluding that an adjunct instructor’s grade change for a women’s track and field student-athlete did not constitute an impermissible benefit where the instructor stated that he would have made the same accommodation for any student who came to him with a similar request). To be clear, however, a “class of one” does not automatically mean that no violation occurred. Such a conclusion would permit a one-time exception any time a benefit or accommodation was provided for the first time. The panel bases its decision on the fact that the president’s involvement in all other student conduct issues appears to be indistinguishable from how he handled issues involving student-athletes. Thus, the panel concludes that granting the untimely appeal was not a deviation from the president’s open-door approach to appeals and is an accommodation that would have been available to other students at Baylor.
Finally, the NCAA enforcement staff alleged that involvement in student-athlete 5’s appeal by members of the Board of Regents, as well as the senior vice president’s grant of that appeal, constituted an impermissible benefit. The panel noted this was a closer call. The record suggests that members of the Board of Regents were overly involved in student conduct matters, and the head coach, director of athletics and senior vice president were overly comfortable reaching out to them. However, while these facts demonstrate that there was a lack of sufficient oversight of the student conduct process and an irregular level of involvement by Board members, the panel concluded that the facts do not demonstrate an impermissible benefit.
First, the panel did not determine that the senior vice president’s involvement in the appeal was an impermissible benefit. No Baylor policy prevented the president from delegating his duty to hear a student conduct appeal. The president acknowledged that his chief of staff was managing the presidential appeal process at this time, and she delegated this particular appeal to the senior vice president. Additionally, Baylor’s counsel stated at the infractions hearing that the duty had been delegated to the general counsel’s office on at least one previous occasion involving a non-athlete student’s appeal. Accordingly, it was not outside of the institution’s usual processes for the senior vice president to hear the appeal.
Second, conversations with Board of Regents members are not NCAA violations. It is not impermissible for coaches or administrators to speak with board members regarding individual students. The vice president for student life stated at the hearing that he sometimes received “feedback” from Board members regarding student appeals—for athletes and non-athletes alike. If the conversations here were intended to or did influence the outcome of the student conduct appeal, then an impermissible benefit violation would be demonstrated. But the conversations in the record are too vague for the panel to conclude that they were meant to influence an outcome.
Finally, the context of this appeal is important. It came at a time when the institution was evaluating its drug testing policy to determine whether it was unduly harsh. Within that context, the senior vice president stated that the right decision for student-athlete 5 was to give him a second chance and an opportunity to get treatment. This is consistent with the president’s restorative approach to student conduct appeals. The senior vice president also said that he would have made the same decision for any other student regardless of student-athlete status. Thus, based on the facts and circumstances of this allegation, the panel does not conclude that an impermissible benefit violation occurred.
Drug Testing and Failure to Monitor
The NOA alleged three violations related to the football program’s implementation of drug-testing penalties. The panel concluded that one of those allegations supported a Level III violation (see Part V. above). As for the other two allegations, however, the panel concludes that violations were not demonstrated. More specifically, the panel concludes that the facts underlying one allegation did not support a violation and the other allegation is barred by the statute of limitations. The enforcement staff also alleged that the institution failed to monitor its drug testing program. Because the panel concluded that only one Level III violation involving the drug testing program occurred, the panel does not conclude that Baylor failed to monitor its drug testing program.
First, the NCAA enforcement staff alleged that Baylor failed to follow its drug testing policy in January 2014 when the head coach withheld student-athlete 7 from the second half of the first game following his positive test rather than the first half of the game. The enforcement staff alleged that this violated Bylaws 10 and 14. The panel disagreed.
NCAA Bylaw 10.2 requires athletics personnel who have knowledge of a student-athlete’s use of a banned substance to comply with their institution’s drug testing policy. Relatedly, NCAA Bylaw 14.01.1 requires institutions to ensure that all student-athletes are in compliance with NCAA, conference and institutional rules and regulations. This includes the institution’s drug testing policy.
