The NCAA Division I Committee on Infractions (“COI” or “Committee”) is an independent administrative body of the NCAA comprised of individuals from the Division I membership and public. COI decides infractions cases involving member institutions and their staffs. This case involved recruiting and coaching activity violations in the men’s basketball program at DePaul University (“DePaul” or “DU”) that stemmed from the former associate head men’s basketball coach’s (associate head coach’s) ethical conduct violation. The head men’s basketball coach also violated head coach responsibility legislation.

The Committee concluded DU committed the following violations of NCAA rules:

Violations of NCAA Division I Manual Bylaws 10.01.1, 10.1, 10.1-(c), 11.7.6, 12.11.1, 13.1.2.1, 13.1.2.5, 13.2.1, 13.2.1.1-(k), 13.15.1.9 and 16.8.1 (2015-16)

In the spring of 2016, the associate head coach knowingly arranged for the assistant DOBO to monitor the prospect to ensure that he met initial-eligibility requirements. The arrangement resulted in recruiting, coaching activity, and competition and expenses violations. DePaul only disputed the recruiting benefits allegation. The associate head coach agreed that he violated ethical conduct legislation. The panel concluded that DePaul and the associate head coach committed Level II violations.

The associate head coach directed the assistant DOBO to travel to and live with the prospect to monitor his completion of coursework. While living with the prospect in late-April and early-May of 2016, the assistant DOBO had impermissible recruiting contact that caused him to become a countable coach. The prospect also competed and received expenses while ineligible. The associate head coach’s conduct violated Bylaw 10 while the recruiting benefits and contact violated Bylaw 13. The additional countable coach, provision of expenses to the prospect after his enrollment at DePaul, and ineligible competition violated Bylaws 11, 16 and 12, respectively.

Bylaw 10 requires staff members to conduct themselves in an ethical manner. In accordance with Bylaw 10.1-(c), staff members must not knowingly involve themselves in offering or providing a prospect with an improper inducement. Bylaw 13 governs recruiting and, through Bylaw 13.2.1, prohibits staff members from giving benefits to a prospect that are not generally available to other prospects. Bylaws 13.2.1.1-(k) and 13.15.1.9 specifically prohibit expenses for academic services to assist a prospect in completing initial-eligibility requirements. Bylaws 13.1.2.1 and 13.1.2.5 also provide that only authorized staff members may recruit off campus. Related to these bylaws, Bylaw 11.7.6 limits men’s basketball programs to four coaches. Bylaw 16.8.1 permits institutions to provide expenses to eligible student-athletes who represent the institution in practice and competition. Institutions, however, must withhold ineligible student-athletes from competition pursuant to Bylaw 12.11.1.

In need of size on the team, the associate head coach was concerned that the prospect—who had just signed an NLI—would not meet initial-eligibility requirements. He thus knowingly arranged for the assistant DOBO to travel to the prospect’s home and live with him to monitor the completion of his core coursework. The assistant DOBO helped the prospect for 12 days by identifying and planning for completion of his coursework, monitoring his progress, limiting extracurricular activities and ensuring he took tests. This assistance allowed the prospect to dedicate the appropriate time for coursework. As a result, the prospect met initial-eligibility requirements. The prospect then competed and received expenses while ineligible because of the benefits. The associate head coach’s intentional conduct violated Bylaws 10.01.1, 10.1 and 10.1-(c). The benefits provided by the assistant DOBO violated Bylaws 13.2.1, 13.2.1.1-(k) and 13.15.1.9. The ineligible competition and expenses resulting from the benefits violated Bylaws 12.11.1 and 16.8.1.1.

The assistant DOBO impermissibly contacted the prospect during his stay with the prospect because he was a noncoaching staff member with sport-specific responsibilities and not certified to recruit off campus. As a result of the contact, the assistant DOBO became a countable coach and DePaul exceeded the limitation of four men’s basketball coaches. DePaul thus also violated Bylaws 13.1.2.1, 13.1.2.5 and 11.7.6.

DePaul only disputed that impermissible recruiting benefits occurred. The institution argued that the assistant DOBO did not give the prospect impermissible benefits because he did not actually complete the prospect’s coursework. This, however, is irrelevant. The completion of coursework is not necessary for impermissible benefits to occur when an institution—as a recruiting inducement—provides expenses for academic services to help a prospect meet initial-eligibility requirements. See St. John‘s University (New York) (2018) (concluding that an impermissible recruiting benefit occurred when the head women’s volleyball coach provided round-trip transportation for a prospect to take the SAT); University of Mississippi (2017) (concluding that impermissible recruiting benefits occurred when the football operations coordinator and assistant football coach arranged for a booster to provide housing, meals and transportation for prospects so that they could attend classes); and Radford University (2012) (concluding that impermissible recruiting benefits occurred when the head men’s basketball coach indirectly arranged round-trip transportation for a prospect to take the SAT and ACT). Like in these cases, consistent with the bylaws, recruiting benefits violations occurred when the assistant DOBO monitored the prospect to ensure that he completed coursework necessary to be eligible to compete.

