The NCAA Committee on Infractions (“Committee” or “Panel” or “COI”) recently issued its findings and found that Sienna College (“Institution” or “Siena”) committed violations of NCAA legislation. This case involved benefits, competition and expenses, and coaching activity violations in the men’s basketball program at Siena College. The former head men’s basketball coach (“head coach”) failed to promote an atmosphere of compliance based on his involvement in these violations. Violations continued to occur during the investigation when the head coach knowingly provided false or misleading information about one (1) of the violations and a booster interfered with the investigation.

The Committee concluded that Sienna committed the following violations:

Violations of NCAA Division I Manual Bylaws 12.11.1, 16.8.1 and 16.11.2.1 (2015-16 through 2017-18) and 16.11.2.2-(d) (2016-17 and 2017-18)

From the 2015-16 through 2017-18 academic years, the head coach provided impermissible benefits to student-athletes. The benefits resulted in student-athletes competing and receiving expenses while ineligible. Siena and the head coach agree that the violations occurred except for one impermissible cash payment, which the head coach disputed. The Panel concluded that Level II violations occurred.

The head coach gave cash payments to student-athletes from the 2015-16 through 2017-18 academic years. On occasion in 2016 and 2017, he also arranged for his staff members to provide long-distance ground transportation to student-athletes. As a result of the extra benefits, student-athletes competed and received expenses while ineligible over three (3) years. The benefits and resulting competition and expenses violated Bylaws 12 and 16.

Bylaws 12 and 16 govern benefits and eligibility, respectively. Bylaw 16.11.2.1 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 an impermissible benefit that is not generally available to other students and their families or friends. As set forth in Bylaw 16.11.2.2-(d), prohibited benefits include transportation. Pursuant to Bylaw 16.8.1, an institution may provide actual and necessary expenses only to eligible student-athletes to represent the institution in practice and competition. Institutions must withhold ineligible student-athletes from competition pursuant to Bylaw 12.11.1.

During the 2015-16 through 2017-18 academic years, the head coach provided benefits to student-athletes. On multiple occasions during these years he gave cash payments—commonly referred to as “ice cream money”—to student-athletes in the locker room after games to share with the team. These payments ranged from $60 to $100 or more. Separate from this “ice cream money,” during the fall of 2017 before the season started, the head coach gave one of these student-athletes approximately $100 in a weight room on campus during team strength and conditioning activities. In addition, in November 2016, August 2017 and November 2017, the head coach arranged for his staff members to provide long-distance car transportation—totaling approximately $365 in value—to several student-athletes. The payments and transportation violated Bylaws 16.11.2.1 and 16.11.2.2. These extra benefits rendered the student-athletes ineligible. As a result, 28 student-athletes competed and received actual and necessary expenses while ineligible over three academic years. The competition and expenses violated Bylaws 12.11.1 and 16.8.1.

The head coach acknowledged that the violations occurred but asserted that he misunderstood the legislation. He claimed that he intended the cash to be used by the student-athletes for food as an “occasional meal.” He also stated that he believed that the transportation was permissible as an “occasional ride” and cited unique personal circumstances involving the student-athletes to justify the rides.

Contrary to the head coach’s explanation, the benefits legislation is well-known to the membership. The head coach did not provide an occasional meal to student-athletes, he gave them cash. Likewise, he arranged for rides covering hundreds of miles, not reasonable local transportation on an occasional basis as permitted under the legislation. The COI has routinely concluded that benefits violations occur when institutions or their representatives give student-athletes impermissible benefits, including cash payments. See University of Tennessee at Chattanooga (2018) (concluding that Level II benefits violations occurred when a booster provided 12 student-athletes with reduced cost rent, free use of automobiles, meals and transportation over a four-year period) and Florida International University (2017) (concluding, via summary disposition, that a Level II benefits violation occurred when the head women’s basketball coach provided a student-athlete with a $600 cash payment to register for a winter-term course needed to maintain eligibility).4 The COI has also regularly concluded that impermissible benefits result in eligibility violations when student-athletes compete and receive expenses while ineligible. See Florida International (concluding that Level II competition and expenses violations occurred when a student-athlete competed and received expenses while ineligible). As in these cases, and in accordance with Bylaw 19.1.2, the Panel concluded that the violations are Level II. The Panel further concluded that the violations were not isolated or limited, provided more than a minimal but less than substantial impermissible benefit and involved conduct that may impact the integrity of the NCAA Collegiate Model.

