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 Oklahoma State University (“OSU” or “Oklahoma State” or “Institution”).   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 OSU, who was involved in the bribery scheme to sell access to student-athletes. Additionally, following his separation from Oklahoma State, the associate head coach failed to cooperate with the investigation in this matter.

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

 Violations of NCAA Division I Manual 10.1-(e) (2015-16); 10.1-(d) (2016-17 through 2017-18); 10.01.1, 10.1 and 11.1.3 (2015-16 through 2017-18); and 10.1-(b) and 16.11.2.1 (2017-18)

During his brief year-and-a-half employment at Oklahoma State, the associate head coach accepted cash bribes from financial advisors in exchange for his agreement to steer NBA-bound student-athletes toward the advisors’ services. He also knowingly provided impermissible benefits in the form of cash gifts to a men’s basketball student-athlete. Oklahoma State substantially agreed to the facts and agreed that those facts constituted violations of ethical conduct and benefits legislation. However, the Institution disagreed that the associate head coach’s conduct violated NCAA legislation prohibiting athletics staff members from representing individuals in the marketing of their athletics ability or reputation. Oklahoma State agreed that any violations should be Level I for the associate head coach, but argued that the Institution should be held accountable only for Level II violations. The associate head coach did not respond to the allegations. Pursuant to Bylaw 19.7.8.3.4, the Panel may view a party’s failure to respond to an allegation as an admission that the violation occurred. The Panel concludes that the violations occurred, and they are Level I for both the associate head coach and the institution.

From April 2016 through July 2017, the associate head coach participated in a bribery scheme with two financial advisors who wanted access to elite men’s basketball student-athletes. The advisors provided the associate head coach with a steady flow of cash—ultimately totaling between approximately $18,150.00 and $22,000.00—and in exchange, he provided access by arranging for them to meet with one student-athlete and the mother of another. In August and September of 2017, he also provided one of the student-athletes with cash gifts totaling $300.00. The associate head coach’s conduct constituted Level I violations of Bylaws 10, 11 and 16.

Bylaw 10 governs ethical conduct in collegiate athletics, with Bylaw 10.01.1 generally requiring student-athletes and athletics staff to act with honesty and sportsmanship at all times. Bylaw 10.1 identifies several categories of unethical conduct, including the receipt of benefits by an institutional staff member for facilitating or arranging a meeting between a student-athlete and an agent, financial advisor or representative of an agent or financial advisor (Bylaw 10.1-(d)). Additionally, the bylaw identifies that it is unethical conduct for an institutional staff member to knowingly provide a student-athlete with an extra benefit (Bylaw 10.1-(b)). Bylaw 11 governs the conduct of athletics personnel. Under Bylaw 11.1.3, athletics department staff members are prohibited 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. Finally, Bylaw 16.11.2.1 sets forth the general rule prohibiting extra benefits, which the bylaw defines as any special arrangement by an institutional employee to provide a student-athlete or his or her family members or friends with a benefit not expressly authorized by NCAA legislation.

The Panel found that the associate head coach’s actions establish a clear and egregious violation of the membership’s ethical conduct standards for coaches. The associate head coach accepted between approximately $18,150.00 and $22,000.00 in cash bribes from two financial advisors. In return, he used his position of trust as a coach and mentor to influence certain men’s basketball student-athletes to retain the advisors’ services when the student-athletes entered the NBA. He arranged two meetings for this purpose—one between advisor 1 and the OSU student-athlete, and another between advisor 2 and the non-OSU student-athlete’s mother. He later provided the OSU student-athlete with cash gifts of $100.00 on three separate occasions. These facts are not disputed by Oklahoma State, and the associate head coach pled guilty in federal court to participating in the bribery scheme. When the associate head coach accepted bribes from the financial advisors in exchange for arranging meetings with the OSU student-athlete and the non-OSU student-athlete’s mother, he violated Bylaws 10.01.1, 10.1 and 10.1-(d). When he knowingly provided the OSU student-athlete with extra benefits in the form of cash gifts, he violated Bylaws 10.1-(b) and 16.11.2.1.

Pursuant to Bylaw 19.7.8.2 and COI Internal Operating Procedure (IOP) 5-9-4, the Panel requested interpretive guidance from the AMA staff regarding the application of Bylaw 11.1.3 to the facts of this case. The Panel sought this guidance because it was concerned whether the bylaw would apply where the associate head coach appeared to be marketing the abilities of the financial advisors to the student-athletes rather than marketing the abilities of the student-athletes to the financial advisors. Furthermore, no recent cases have involved Bylaw 11.1.3, and the Panel recognized that any application of the bylaw in this case could have potential impacts for future cases. Accordingly, the Panel requested interpretive guidance to ensure that its decision would not fall outside the reasonable scope of the legislation.