The panel did not conclude that Baylor was out of compliance with its drug testing policy when it withheld student-athlete 7 from the second half of the game rather than the first because the institution’s policy was ambiguous on this point. The policy required a half-game suspension that would take effect during the “first regular season . . . contest immediately following the receipt of the positive test.” The head coach believed he had discretion to implement the suspension during either half of the game. The panel stated it cannot say that this was a clear misreading of the policy, and therefore does not conclude that the institution acted inconsistently with its policy in this instance.
Second, the NCAA enforcement staff alleged that Baylor failed to follow its drug testing policy in November 2010 when it permitted student-athlete 3 to serve his one-game suspension over the course of two games. Although the institution’s policy stated that the suspension was to be served during the next full contest immediately following the positive drug test, the football program credited the student-athlete for one quarter he sat out during a previous game and only withheld him from three quarters of the next game. Baylor admitted—and the panel concludes—that the implementation of the suspension was inconsistent with the institution’s drug testing policy and therefore violated NCAA Bylaw 10 and 14. However, the panel concluded that this allegation is barred by the statute of limitations.
The NCAA enforcement staff argued that although this conduct occurred more than four years prior to May 2016—the date the institution notified the enforcement staff of potential violations—it is not untimely because it falls within an exception to the statute of limitations. Specifically, the enforcement staff relied on NCAA Bylaw 19.5.11-(c), which provides an exception when there is a pattern of willful violations on the part of the institution, which began before but continued into the four-year period. The enforcement staff maintained that athletics staff exhibited a pattern of compromising institutional accountability systems to ensure student-athlete 3 remained eligible, including by assisting with his community service summary, paying $310.25 to release the hold on his student account, drafting his appeal statement and being present during his appeal meeting with the president. Of this conduct, the panel concluded that only the $310.25 payment constituted a violation, and that violation was Level III. Although it is concerning that student-athlete 3 was so often involved in student conduct matters, the panel did not agree that there was a pattern of willful violations by the institution. Thus, the panel concluded that the exception does not apply, and this allegation is untimely.
Finally, the NCAA enforcement staff alleged that Baylor failed to monitor compliance with its athletics drug testing policy because on three occasions athletics administrators and the head coach failed to ensure that football student-athletes were withheld from contests in accordance with the policy. Of the three improper withholdings cited by the enforcement staff, the panel has concluded that only one of these constituted a violation and was timely alleged. That violation was Level III. The panel declined to conclude that the institution failed to monitor based on one Level III violation.
Head Coach Responsibility and Lack of Institutional Control
The NCAA enforcement staff alleged that the head coach failed to promote an atmosphere of compliance within the football program and the institution lacked control over its athletics program. Both allegations were based solely on the underlying impermissible benefit allegations in the football program—both the non-reporting of student-athlete misconduct and the allegations of special arrangements within the student conduct process. Because the panel concluded that the facts supported only one Level II and one Level III impermissible benefit violation, the panel did not conclude that the head coach failed to promote an atmosphere of compliance pursuant to NCAA Bylaw 11 or that the institution lacked control under NCAA Constitution 2 and 6.
NCAA Bylaws 220.127.116.11 (2010-11 through 2012-13) and 18.104.22.168 (2013-14) place an affirmative responsibility on head coaches to promote an atmosphere of compliance within their programs and monitor the activities of all who report to them either directly or indirectly. For institutions, the NCAA Constitution requires control and monitoring of their intercollegiate athletics programs to ensure those programs operate in compliance with NCAA legislation. NCAA Constitution sections 2.1.1, 2.8.1 and 6.01.1 all state the responsibility of institutions to control their athletics programs in compliance with NCAA legislation and to report instances of non-compliance.
The starting point for head coach responsibility is the presumption that head coaches are responsible for the conduct of staff who report directly and indirectly to them. Here, the panel has concluded that two impermissible benefit violations occurred in the football program: (1) the Level II violation that occurred when the director of athletics and associate AD failed to report student-athlete 4’s violation of the terms of his reinstatement and (2) the Level III violation that occurred when the student assistant made a $310.25 payment on student-athlete 3’s account at the direction of assistant coach 2. The head coach cannot be presumed responsible for the first violation as it did not involve staff who reported to him—rather, it involved the person he reported to. That leaves one Level III violation, which the panel concluded is insufficient in this case to support a head coach responsibility violation.