In accordance with Bylaw 19.1.2, the violations are Level II because they provided more than minimal but less than substantial or extensive advantages and benefits. The benefits occurred for nearly two weeks and allowed the prospect to be immediately eligible to compete. Likewise, had the prospect paid for the assistance he received from the assistant DOBO, the significant number of hours the assistant DOBO spent with the prospect would have resulted in more than a minimal expense. The assistant DOBO’s time with the prospect also allowed DePaul’s countable coaches to engage in other coaching activities, such as on- or off-campus recruiting.

The panel considered whether the violations rose to Level I. The circumstances in this case, however, more closely follow recent cases in which the COI concluded that Level II violations occurred when coaches knowingly violated legislation to help a student-athlete meet eligibility requirements. See Prairie View A&M University (2017) (concluding that an assistant men’s basketball coach violated ethical conduct legislation when he knowingly arranged for a friend to pay approximately $500 for an online course a student-athlete needed to regain eligibility, which resulted in ineligible competition and expenses) and Florida International University (2017) (concluding that the head women’s basketball coach violated ethical conduct legislation when he knowingly provided $600 in cash to a student-athlete to enroll in a course needed for continuing eligibility, which resulted in ineligible competition and expenses). Like in these cases, the violations resulted in more than minimal but less than substantial advantages and benefits.

 Violations of NCAA Division I Manual Bylaws 11.1.1.1 (2015-16)

The head coach failed to promote an atmosphere of compliance and monitor his staff. DePaul and the head coach disputed the allegation. The panel concluded that the head coach committed a Level II violation.

The head coach did not meet his legislated head coach responsibilities. He did not promote an atmosphere of compliance when multiple men’s basketball staff members failed to report the arrangement for the assistant DOBO to live with the prospect. The head coach also failed to monitor his staff when he did not track on the assistant DOBO’s prolonged absence. The head coach’s conduct violated Bylaw 11.

Bylaw 11.1.1.1 establishes two affirmative duties for head coaches: (1) to promote an atmosphere of compliance; and (2) to monitor individuals in their program who report to them. The bylaw presumes that head coaches are responsible for the actions of their staff members. A head coach may rebut this presumption by demonstrating that he or she promoted an atmosphere of compliance and monitored his or her staff.

The head coach failed to promote an atmosphere of compliance because three staff members knew that the associate head coach sent the assistant DOBO to live with the prospect but did not report the violation or question its permissibility. Although he was not sure whether the arrangement was permissible, the assistant coach took no action beyond telling the assistant DOBO to check with the head coach and associate head coach. Even more troubling, the DOBO knew that the contact was a violation but did not report it because he did not want to be disloyal, cause tension, get in the way of the associate head coach or otherwise hurt his career. He also did not know the process for reporting violations. Finally, the associate head coach’s desire to keep the arrangement confidential should have alerted the assistant DOBO to report the arrangement. But he did nothing because he was concerned for his future, wanted to “stay in his lane” and was afraid of the associate head coach. This culture of silence pervaded the program.

Ensuring that staff members are comfortable reporting, or know how to report, violations is fundamental to any compliance program. Even with a staff member—a determined wrongdoer as described by DePaul—intentionally violating legislation and exercising his authority to demand things his way, there were numerous opportunities for other staff members to stop or prevent the violations. But the head coach was detached. He was unaware that staff members were afraid to report violations or ask questions and did not recognize the associate head coach’s undue influence over staff members. This in and of itself demonstrates a lack of head coach control.

The head coach also failed to monitor his staff. He did not confer with staff members, actively look for red flags or otherwise ask questions about the assistant DOBO’s roughly two-week absence. Instead, the head coach trusted that the assistant DOBO’s unannounced absence was for the right reasons. Head coaches must verify—not just trust—that staff members comply with legislation. 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 while the head coach was away) and California State University, Sacramento (2018) (concluding that the head men’s tennis coach did not meet his monitoring responsibility when he failed to supervise his assistant coach’s recruiting efforts and involvement in arranging housing for student-athletes). Lack of knowledge is not an excuse. See Southern Methodist University (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). Here, had the head coach checked in with the assistant DOBO or asked appropriate questions, he may have stopped or prevented the violations.