Violations of NCAA Division I Manual Bylaws 11.7.3 and 11.7.6 (2017-18)

During the 2017-18 academic year, the head coach directed and permitted a noncoaching staff member to engage in impermissible coaching activity, which caused the program to exceed the limit on countable coaches. Siena and the head coach agreed that the violations occurred. The Panel concluded that Level II violations occurred.

The head coach directed and permitted the director of basketball operations (“DOBO”) to provide coaching instruction to student-athletes throughout the 2017-18 academic year. His conduct constituted impermissible coaching activity under Bylaw 11, causing the program to exceed the limit on countable coaches by one for that year.

Bylaw 11 regulates aspects of the conduct of athletics personnel. Bylaw 11.7.3 prohibits a noncoaching staff member with sport-specific responsibilities—such as an operations director—from participating in on-court activities. In addition, Bylaw 11.7.6 limits a men’s basketball team to no more than four coaches.

On several occasions throughout the 2017-18 academic year, the head coach directed and permitted the DOBO to provide coaching instruction to student-athletes. The DOBO was a noncoaching staff member. The instruction ranged from preparing and presenting scouting reports during film review to coaching in practices and games, resulting in a Bylaw 11.7.3 violation. The impermissible coaching activity caused the program to effectively have five countable coaches for the 2017-18 season, which violated Bylaw 11.7.6.

Although he agreed that the violations occurred, the head coach characterized the DOBO’s activities as being in a “gray area” under the legislation. He explained that he thought the DOBO could present scouting reports as long as he did not put in plays. He also contended that everyone on the sidelines—even noncoaching staff members—coaches during games.

The legislation, however, is not gray as the coach contended. It is fundamental that an operations director—who is a noncoaching staff member—cannot present scouting reports, let alone coach in practice and games. The COI has consistently concluded that coaching activity violations occur when noncoaching staff members participate in on-court activities with student-athletes. See University of Oregon (2018) (concluding that Level II coaching activity violations occurred when, over four years, an operations director and assistant strength coach in the basketball programs collectively participated in student-athletes’ voluntary workouts, provided instruction during drills and refereed during practices, which caused their programs to exceed the limit on countable coaches); University of Northern Colorado (2017) (concluding that Level II coaching activity violations occurred when, a few times per week over several weeks, the operations director participated in practice sessions with an academic non-qualifier, which caused the men’s basketball program to exceed the limit on countable coaches) and University of Hawaii at Manoa (2015) (concluding that Level II coaching activity violations occurred when, over one year, the operations director presented information during scouting sessions, rebounded for post players and offered them on-court instruction during practice, which caused the men’s basketball program to exceed the limit on countable coaches). Consistent with these cases, and in accordance with Bylaw 19.1.2, the violations are Level II because they were not isolated or limited and gave Siena more than a minimal competitive advantage by having an extra men’s basketball coach for much of the year.

Violations of NCAA Division I Manual Bylaws 11.1.1.1 (2015-16 through 2017-18)

The head coach did not meet his legislated responsibility to promote an atmosphere of compliance due to his personal knowledge of and involvement in violations. Siena and the head coach agreed that the violation occurred. The Panel concluded that a Level II violation occurred.

From the 2015-16 through 2017-18 academic years, the head coach failed to meet his legislated responsibility to promote an atmosphere of compliance. He provided impermissible benefits in the form of cash payments and long-distance ground transportation to student-athletes. He also directed and permitted a noncoaching staff member to engage in impermissible coaching activity. The violations could have been avoided or stopped had he consulted with the compliance staff. 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 rules compliance and (2) to monitor individuals in their program who report to them. The bylaw presumes that head coaches are responsible for violations in their programs. Head coaches may rebut this presumption by demonstrating that they promoted an atmosphere of compliance and monitored their staff.

Here, the head coach could not rebut the presumption due to his personal knowledge of and involvement in the violations. During the 2015-16 through 2017-18 academic years, he gave impermissible cash payments to student-athletes. He also arranged for the DOBO, a student manager and an assistant coach to provide impermissible long-distance transportation to student-athletes. The extra benefits caused student-athletes to compete and receive expenses while ineligible over three years. Similarly, during his final year at Siena, he directed and permitted the DOBO to engage in impermissible coaching instruction. This caused the program to exceed the limit on countable coaches.

The head coach’s active role in these violations demonstrate that his efforts to promote an atmosphere of compliance fell short of his Bylaw 11.1.1.1 responsibility. The activities that he conducted, directed or permitted clearly triggered NCAA legislation and should have been vetted by the compliance staff. But the head coach never sought guidance from compliance or otherwise took any meaningful action to ascertain what was permissible. Instead, he operated under his own assumptions of what the legislation permitted and his assessment of what was best for his student-athletes.

In light of the head coach’s conduct, this case is not like those in which the COI concluded that a head coach rebutted his or her presumed responsibility. See University of the Pacific (2017) (concluding that the head baseball coach rebutted his presumption when the underlying benefits violation resulted from a legitimate misunderstanding between the coach and an associate athletics director and the coach followed proper procedures by seeking the associate athletics director’s input and approval) and Wichita State University (2015) (concluding that the head baseball coach rebutted his presumption when he failed one time to ask follow-up questions regarding his administrative assistant’s benefits violation and had properly monitored the assistant and set a tone of compliance for decades). Unlike in Pacific and Wichita State, the head coach personally involved himself and others in violations over three (3) academic years. There was no legitimate misunderstanding on procedures or decades of monitoring as head coach. He simply did not run a compliant program.

COI has regularly concluded that head coach responsibility violations occur when head coaches are personally involved in violations or direct and permit staff members to engage in violations, as well as fail to consult with the compliance staff. See University of California, Santa Barbara (UCSB) (2019) (concluding that a Level II head coach responsibility violation occurred when the head cross country and track coach failed to promote compliance by personally involving himself in countable athletically related activity violations and not consulting with compliance staff); Oregon (concluding that a Level II head coach responsibility violation occurred when the head women’s basketball coach failed to promote compliance by inviting and permitting an assistant strength coach to participate in impermissible coaching activity); Northern Colorado (concluding that a Level II head coach responsibility violation occurred when the head men’s basketball coach failed to promote compliance by violating academic and recruiting legislation and creating an environment in which his staff felt pressured to do the same) and Monmouth University (2017) (concluding that a Level II head coach responsibility violation occurred when the head men’s tennis coach failed to promote compliance by personally involving himself in recruiting inducements and practice prior to enrollment violations and not consulting with compliance staff).5 The head coach’s conduct aligns with these cases. Additionally, consistent with these cases and Bylaw 19.1.2-(e), the head coach responsibility violation is Level II because it resulted from underlying Level II violations.

Violations of NCAA Division I Manual Bylaws 10.01.1, 10.1 and 10.1-(c) (2017-18)

The head coach violated ethical conduct legislation when he knowingly provided false or misleading information during the investigation about his involvement in a benefits violation. The head coach disputed the allegation. The Panel concluded that the head coach committed a Level II violation.

During his interview with the NCAA enforcement staff, the head coach knowingly provided false or misleading information when he denied giving an impermissible cash payment to a student-athlete. His conduct was contrary to the standards of ethical conduct that the membership expects of athletics staff members. His conduct violated Bylaw 10.

Bylaw 10 requires current and former staff members to conduct themselves in an ethical manner. As set forth in Bylaw 10.01.1, staff members must always act with honesty and sportsmanship. In particular, they must not knowingly furnish false or misleading information concerning their involvement in or knowledge of violations in accordance with Bylaw 10.1-(c).

The head coach violated ethical conduct legislation when he denied during his April 20, 2018, interview that he provided a cash payment to a student-athlete in a weight room on Siena’s campus during team strength and conditioning activities. Substantial information in the record contradicted this denial and demonstrated that the head coach made the payment. The student-athlete admitted that he received the payment. In addition, the assistant strength coach provided a detailed eyewitness account of the exchange of money.

The head coach argued that the student-athlete’s and assistant strength coach’s accounts were not reliable. He contended that the student-athlete did not recall and provided vague and contradictory information about the exchange, confusing the alleged payment in the weight room with “ice cream money” that he received from the head coach. He also submitted that the assistant strength coach was not credible because he did not report the incident and could not verify the amount of the payment.

The record does not support these arguments. While the student-athlete may not have recalled every detail, he nonetheless acknowledged that the head coach gave him cash in a weight room and knew the amount of the payment. Considering that the assistant strength coach recalled that the exchange occurred in the fall prior to the 2017 season, the payment is clearly distinct from post-game “ice cream money.” The panel also finds the assistant strength coach to be credible. As the assistant strength coach explained, he did not report the payment because he thought that it may have been related to the student-athlete’s participation in a camp. In addition, although he did not know the exact amount of the payment, he reported that the bills were rolled or folded and delivered in a handshake-like manner. The booster’s attempt to influence the assistant strength coach to recant this information bolsters the assistant strength coach’s credibility. He had no incentive to be untruthful.

Being forthcoming during an investigation is critical to the infractions process. The COI has consistently concluded that the knowing provision of false or misleading information violates ethical conduct legislation. See Georgia Institute of Technology (2019) (concluding that an assistant men’s basketball coach engaged in unethical conduct when he knowingly provided false and misleading information about his involvement in recruiting violations); Northern Colorado (concluding that two assistant men’s basketball coaches engaged in unethical conduct when they knowingly provided false or misleading information about their involvement in completing or arranging for the completion of coursework for ineligible prospects) and University of Mississippi (2017) (concluding that athletics staff members engaged in unethical conduct when they knowingly provided false or misleading information about their involvement in helping prospects obtain fraudulent ACT exam scores, arranging for impermissible meals, lodging and transportation for prospects, and arranging for boosters to have contact and communication with a student-athlete for the purpose of providing him cash payments). The head coach fell short of his obligation to provide truthful information during an investigation.

The Panel concluded that the ethical conduct violation is Level II pursuant to Bylaw 19.1.2. Even though the head coach knowingly provided false or misleading information, his denial concerned a single $100 cash payment that was part of a multi-faceted Level II violation. In addition, the enforcement staff indicated that the denials did not substantially impede the investigation because the enforcement staff had already established the information to substantiate the violation. The panel recognizes that most ethical conduct violations are Level I in accordance with Bylaw 19.1.1, which identifies unethical conduct as an example of a Level I violation. See Georgia Tech, Northern Colorado and Mississippi (2017). This case, however, is different.

COI has previously concluded that ethical conduct violations for knowingly providing false or misleading information were Level II when unique circumstances did not warrant Level I violations. See Rutgers, The State University of New Jersey, New Brunswick (2017) (concluding that a Level II ethical conduct violation occurred when an assistant football coach knowingly provided false or misleading information about his impermissible contact with a prospect during his visit to the prospect’s high school); University of Mississippi (2016) (concluding that level II ethical conduct violations occurred when the head track coach knowingly provided false or misleading information about his awareness of assistant track coaches’ impermissible recruiting activities and an assistant track coach knowingly provided false or misleading information about taking precautions to avoid having prospects impermissibly run with enrolled student-athletes) and San Jose State University (2016) (concluding that a Level II ethical conduct violation occurred when the head women’s basketball coach knowingly provided false or misleading information about a nonqualifier’s participation in some team activities during her year in residence). This case also involves unique circumstances. In this case, as in the others, the nature of the false or misleading information—one of many cash payments—was more limited in scope than cases in which Level I violations occurred. The enforcement staff also asserted that it could substantiate the violation despite the head coach’s failure to provide truthful information.

Violations of NCAA Division I Manual Constitution 6.4.2 and Bylaw 19.2.1 (2018-19)

A Siena booster interfered during the investigation by attempting to influence an athletics staff member to recant first-hand information he had reported about the head coach’s improper conduct. Siena agreed that the interference occurred but denied that it was accountable for the booster’s conduct. The panel concludes that Level II violations occurred.

A booster interfered during the investigation when he initiated contact with the assistant strength coach to influence him to recant information he had reported about the head coach during the investigation. The assistant strength coach told the enforcement staff that he witnessed the head coach provide cash to a student-athlete in a weight room. Siena agreed that the booster interfered but disputed that it was accountable for the violation. The panel concludes that Siena is responsible for the booster’s conduct and violated Constitution 6 and Bylaw 19.

Constitution 6 addresses institutional control. In accordance with Constitution 6.4.2, institutions are responsible for the conduct of their boosters. Bylaw 19.2.1 specifies that institutions must monitor and control their boosters to assure compliance with the legislation.

A prominent booster twice initiated contact with the assistant strength coach to influence him to recant his interview statements about the head coach’s impermissible cash payment to a student-athlete in a weight room during team strength and conditioning activities. The contact occurred on October 29, 2018, shortly after the enforcement staff gave the head coach access to its case file with information about the payment. The booster approached the assistant strength coach outside of the athletics complex and then—after their conversation was interrupted—inside the assistant strength coach’s office in the athletics complex. During these conversations, the booster attempted to intimidate and persuade the assistant strength coach into recanting what he previously reported to the enforcement staff about the payment. This conduct undermined the infractions process and threatened the integrity of the investigation. Siena is responsible for the conduct and thus violated Constitution 6.4.2 and Bylaw 19.2.1.

Although Siena agreed that the events occurred as alleged, it argued that it should not be held accountable for the booster’s conduct. The institution pointed toward the booster’s relationship with the head coach and contended that the head coach likely knew of or encouraged the booster’s conduct. Siena submitted that the booster’s conduct was contrary to Siena’s position and interests and the booster intended to help the head coach, who was no longer employed by Siena when he violated ethical conduct legislation.

Institutions are accountable for their boosters, who act on behalf of the institutions that they represent. The COI has consistently concluded that institutions violate Constitution 6.4.2 when they fail to control their boosters’ conduct. See Mississippi (2017) (concluding that the institution failed to exercise control over several boosters, many of whom knowingly violated recruiting and benefits legislation) and University of Central Florida (2012) (concluding that the institution lacked control by failing to monitor the conduct, interaction and communication between athletics staff members and a booster and persons associated with the booster). The NCAA Division I Infractions Appeals Committee (IAC) recently reaffirmed this accountability, stating that an institution cannot be absolved from a penalty even if it was not directly involved in and unaware of violations by a booster. See Brigham Young University, IAC Report No. 506 (2019). This case is no different. The panel acknowledges the relationship between the head coach and booster but does not find, nor was it alleged, that the head coach knew of or encouraged the booster’s interference. Even if the booster acted contrary to Siena’s position and interests and tried to help the head coach, Siena must still control the booster and is responsible for his conduct.

