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 involved the University of Akron (“UA” or “Akron” or “institution”) and impermissible benefits and ineligible competition in the Akron’s football program. Specifically, the former associate director of athletics for compliance (“associate AD”) violated extra benefit legislation when he provided cash loans from his personal bank account to nine (9) football student-athletes over the course of two academic years. The associate AD’s conduct failed to meet the principles of ethical conduct outlined by the NCAA membership.  The panel classified this case as Level I-Mitigated for Akron and Level I-Standard for the associate AD.

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

Violations of NCAA Division I Manual 10.1-(c) (2014-15); 10.01.1, 10.1, 16.11.2.1 and 16.11.2.2-(a) (2014-15 and 2019-20); 12.11.1 and 16.8.1 (2015-16 through 2016-17 and 2019-20); and 10.1-(b) (2019-20)

In January 2015, August 2019 and January 2020, the associate AD violated the principles of ethical conduct when he knowingly arranged for and provided $5,900.00 in impermissible benefits in the form of cash loans to nine (9) football student-athletes. As a result of the benefits, four (4) student-athletes competed in 21 contests and received actual and necessary expenses while ineligible. The violations are Level I.

The associate AD violated unethical conduct legislation when he knowingly gave cash loans to student-athletes during the 2014-15 and 2019-20 academic years. Although the associate AD attempted to provide the student-athletes with scholarships through Akron’s bursar’s office, the institution did not have a cash advance program. As a result, he took matters into his own hands and provided the student-athletes with loans that directly violated NCAA legislation. The student-athletes then competed and received impermissible expenses while ineligible. The benefits and resulting ineligible competition and expenses violated NCAA Bylaws 10, 16 and 12.

NCAA Bylaw 10 establishes ethical conduct standards. Generally, NCAA Bylaw 10.01.1 requires all staff members to act with honesty and sportsmanship. More specifically, NCAA Bylaw 10.1 outlines sample behavior that is considered unethical conduct, including an individual’s knowing involvement in offering or providing an enrolled student-athlete an improper inducement or extra benefit under NCAA Bylaw 10.1-(b).

NCAA Bylaws 12 and 16 govern eligibility and benefits, respectively. NCAA 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 student-athletes or their families or friends with an impermissible benefit that is not generally available to other students. As set forth in NCAA Bylaw 16.11.2.2-(a), prohibited benefits include loans of money. Pursuant to NCAA 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 also withhold ineligible student-athletes from competition under NCAA Bylaw 12.11.1.

All parties agreed that during the 2014-15 and 2019-20 academic years, the associate AD provided impermissible cash loans to nine (9) football student-athletes. The associate AD unilaterally provided the money to the student-athletes with funds from his personal bank account. The loans ranged from $100.00 to $1,000.00 and totaled $5,900.00. After providing the loans, the associate AD created loan repayment agreements on Akron’s letterhead and required the student-athletes to sign them. This conduct violated NCAA Bylaws 16.11.2.1 and 16.11.2.2-(a), which expressly prohibit institutional employees from providing student-athletes with loans of money. Similarly, the violations rendered the student-athletes ineligible. As a result, four (4) student-athletes competed in 21 contests and received actual and necessary expenses while ineligible over the course of three (3) academic years. Their ineligible competition and impermissible expenses violated NCAA Bylaws 12.11.1 and 16.8.1, respectively.

Although the associate AD agreed that his conduct resulted in violations of NCAA Bylaws 12 and 16, the associate AD asserted that his involvement in those violations did not violate the principles of ethical conduct under NCAA Bylaw 10. Specifically, the associate AD claimed that, at the time he provided the loans to the student-athletes, he mistakenly believed that his conduct was permissible, because he did not exceed their individual financial aid limitations. In other words, he claimed that he did not know his conduct was a violation and the panel is therefore precluded from concluding that an unethical conduct violation occurred. Further, the associate AD claimed that his actions were not “clandestine or covert,” as athletics staff members were aware of the loans and the associate AD never instructed anyone to keep the loans a secret.

