Biediger v. Quinnipiac University: Cheerleading is Still Not a SportMarch 8, 2013
16th Annual University of Miami Entertainment and Sports Law SymposiumMarch 29, 2013
The NCAA Committee on Infractions (“Committee”) recently issued its findings and found that Saint Mary’s College of California (“SMC”) committed major violations of NCAA legislation. Included in the case were allegations of intentional violations of NCAA bylaws concerning impermissible recruiting inducements provided to prospective student-athletes and unethical conduct on the part of a then assistant men’s basketball coach who later became the director of men’s basketball operations (“former assistant coach”), as well as extra benefits, a failure to promote an atmosphere for compliance and a failure to monitor by the head men’s basketball coach (“head coach”).
The case primarily involves the former assistant coach and head coach. The former assistant coach knowingly committed recruiting violations involving three prospective student-athletes and, in doing so, also violated the NCAA’s principles of ethical conduct. The majority of the former assistant coach’s impermissible recruiting activity centered on an intentional prospective student-athlete being recruited by the institution. The former assistant coach arranged significant inducements to facilitate the recruitment and enrollment of prospective international student-athletes. The inducements for one or more of the prospective international student-athletes included travel, securing host family accommodations, local transportation and assistance in obtaining a student visa.
The former assistant coach’s violations occurred both when he was employed by the institution and subsequent to his departure from the institution in late August 2009. After leaving the employ of SMC, the former assistant coach became a “representative of the institution’s athletics interest” under NCAA legislation because he continued to engage in activity that assisted the institution’s recruitment of a prospective student-athlete.
The head coach’s violations occurred because he knew that impermissible conditioning and practice sessions were conducted by two individuals not employed by the institution. As a result of these violations, the institution violated NCAA legislation relating to playing and practice seasons, extra benefits, and coaching staff limits. The head coach also failed to promote an atmosphere for compliance and failed to monitor relative to the impermissible conditioning and practice sessions, as well as failed to monitor the activity of the former assistant coach.
The Committee found that SMC committed the following violations of NCAA legislation:
1. Impermissible Recruiting Activities in violation of NCAA Bylaws 13.02.14, 13.1, 22.214.171.124.1, 13.2, 13.2.1, 126.96.36.199(b), (g), (h), and 13.5
The impermissible recruiting activities in this case involve providing shoes and apparel, making impermissible telephone calls, and/or providing travel arrangements to three different prospective student-athletes. The former assistant coach engaged in the impermissible recruiting activity as part of his effort to secure the enrollment of the prospective student-athletes at the institution. The enforcement staff and the institution substantially agreed to the facts of this finding and that those facts constituted violations of NCAA legislation.
The former assistant coach had ties to players in France prior to arriving at SMC. As such, he arranged for prospect 1 to attend a high school in California near SMC. On July 2, 2009, the former assistant coach’s employment status changed from that of an assistant coach to director of basketball operations. He was warned by the compliance staff that he could no longer conduct recruiting and coaching activities. In July and August 2009, contrary to these instructions, he placed seven telephone calls to prospect 1’s home in France and had conversations with prospect 1’s parents. These conversations were in conjunction with his efforts to arrange for prospect 1 to live with a host family not far from SMC’s campus. The former assistant coach made arrangements for prospect 1 to live with a host family at no cost to prospect 1.
In late August, the former assistant coach resigned from his employment at SMC. However, the former assistant coach continued to assist prospect 1 in a variety of ways. Specifically, he arranged for prospect 1’s host family to pay for prospect 1’s travel to France, he transported prospect 1 from the Sacramento airport to the host family’s home, and assisted the host family with enrolling prospect 1 in a local high school. The former assistant coach also transported prospect 1 to SMC’s campus for participation in pickup games.
The California Interscholastic Federation (“CIF”) through its commissioner launched an investigation into prospect 1’s enrollment into a local high school. One two occasions, CIF contacted SMC to discuss the activities of former assistant coach placing prospect 1 at the local high school. During these communications, the head coach informed CIF that he had never heard of prospect 1 and the former assistant coach was no longer employed by SMC. Ultimately, the head coach admitted he had heard of prospect 1, but SMC was not recruiting the prospect. SMC did not conduct further review of the allegations.
In addition to prospect 1, the former assistant coach provided assistance to international prospects 2 and 3. He arranged for prospect 2 to take the SAT while in Paris. He also communicated with prospect 3 about attending an American institution and communicated with several high school and two-year college coaches in an apparent effort to place prospect 3 at an American school. The former assistant coach provided his personal financial information in an effort to secure a student visa for prospect 3.
2. Former Assistant Coach’s Unethical Conduct in violation of NCAA Bylaws 10.1 and 10.1(c)
The unethical conduct in this case involved the former assistant coach’s knowing involvement in providing impermissible recruiting inducements as detailed above. The enforcement staff and the institution substantially agreed to the facts of this finding and that those facts constitute violations of NCAA legislation. However, the institution did not believe that the former assistant coach’s actions relative to prospect 2 and the recruiting telephone calls he placed to prospect 1 and his parents rise to the level of unethical conduct. In his written response, the former assistant coach did not address the question of where he engaged in unethical conduct. However, in an October 26, 2012, telephone conversation with the enforcement staff, he denied that he did anything unethical. The former assistant coach took the position even though he did not dispute the underlying facts of the recruiting violations in which he engaged. Rather, he provided mitigating circumstances and reasons why he believed his conduct did not violate NCAA legislation.