In accordance with Bylaw 19.1.2, the violation is Level II because it may compromise the integrity of the Collegiate Model. At the hearing, Siena agreed that if a violation occurred it should be 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-(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;

19.9.3-(i): One or more violations caused significant ineligibility or other substantial harm to a student-athlete or prospect; and

19.9.3-(k): A pattern of noncompliance within the sport program involved.

Mitigating Factors for the Institution

19.9.4-(b): Prompt acknowledgement of the violation, acceptance of responsibility and imposition of meaningful corrective measures and/or penalties;

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

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

Aggravating Factors for the Head Coach

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-(g): Multiple Level II violations by the head coach;

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; and

19.9.3-(k): A pattern of noncompliance within the sport program involved.

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.

As a result of the foregoing, the Committee penalized Sienna as follows:

1. Public reprimand and censure.
2. Probation: Three (3) years of probation from March 9, 2020, through March 8, 2023.
3. Financial penalty: The institution shall pay a fine of $5,000 to the NCAA.
4. Show Cause: The head coach provided impermissible benefits in the form of cash payments to student-athletes from the 2015-16 through 2017-18 academic years. He also arranged for his staff members to provide impermissible long-distance ground transportation to student-athletes on multiple occasions. These benefits resulted in student-athletes competing and receiving expenses while ineligible during this time period. The head coach also directed and permitted the DOBO to provide impermissible basketball instruction to student-athletes throughout the 2017-18 academic year, which caused the program to exceed the permissible number of countable coaches. In addition, after he resigned from Siena, the head coach knowingly provided false or misleading information during the investigation. Therefore, he shall be subject to a three-year show-cause order from March 9, 2020, to March 8, 2023. Pursuant to COI IOP 5-15-3-1, if the head coach seeks employment or affiliation with any athletically related position at an NCAA member institution during the three-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.
5. Head coach restriction: The head coach violated head coach responsibility legislation when he failed to promote an atmosphere of compliance. Bylaw 19.9.5.5 and the Figure 19-1 penalty guidelines contemplate head coach suspensions to address head coach responsibility violations. Therefore, should the head coach become employed in an athletically related position at an NCAA member institution during the three-year show-cause period, he shall be suspended from 30 percent of the first season of his employment. The suspension shall run concurrently with the first year of the show-cause order. Because the show-cause order restricts the head coach from all athletically related activity, the suspension is subsumed within the show-cause order.
6. Vacation of team and individual records: Ineligible participation in the men’s basketball program occurred over three academic years as a result of violations in this case. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3 and COI IOP 5-15-7, Siena shall vacate all regular season and conference tournament wins, records and participation in which the ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for competition.10 This order of vacation includes all regular season competition and conference tournaments. Further, if the ineligible student-athletes participated in NCAA postseason competition at any time they were ineligible, Siena’s participation in the postseason contests in which the ineligible competition occurred shall be vacated. The individual records of the ineligible student-athletes shall also be vacated.
7. Disassociation: As a corrective action, Siena notified the booster on May 23, 2019, that Siena disassociated him for three years. The panel extends this institutionally-imposed disassociation through three years from the release of the decision, incorporates the conditions of disassociation identified by Siena and includes an additional condition pursuant to Bylaw 19.9.7-(i). Specifically, disassociation shall last through March 8, 2023, and include: (a) Refraining from accepting any assistance from the booster that would aid in the recruitment of prospects or the support of enrolled student-athletes; (b) Refusing financial assistance for Siena’s athletics program from the booster; (c) Ensuring that no athletics benefit or privilege is provided to the booster, either directly or indirectly, that is not generally available to the public at large; (d) Restricting the booster from having contact with prospects or enrolled student-athletes; (e) Not permitting the booster to utilize Siena workout facilities without a paid membership that is available to the general public; (f) Restricting the booster from access to athletics department staff members regarding any athletics matter; and (g) Taking other actions that Siena determines to be within its authority to eliminate the involvement of the booster in the institution’s athletics program.

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