The head coach largely relied on his track record to argue that he rebutted the presumption. At the hearing, he pointed to several examples of how he purported to promote compliance. These included his participation in an NCAA ethics coalition, required staff attendance at compliance meetings and communication with the compliance staff to report violations or ask for advice. The panel recognizes these and other efforts but the head coach needed to do more. He created an environment where staff members did not report violations or consult with the compliance staff but chose to remain silent. The head coach did not ensure that one of these staff members knew the process for reporting violations. Likewise, the head coach did not track on the assistant DOBO’s prolonged absence from the office. He thus failed to meet his responsibility to promote an atmosphere of compliance and monitor staff in accordance with Bylaw 11.1.1.1.

This case is different than those in which the COI concluded that the head coach rebutted his presumed responsibility. In University of the Pacific (2017), a legitimate misunderstanding between the head baseball coach and an associate athletics director caused the violation at issue. The COI concluded that the head coach rebutted his presumed responsibility because he promoted an atmosphere of compliance. Likewise, in Wichita State University (2015), the head baseball coach’s administrative assistant provided impermissible benefits to student-athletes when she allowed them to purchase apparel at discounted prices through an institutional account with an apparel provider. The head baseball coach knew that student-athletes were ordering from the account but failed to ask follow-up questions after his administrative assistant misinformed him that the student-athletes were not purchasing the items at a discount. The COI concluded that the head coach’s failure to follow up did not negate decades of monitoring his assistant and setting the proper atmosphere for compliance. Unlike in Pacific and Wichita State, three staff members failed to report violations. In addition, the head coach did not monitor his staff when he did not track on the assistant DOBO’s absence to stay at the prospect’s home. There was no legitimate misunderstanding or decades of monitoring—the head coach simply did not ensure a compliant program.

In accordance with Bylaw 19.1.2-(e), head coach responsibility violations can be Level II when the underlying violations are Level II. The COI has regularly applied the bylaw to Level II head coach responsibility violations. See Oregon (concluding that Level II head coach responsibility violations occurred when the head men’s basketball coach failed to monitor the director of operations’ interactions with student-athletes and the head women’s basketball coach failed to monitor his staff and was personally involved in violations) and University of Utah (2018) (concluding that a Level II head coach responsibility violation occurred when the head baseball coach instructed and permitted his director of operations to engage in impermissible coaching activity). Like in these cases, the head coach responsibility violation is Level II because the underlying violations are Level II.

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;

19.9.3-(f): Violations were premeditated, deliberate or committed after substantial planning;

19.9.3-(g): Multiple Level II violations by the institution;

19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation

or related wrongful conduct; and

19.9.3-(j): Conduct or circumstances demonstrating an abuse of a position of trust.

Mitigating Factors for the Institution

19.9.4-(c): Affirmative steps to expedite final resolution of the matter; and

19.9.4-(d): An established history of self-reporting Level III or secondary violations.

Aggravating Factors for the Head Coach

None.

Mitigating Factors for the Head Coach

19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations by the head coach.

Aggravating Factors for the Associate Head Coach

19.9.3-(e): Unethical conduct;

19.9.3-(f): Violations were premeditated, deliberate or committed after substantial planning;

19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation or related wrongful conduct;

19.9.3-(j): Conduct or circumstances demonstrating an abuse of a position of trust; 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-(b): Prompt acknowledgment of the violation and acceptance of responsibility; and

19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations committed by the associate head coach.

 The Committee penalized DU as follows:

1. Probation: Three years of probation from July 23, 2019, through July 22, 2022.
2. Financial penalty: DePaul shall pay a fine of $5,000 plus one percent of the budget for the men’s basketball program.
3. Recruiting restrictions: a) a reduction of six recruiting-person days from the permissible number of recruiting-person days in men’s basketball during the 2017-18 academic year; and b) a reduction of six recruiting-person days from the available number of recruiting-person days in men’s basketball in April 2019.
4. Head coach restriction: Although not directly participating in the impermissible recruiting benefits, the head coach violated head coach responsibility legislation when he failed to promote an atmosphere of compliance and monitor his staff. Bylaw 19.9.5.5 and the Figure 19-1 penalty guidelines contemplate head coach suspensions to address head coach responsibility violations. Therefore, the head coach shall be suspended from the first three regular season contests of the 2019-20 season.
5. Show-cause order: The associate head coach violated the principle of ethical conduct when he knowingly violated recruiting legislation. Therefore, he shall be subject to a three-year show-cause order from July 23, 2019, to July 22, 2022.
6. Public reprimand and censure through the release of the public infractions decision.
7. Vacation of team and individual records: Ineligible participation in the men’s basketball program occurred as a result of violations in this case. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3 and COI IOP 5-15-6, DePaul shall vacate all regular season and conference tournament records and participation in which the ineligible student-athlete competed from the time he became ineligible through the time he was reinstated as eligible for competition.

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