On April 7, 2020, the AMA staff provided a response to the Panel’s interpretation request, in which the staff determined that the facts framed by the Panel established a violation of Bylaw 11.1.3. Specifically, the AMA staff stated that an athletics staff member directly or indirectly represents a student-athlete in the marketing of their athletics ability or reputation when the staff member arranges a meeting between a financial advisor and student-athlete for the purpose of influencing the student-athlete to retain the advisor’s services. The AMA staff noted that because the associate head coach selected OSU and non-OSU student-athletes for their NBA potential, he was representing them in marketing their athletics ability or reputation for purposes of the bylaw.

Oklahoma State appealed the AMA staff’s response to the Interpretations Committee. On May 15, 2020, the Interpretations Committee summarily affirmed the staff’s position with respect to Bylaw 11.1.3. Where the operative facts remain the same, COI is bound by interpretations issued pursuant to COI IOP 5-9-4. Thus, the Panel concluded that the associate head coach violated Bylaw 11.1.3 when he arranged for the financial advisors to meet with an OSU student-athlete and a non-OSU student-athlete’s mother for the purpose of influencing the student-athletes to retain the advisors’ services.

The associate head coach’s conduct has no place in collegiate athletics. Coaches are entrusted to look after the well-being and best interests of their student-athletes, including during the critical time when student-athletes are making decisions regarding their professional careers. As the associate head coach admitted at his sentencing hearing, he abused this trust for his own personal gain. He sold access to student-athletes and used his position as a coach and mentor to steer them toward a career decision—retaining the financial advisors’ services—that would financially benefit him. In short, he placed his interests ahead of theirs.

The associate head coach’s actions had at least three significant ripple effects at Oklahoma State. First, he exposed the institution to NCAA violations and penalties. Second, he put the OSU student-athlete’s eligibility at risk when he arranged the meeting with advisor 1—and later did render the student-athlete ineligible when he gave him $300.00 cash. Finally, he involved the video coordinator in the scheme by deceiving him into providing his bank account information for the wire transfers.

Pursuant to Bylaw 19.1.1, the unethical conduct, impermissible benefits and representation violations are collectively Level I because they seriously undermined or threatened the integrity of the Collegiate Model, provided a substantial or extensive impermissible benefit to a staff member, and involved individual unethical conduct and intentional violations. COI has previously concluded that Level I violations occurred where individuals engaged in unethical conduct or other violations in a manner that abused a position of trust. See University of Southern Mississippi (2016) (concluding Level I unethical conduct violations occurred where the former head men’s basketball coach orchestrated and carried out an academic misconduct scheme involving multiple members of his staff and seven prospects) and Georgia Institute of Technology (Georgia Tech) (2019) (concluding that a former assistant men’s basketball coach engaged in Level I recruiting violations and abused his position of trust when he orchestrated inducements and benefits from a notable booster—including a trip to the booster’s house and a strip club—during a highly touted prospect’s official visit). Consistent with this case guidance and Bylaw 19.1.1, the unethical conduct, benefits and representation violations here are also Level I.

In its written submission and at the infractions hearing, Oklahoma State argued that it should not be held responsible at the same level as the associate head coach. Specifically, Oklahoma State asserted that the violations and overall case should be Level II for the institution because the associate head coach acted in his own self-interest and outside his assigned work responsibilities at all times, and his conduct did not provide the Institution with a significant competitive or recruiting advantage. The Panel did not accept this argument.

Institutions are responsible for the conduct of their employees. Constitution 2.1.2 states that “the institution’s responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members. . . .” And pursuant to Constitution 2.8.1, “[m]embers of an institution’s staff . . . shall comply with the applicable Association rules, and the member institution shall be responsible for such compliance.” These foundational provisions reflect the membership’s understanding that institutions do not act through brick and mortar buildings; they act through their employees and representatives. Thus, when an individual commits a violation while employed at an institution, the violation is attributable to both the individual and the institution. Simply put, the Institution owns the conduct.

Moreover, the Institution is responsible at the same level as the individual employee because the level of the violation attaches to the conduct, not to the actor. Bylaws 19.1.1, 19.1.2 and 19.1.3 define Level I, II and III violations based on the nature and severity of the conduct. It is through the application of party-specific aggravating and mitigating factors that the COI differentiates between institutions and individuals, classifies the case for each party and determines whether the party is subject to a higher or lower penalty range. See Bylaw 19.9.2.

The COI has assigned case level consistent with this structure since the time it was implemented, and no previous cases support the result Oklahoma State seeks. The Institution relies on only one case, University of Alabama (2017), in which the COI assigned different case levels for the institution and an assistant football coach. However, this case does not support Oklahoma State’s position because it was processed as a summary disposition and involved violations of a different nature. With respect to the former, COI IOP 4-10-2-2 establishes that summary disposition decisions are less instructive than decisions reached after a contested hearing because they constitute the parties’ agreements. In other words, they are not decisions reached after a full vetting of the case record and party positions.

Even if instructive, however, Alabama involved violations of a different nature than those at issue here. In Alabama, the assistant football coach engaged in two violations while he was employed at the institution: (1) a Level II recruiting violation and (2) a Level I unethical conduct violation for providing false and misleading information during an interview with the enforcement staff.

The Level I unethical conduct was a derivative violation that stemmed from the investigation of the underlying recruiting violation. Thus, the parties agreed that the institution should be held responsible at the level of the underlying recruiting violation, i.e., Level II. Although COI accepted this agreement, it does not now speculate as to how the case would have been resolved if presented as a contested case rather than a summary disposition.

Here, the underlying violation is the unethical conduct—specifically, the associate head coach’s acceptance of cash bribes in exchange for arranging meetings—as well as the representation and benefits violations. Oklahoma State is therefore responsible for this conduct at the same level as the associate head coach—Level I.

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 Oklahoma State, 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 and provide information relevant to an 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 June 2019, the associate head coach failed to meet his obligation under NCAA bylaws to cooperate with the investigation. On three separate occasions, he ignored requests from the enforcement staff to participate in an interview, which hindered the investigation. His conduct violated Bylaws 10 and 19.

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 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 cooperate fully with the NCAA enforcement staff.

The associate head coach failed to meet his obligation under these bylaws. Beginning in June 2019, the associate head coach failed to cooperate with the investigation and processing of this case. The NCAA enforcement staff contacted him on three occasions to request an interview, but he declined to respond. He had a further opportunity to cooperate when his new attorney briefly re-engaged with the infractions process in December 2019 and January 2020. However, he ultimately failed to participate, provide information and respond to the allegations.

The cooperative principle is a core tenet on which the entire infractions process depends. 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 University of Louisville (2017) (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 Louisville (concluding the former director of basketball operations committed Level I ethical conduct and cooperation violations when he refused to participate in interviews, respond to the allegations and participate in the infractions hearing) and University of Northern Colorado (2017) (concluding an assistant men’s basketball coach who paid for prospects’ online summer courses committed Level I ethical 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 and past case guidance, the panel concludes that the associate head coach’s conduct constitutes a Level I violation.

Violations Not Demonstrated

 The Notice of Allegations also alleged that the associate head coach’s acceptance of bribes from financial advisors violated Bylaw 11 legislation that prohibits outside sources from supplementing athletics staff members’ pay. Oklahoma State disagreed that this conduct violated supplemental pay legislation. After seeking guidance through the membership’s interpretive process, the Panel concluded that the facts do not support a supplemental pay violation due to the lack of direct connection between the associate head coach’s job responsibilities and the purpose and source of the bribes.

Bylaw 11.3.2.2 governs supplemental pay. Specifically, the bylaw prohibits an outside source from paying or regularly supplementing an athletics department staff member’s annual salary or from arranging to supplement that salary for an unspecified achievement.

No previous cases or interpretations involving this bylaw have deemed a staff member’s acceptance of bribe payments to be supplemental pay. Nor have they involved scenarios where the individual providing the money had no affiliation with the staff member’s institution. Rather, supplemental pay cases have generally involved payments from boosters to athletics staff—particularly to cover staff members’ living expenses—or from head coaches supplementing the pay of their staff members. See Syracuse University (2015) (concluding a supplemental pay violation occurred when a booster paid one month’s rent for a men’s basketball administrative assistant) and Tulane University (1991) (concluding a supplemental pay violation occurred when a head men’s tennis coach provided salary supplements of $500.00 and $1,000.00 to two part-time coaches). Thus, due to the seemingly novel application of this bylaw—and recognizing potential implications for future cases—the hearing panel sought interpretive guidance from the AMA staff to ensure its decision would not fall outside the reasonable scope of the legislation.

On April 7, 2020, the AMA staff issued its interpretive response stating that the facts presented by the Panel demonstrated a supplemental pay violation under Bylaw 11.3.2.2. Specifically, the AMA staff stated that a supplemental pay violation occurs when an athletics staff member receives cash bribes from a financial advisor who has no affiliation with the staff member’s institution. The staff noted that the bylaw only permits an outside source to donate funds to the institution to be used as determined by the institution in accordance with its policies. Here, the AMA staff determined that the direct payment to a specific staff member by an outside source is not permissible.

On appeal, however, the Interpretations Committee disagreed with the staff’s position, stating the following:

The Interpretations Committee determined that Bylaw 11.3.2.2 does not apply under these circumstances, as the payments were from sources with no affiliation with the institution and unrelated to the coach’s employment responsibilities with the institution. Such payment would be considered outside athletically related income rather than supplemental pay.

Accordingly, the Interpretations Committee reversed the AMA staff’s interpretive response with respect to the supplemental pay issue.

As stated previously, COI is bound by interpretations issued pursuant to COI IOP 5-9-4. Therefore, the Panel concluded that the financial advisors’ bribe payments to the associate head coach did not constitute supplemental pay in violation of Bylaw 11.3.2.2. As the Interpretations Committee noted, the financial advisors had no connection to Oklahoma State. Furthermore, the bribes were intended to personally benefit the associate head coach so that he would steer student-athletes to the advisors; they were not intended to benefit the institution or the men’s basketball program. Thus, with no direct connection to the associate head coach’s employment responsibilities, these bribe payments are not supplemental pay.

The Panel noted that other legislation may be applicable to this type of conduct. For example, the Interpretations Committee observed that the bribe payments could be considered athletically related outside income. The membership has amended the reporting requirements related to outside income twice since the violations in this case began, and it is not clear which version of the legislation the Interpretations Committee was considering when it made this statement. See Bylaws 11.2.2, 11.3.2.1 and 11.3.2.1.1. However, the Panel needed not resolve this issue here, as no outside income violation was alleged. Indeed, the outcome of the post-hearing interpretive process in this case demonstrates the challenges that arise when interpretive issues are not identified and resolved prior to the issuance of an NOA. Particularly in light of the 60-day stay, which provided additional time for the parties, addressing these issues on the front end of this case would have enabled more efficient resolution by the COI.

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

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-(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 head track coach.

The Committee penalized OSU as follows:

1. Public reprimand and censure.
2. Probation: Three years of probation from June 5, 2020, through June 4, 2023.
3. Financial Penalty: OSU shall pay to the NCAA a fine of $10,000 plus one percent of the budget for the men’s basketball program.
4. Competition penalty: During the 2020-21 academic year, the men’s basketball program shall end its season with the last regular-season contest and shall not participate in postseason conference or NCAA tournament competition. In accordance with Bylaw 14.7.2-(c), the COI recommends that the NCAA Division I Committee for Legislative Relief waive the one-year residency requirement for transferring student-athletes whose institution was placed on probation which included a postseason ban penalty.
5. Scholarship reductions: Oklahoma State shall reduce by three the total number of grants-in-aid awarded in men’s basketball during the 2020-21 through 2022-23 academic years.
6. Recruiting restrictions: (a) Oklahoma State reduced the number of official visits in men’s basketball to 25 during the 2018-19/2019-20 rolling two-year period (a reduction of three off the permissible number) and to 18 during the 2019-20/2020-21 rolling two-year period (a reduction of 10 off the permissible number); (b) Oklahoma State shall prohibit unofficial visits in men’s basketball for two weeks during the fall of 2020 and two weeks during the fall of 2021. (Self-imposed.) Because the Figure 19-1 penalty guidelines require a seven- to thirteen-week ban on official visits for Level I-Standard violations, the institution shall prohibit unofficial visits in men’s basketball for a total of three additional weeks during the fall of 2020, 2021 and/or 2022; (c) Oklahoma State shall prohibit telephonic recruiting communication in men’s basketball for a one-week period during the 2020-21 academic year. Because the Figure 19-1 penalty guidelines require a seven- to thirteen-week ban on recruiting communications for Level I-Standard violations, the institution shall prohibit telephonic recruiting communication in men’s basketball for a total of six additional weeks during the term of probation; and (d) Oklahoma State reduced the number of recruiting person days in men’s basketball by 12 during the 2019-20 academic year. Because the Figure 19-1 penalty guidelines require a 17- to 33-day reduction in recruiting-person days for Level I-Standard violations, the institution shall reduce the number of recruiting-person days in men’s basketball by five during the 2020-21 academic year.
7. Show-cause order: The associate head coach engaged in unethical conduct when he accepted bribes in exchange for arranging meetings between student-athletes and financial advisors, knowingly provided impermissible cash benefits to a student-athlete and failed to cooperate with the enforcement staff’s investigation. His conduct also violated NCAA legislation prohibiting athletics staff members from representing individuals in marketing their athletics ability or reputation. Therefore, the associate head coach shall be subject to a 10-year show-cause order from June 5, 2020, through June 4, 2030. Pursuant to COI IOP 5-15-3-1, if the associate head coach seeks employment or affiliation with any athletically related position at an NCAA member institution during the 10-year show-cause period, any employing institution shall be required to contact the Office of the Committees on Infractions (OCOI) to make arrangements to show cause why restrictions on all athletically related activity should not apply.
8. Oklahoma State shall prohibit the men’s basketball staff from participating in off-campus evaluations for three consecutive days during the summer evaluation periods in 2020.

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