3. Impermissible Practice Sessions and Exceeding Countable Coach Limits in violation of NCAA Bylaws 188.8.131.52.1, 184.108.40.206.1.4, 220.127.116.11, 18.104.22.168, 17.02.1, 22.214.171.124.1, 126.96.36.199.1.1, 17.3.6, and 188.8.131.52
During summer vacation periods of 2009 and 2010, a basketball trainer provided skill-related instruction to numerous men’s basketball student-athletes on the institution’s campus. Because these workout sessions with the basketball trainer occurred in institutional facilities and involved skill instruction, he was considered a “countable coach.” Further these sessions with the basketball trainer met the definition of countable athletically related activities which are not permissible during the summer vacation period. Finally, student-athletes did not pay for workout sessions with the basketball trainer in the summer of 2009.
Nine student-athletes participated in sessions with a basketball trainer providing skill instruction in SMC facilities. The majority of student-athletes interviewed reported they participated in the summer 2009 workouts at no cost. Additionally, the student-athletes confirmed that these workouts took place with the coach’s knowledge and acquiesce. Similarly, in summer 2010, student-athletes participated in basketball workouts with the trainer. The student-athletes compensated the trainer for his services, but not until September, October, and November 2010.
In fall 2010, the owner of a local fitness and exercise business began volunteering at SMC in the athletic and recreational sports department, in the area of strength and conditioning. SMC provided the fitness instructor with a letter detailing his volunteer status. The evidence, however, reflected that the fitness trainer was working with the men’s basketball team prior to the date the institution’s human resources department issued the letter. Eight student-athletes indicated that they participated in speed and footwork conditioning drills with the fitness trainer at SMC facilities at no cost.
4. The Head Coach’s Failure to Monitor and Promote an Atmosphere of Compliance in violation of NCAA Bylaw 184.108.40.206
The head coach failed to monitor the activities of the former assistant coach related to the recruitment of prospect 1 both during the period of time the former assistant coach was employed by the institution and following his resignation. Further, the head coach failed to monitor relative to the activities of the basketball trainer.
The facts demonstrate that SMC and the head coach were aware that the former assistant coach had been employed as an associate head coach at a California two-year college that had its basketball program terminated due to improprieties involving housing and tuition payments made on behalf of six French student-athletes. The institution and the head coach knew that prior to joining the staff at SMC, the former assistant coach worked for a Paris-based sports agency. It was through connections with this agency that the former assistant coach began recruiting prospect 1, a French national. The head coach knew, or should have known, the nature of these relationships and the former assistant coach’s prior employment experiences. These were “red flags” for the head coach and should have altered him to the need for heightened vigilance with regard to the former assistant coach’s recruiting activity.
As to aspect two of the charge, the facts demonstrate that the head coach was aware of the activity and occasionally saw the workouts in progress when he arrived for work. Regarding the failure of student-athletes to pay the trainer in 2009, the head coach did not follow-up and ensure that the young men paid the basketball trainer.
5. SMC’s Failure to Monitor in Violation of NCAA Constitution 2.8.1
SMC failed to conduct an adequate investigation of the information provided by CIF as it related to the recruitment of prospect 1. The institution failed to monitor the involvement of men’s basketball student-athletes with outside basketball trainers and conditioning coaches to ensure compliance with NCAA legislation.
The Committee was particularly concerned that when advised that former assistant coach was involved in the placement of prospect 1 at a local high school for the purpose of recruiting him to attend SMC, the institution limited its inquiry to asking the head coach, whose program would benefit, if he knew about prospect 1. The head coach stated that he had “heard of” prospect 1, but SMC was not recruiting him. SMC did no further investigation.
The institution also did not have in place proper mechanisms to monitor and there was a lack of communication regarding outside individuals involved in training sessions with student-athletes.
As a result of the aforementioned violations, the Committee penalized SMC as follows:
1. Public reprimand and censure.
2. Four years of probation from March 1, 2013 through February 28, 2017.
3. SMC shall reduce grants-in-aid in men’s basketball from 13 to 11 in 2014-15 and 2015-16.
4. SMC shall not take part in foreign tours until 2017-18.
5. SMC shall not participate in multiple-team events in 2013-14, 2104-15, and 2015-16.
6. No skill instruction will be allowed in 2013-14 and 2014-15.
7. No more than nine official visits in 2012-13 and 2013-14.
8. Limited to 85 recruiting person day in 2012-13 and 2013-14.
9. Reduced to two allowed full-time coaches permitted to recruit off-campus at any one time in 2012-13.
10. Seven hours of countable athletically-related activity during the eight-hour segment in 2012-13.
11. 18 hours of countable athletically-related activity during the 20-hour segment in 2012-13.
12. Reduced to six hours of permitted weight-training, conditioning and skill-related instruction during the 2013 summer vacation period.
13. Head coach shall be suspended for the first five conference games.
14. Head coach shall be restricted from off-campus recruiting for 2013-14.
15. The former assistant coach received a two-year show cause penalty.