The panel’s analysis did not end there, however. The panel also considered whether the head coach’s own conduct—not the conduct of his staff—demonstrated that he failed to meet his responsibilities as a head coach. In particular, the panel gave careful scrutiny to the head coach’s handling of the specific instances of alleged sexual assault, interpersonal violence and threats of violence that are at the center of this case. In each instance, when the head coach received information from a staff member regarding potential criminal conduct by a football student-athlete, he did not report the information and did not personally look any further into the matter. He generally relied on the information provided to him by his staff and likewise relied on them to handle problems. His incurious attitude toward potential criminal conduct by his student-athletes was deeply troubling to the panel. As one panel member observed at the hearing when questioning the head coach’s lack of response to this information, “a lot of these things that we’re talking about, they’re not NCAA rules violations . . . [or] university policy violations. They’re felonies. [W]e’re talking about rapes and physical assaults.”
The head coach failed to meet even the most basic expectations of how a person should react to the kind of conduct at issue in this case. Furthermore, as a campus leader, the head coach is held to an even higher standard. He completely failed to meet this standard. However, there is no linkage between this conduct and Level I or II NCAA violations. The COI has never before concluded that a head coach responsibility violation occurred where there were no underlying NCAA violations. The panel makes no determination as to whether such an allegation or conclusion would be appropriate in a future case. But under the specific facts and circumstances of this case, the panel does not conclude that a head coach responsibility violation occurred.
The panel’s analysis of the institutional control allegation started from the same point, i.e., the absence of underlying NCAA violations. As with the head coach responsibility allegation, however, the analysis did not end there. The panel considered whether the violations related to the student host program, in conjunction with the Level II and III impermissible benefit and drug testing violations, supported a conclusion that the institution lacked control. As alleged in the NOA, however, the lack of institutional control allegation was based solely on the underlying impermissible benefits allegations. It was not tied to the allegations related to drug testing or the student host program. Accordingly, the panel defers to the enforcement staff’s charging decision and will not look to other violations to support a lack of institutional control violation.
The panel also considered whether Baylor’s admitted failures in handling campus sexual violence, standing alone, demonstrated that the institution lacked control. Baylor’s failures in this regard are well documented throughout this decision. As identified by the Board of Regents’ summary of the Pepper Hamilton review, those failures occurred campus-wide “at every level of Baylor’s administration.” In the most literal sense, therefore, it appears that Baylor lacked institutional control. But Constitution 2 and 6 address the control of an institution’s athletics program. Thus, it is not clear to the panel that these constitutional provisions are intended to reach the kind of widespread institutional failings that are at issue in this case, even when some of those failings occurred within the institution’s athletics department.
As the panel has stated previously in this decision, whether the NCAA infractions process has a role to play in addressing its member institutions’ responses to campus sexual violence is a vital philosophical decision that must be made by the Association’s membership. And if there is a role for the NCAA, the membership must determine the appropriate legislative vehicle to adjudicate such conduct. If the membership collectively decides that vehicle is NCAA Bylaw 16 benefits legislation, the institutional control principles of Constitution 2 and 6, or a new legislative scheme altogether, the COI will adjudicate future cases accordingly. But in applying the membership’s current legislation to the facts of this case, the panel does not conclude that Baylor lacked institutional control as contemplated by NCAA Constitution 2 and 6.
Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4.
Aggravating Factors for the Institution
19.9.3-(b): A history of Level I, Level II or major violations by the institution;
19.9.4-(g): Multiple Level II violations by the institution; and
19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation
or related wrongful conduct.
Mitigating Factors for the Institution
19.9.4-(d): An established history of self-reporting Level III or secondary violations.
Aggravating Factors for the Assistant Operations Director
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.
Mitigating Factors for the Assistant Operations Director
19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations by the assistant operations director.
The Committee penalized BU as follows: