The NCAA Committee on Infractions (“Committee”) recently issued its findings and found that Oklahoma State University (“OSU”) committed violations of NCAA legislation. This case involved OSU’s failure to comply with its drug testing policy and the football program’s impermissible use of a gender-based student hosting group, the Orange Pride, to assist in football recruiting activities at OSU.
With regard to the violations, OSU and the NCAA enforcement staff substantially agreed OSU failed to comply with its established drug testing policy and failed to comply with established NCAA recruiting legislation. Specifically, they agreed OSU permitted five football student-athletes to participate in competition when they should have been withheld from competition because they failed institutional drug tests. OSU also agreed the operation of its Orange Pride program violated NCAA recruiting legislation when it organized the student group under the direction of the football program. OSU and the enforcement staff disagreed whether OSU failed to monitor its drug testing policy and Orange Pride program. The Committee concluded the institution did not fail to monitor.
The Committee determined that the case should move forward under a Level II standard and found the following violations of NCAA legislation:
Violations of NCAA Bylaws 10.2, 14.01.3, and 184.108.40.206(e)
OSU violated NCAA legislation when it failed to comply with its drug testing policy and procedures after five football student-athletes tested positive for NCAA banned substances between the 2007–08 and 2012–13 academic years. As a result, five student-athletes competed in a total of seven games when they should have been withheld from competition. While a significant competitive advantage did not result from the OSU’s violations of the drug testing policy, its actions resulted in more than a minimal competitive advantage and involved conduct that could have undermined or threatened the integrity of the NCAA Collegiate Model. Accordingly, the institution violated NCAA Bylaws 10.2 and 14.01.3.
NCAA Bylaw 10.2 requires member institutions to abide by their institutional policy and procedures dealing with drug use. The bylaw requires athletics personnel with knowledge of a student-athlete’s use of a banned substance to comply with the institution’s drug testing policy. Here, the director of athletics, as program administrator, deviated from OSU’s established drug testing policy when he permitted four football student-athletes to participate in intercollegiate athletics competition without subjecting them to the requirements of the 2007–08 version of the drug testing policy. The director of athletics mistakenly believed he had discretion to deviate from the institution’s drug testing policy when, in fact, he had no such discretion under the 2007–08 version of the policy. After OSU revised the drug testing policy for the 2011–12 academic year, the director of athletics was given discretion to deviate from the policy upon a second and third positive test by a student-athlete. However, even after the revision to the drug testing policy allowing greater discretion, one student-athlete who tested positive for a banned substance was allowed to compete without receiving a mandatory counseling session in violation of OSU’s revised drug testing policy. At the hearing, OSU acknowledged that it violated NCAA Bylaw 10.2.
When OSU permitted five football student-athletes to participate in intercollegiate athletics competition in violation of its own drug testing policy, it violated NCAA Bylaw 10.2.7. In so doing, OSU also violated NCAA Bylaw 14.01.3 because the five student-athletes were not in compliance with the institution’s drug testing policy. While a member institution is not required to have a drug testing policy, NCAA legislation does require that an institution follow its drug testing policy if it does have one. The Committee expects member institutions and their athletics staff to adhere to their respective drug testing policies and procedures in order to protect and enhance student-athlete well-being.
After receiving information presented at the hearing on the issue of level of violation, the Committee considered the number of student-athletes involved, the duration of the violations, the number of instances when student-athletes competed while they should have been suspended under OSU’s drug testing policy, and the deliberate determinations of institutional staff to deviate from the institution’s drug testing policy. The Committee concluded the facts found constituted Level II violations of NCAA bylaws because the violations provided more than a minimal competitive advantage not rising to the level of Level I violations but were more serious than Level III violations.
Violations of NCAA Bylaws 220.127.116.11.7 (2004-05 through 2010-11 Manual) and 18.104.22.168.8 (2011-12 through 2013-14 Manual)
OSU permitted Orange Pride members to engage in hosting activities, despite being on notice that such use was impermissible, it violated NCAA Bylaw 13. From the 2009–10 through the 2012–13 academic years OSU acknowledged it permitted its football program to select, organize and direct the Orange Pride student group while it engaged in impermissible hosting activities in violation of NCAA recruiting legislation. Generally, NCAA Bylaws 22.214.171.124 and 126.96.36.199.8 govern the use of student hosts on official and unofficial visits. Both bylaws prohibit the use of student hosts in a manner inconsistent with the institution’s policies on providing campus tours or visits to prospective students in general.
Both NCAA Bylaw 188.8.131.52, regarding official visits, and NCAA Bylaw 184.108.40.206.8, regarding unofficial visits, require student hosts to be either a current student-athlete or a student who is designated in a manner consistent with the institution’s policies for providing campus tours or visits to prospective students in general. The Orange Pride members were neither student-athletes nor students properly designated consistent with the institution’s policy for providing campus tours to prospective students in general.
The Orange Pride was a group of all-female students selected, organized, and directed by the institution’s football staff. The group was in existence for over 15 years. During the relevant time period, Orange Pride members served as student hosts during official and unofficial visits of prospective football student-athletes. They did so even though they were not designated and directed by the admissions office, the office responsible for providing campus tours to prospective students in general. It is uncontested that Orange Pride members were present during on-campus and some off-campus meals to converse and answer questions from prospective student-athletes and their families. They also accompanied football staff members during campus tours and spoke with prospective student-athletes and their families in a non-administrative capacity during these visits to the institution’s campus.
The way OSU operated and used the Orange Pride program violated NCAA recruiting legislation. The panel was especially concerned with the OSU’s continued use of the group despite being on notice for several years that such use of gender-based student hosting groups was impermissible. The NCAA published educational columns in 2004, 2010 and 2012, placing all member institutions on notice regarding the most current legislation on the proper use of student hosts. The educational columns cite and are based on NCAA Bylaws 220.127.116.11 and 18.104.22.168.8, among others, and their official and staff interpretations. These educational columns were made public and widely circulated among NCAA membership and utilized by institutional compliance staff. OSU’s use of the Orange Pride was contrary to NCAA recruiting legislation. Yet, OSU continued the program until a published media report prompted a joint investigation by OSU and the enforcement staff. Although occurring for a longer period of time, the violations are confined to the 2009–10 to 2012–13 academic years under NCAA Bylaw 19.5.11’s four-year statute of limitations. No exceptions to the statute of limitations period were present in this case.
Moreover, in response to the enforcement staff’s and OSU’s joint interpretation request, AMA stated that NCAA legislation never intended for athletic departments to be involved in the hiring process of general student hosts, regardless of the nature of the hiring standards. While OSU did use the Orange Pride members to perform some administrative tasks, it was clear that the impermissible hosting functions that the group performed were widespread over a long period of time. As a result, from 2009 through 2013, the Orange Pride performed hosting duties for prospective football student-athletes (or their parents or legal guardians) contrary to NCAA recruiting legislation.
The Committee concluded the facts as found constituted Level II violations of NCAA bylaws because they provided or were intended to provide more than a minimal but less than a substantial recruiting advantage.
Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.2 and 19.9.4.
Level II violations, representing an institution’s significant breach of conduct, includes one or more violations that provide or are intended to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage or impermissible benefit. Level II violations are more serious than Level III and yet do not rise to the level of Level I. They include systematic violations that do not amount to a lack of institutional control or collective Level III violations.
OSU Aggravating Factors were as follows: multiple Level II violations (NCAA Bylaw 19.9.3(g)); and persons of authority condoned, participated in or negligently disregarded the violation or related conduct (NCAA Bylaw 19.9.3(h)).
OSU Mitigating Factors were as follows: affirmative steps to expedite final resolution of the matter (NCAA Bylaw 19.9.4-(c)); an established history of self-reporting Level III or secondary violations (NCAA Bylaw 19.9.4-(d)); implementation of a system of compliance methods designed to ensure rules compliance and satisfaction of institutional control/coaches’ control standards (NCAA Bylaw 19.9.4(e)); and exemplary cooperation (NCAA Bylaw 19.9.4(f)).
As a result of the aforementioned violations, the Committee penalized OSU as follows:
1. Public reprimand and censure.
2. One year of probation from April 24, 2015, to April 23, 2016.
3. OSU shall pay a financial penalty of $5,000.00.
4. OSU shall pay a $3,500.00 fine, representing $500.00 for each of seven games in which a student-athlete participated in intercollegiate athletics when he should have been withheld from competition in accordance with the institution’s drug testing policy.
5. OSU shall limit official visits to 30 per year during the 2015-16 and 2016-17 academic years. The institution shall also reduce the number of coaches participating in off-campus evaluations by one (from 10 to nine in the fall and nine to eight in the spring) during the 2015-16 and 2016-17 academic years. The institution shall also reduce the number of evaluation days in the fall by 10 days and in the spring by 10 days during the 2015-16 and 2016-17 academic years.
6. OSU and its football program shall cease any and all use of the Orange Pride program. The institution is precluded from organizing any other student group to assist in recruiting prospective student-athletes for four years. When the four-year time period has expired, the institution shall not reconstitute a student host group within athletics, but must do so out of its admissions office consistent with how it provides campus tours or visits to prospective students in general.