NCAA Bylaw 10.1 is clear. It expressly defines knowingly arranging or providing an impermissible benefit to student-athletes as unethical conduct. See NCAA Bylaw 10.1-(b). COI has regularly concluded that NCAA Bylaw 10.1-(b) violations occur when an involved individual provides impermissible benefits. See California State University, Sacramento (Sacramento) (2018) (concluding that the tennis director violated the principles of ethical conduct when he knowingly provided impermissible benefits and recruiting inducements to student-athletes and prospective student-athletes, and later failed to cooperate in the investigation) and Prairie View A&M University (2017) (concluding that the former assistant men’s basketball coach violated the principles of ethical conduct when he arranged for a representative of the institution’s athletic interests to pay for a student-athlete’s online course). COI has also emphasized that involved individuals are not required to have intentionally committed NCAA rules violations to establish “knowing” involvement. Instead, the COI has historically and consistently applied a “knew or should have known” standard. See University of California, Los Angeles (UCLA) (2016) (concluding that an associate head football coach acted unethically when he provided housing and training benefits to prospects even though he did not know—but should have known—that the benefits were impermissible). In that way, the actor does not need to know that they are committing an NCAA violation. Instead, the actor must consciously commit the act that results in an NCAA violation. Finally, the COI has not concluded that unethical conduct requires concealment of violations or an intent to act covertly. Such elements are not required under NCAA Bylaw 10.1-(b).

Contrary to the associate AD’s explanation, the extra benefits legislation is well-known to the membership—particularly compliance administrators. Moreover, the associate AD was Akron’s highest-ranking compliance administrator with decades of athletics compliance experience. Like the associate head football coach in UCLA, the associate AD should have known that cash loans constituted impermissible benefits or, at the very least, sought guidance when he learned that Akron did not have a cash advance program. The fact that he may not have gone to great lengths to cover up the cash loans does not impact a conclusion of unethical conduct. Thus, the NCAA Bylaw 10 violations are appropriate and apply.

Based on these violations, Akron and the NCAA enforcement staff agreed that a Level I designation was appropriate. The associate AD disagreed, asserting that the NCAA Bylaw 16 violations were Level III. In support of his position, the associate AD claimed that the extra benefit violations were limited or isolated, inadvertent and provided student-athletes with no more than a minimal benefit. He also cited Level III cases that he viewed as instructive. The panel disagreed and concluded that the violations are Level I.

COI has consistently concluded that unethical conduct and extra benefit violations are Level I. See Sacramento (concluding a Level I unethical conduct violation occurred where a tennis director knowingly provided impermissible benefits and inducements to student-athletes and prospects) and University of Northern Colorado (2017) (concluding Level I unethical conduct violations occurred where multiple coaches provided prospects with impermissible inducements in the form of payment for online courses). Although the monetary value of a benefit may be a factor, the COI has stated that value is not in and of itself the sole factor for determining violation level. See Brigham Young University (2018) (comparing Level II violations valued at $16,000 with Level I violations valued at $800 that differed in level largely due to the substantive nature of the conduct). The COI has also clarified what facts may make a Level III classification inappropriate. See California Polytechnic State University (Cal Poly) (2019) (stating that violations that occur over multiple years are not isolated in nature). Finally, although some Level III cases may contain similar extra benefit violations, the Level III process is a separate process that is administered by the NCAA enforcement staff and is not binding on Level I or Level II cases adjudicated by the COI. See North Carolina Central University, IAC Report No. 499 (2018) (reinforcing that the COI “is not bound by the actions taken in Level III infraction decisions when it prescribes penalties related to Level I or II violations”).

The violations in this case were not isolated or limited. Rather, they continued over the course of two (2) academic years. The extra benefit violations also provided a substantial or extensive advantage or impermissible benefit—advance payments, most of which exceeded $500.00 and resulted in four (4) student-athletes competing while ineligible. Finally, the NCAA membership has identified unethical conduct as an example of a Level I violation. See NCAA Bylaw 19.1.1-(d). In accordance with NCAA Bylaw 19.1.1, the panel concluded that the violations are Level I.

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; and

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-(a): Prompt self-detection and self-disclosure;

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

Aggravating Factors for the Associate AD

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; and

19.9.3-(m): Intentional, willful or blatant disregard for the NCAA constitution and bylaws.

Mitigating Factors for the Associate AD

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

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

The Committee penalized UA as follows:

1. Public reprimand and censure.
2. Probation: Two years of probation from August 19, 2021, through August 18, 2023.
3. Financial Penalty: Akron shall pay a fine of $5,000.
4. Show-Cause Order: The associate AD provided impermissible benefits in the form of cash loans to nine football student-athletes during the 2014-15 and 2019-20 academic years. These benefits resulted in four student-athletes competing in 21 contests and receiving expenses while ineligible. As a result of his involvement in these violations, the associate AD also committed unethical conduct violations. Therefore, he shall be subject to a two-year show-cause order from August 19, 2021, to August 18, 2023.
5. Vacation of team and individual records: Ineligible participation in the football program occurred over three academic years as a result of cash loans provided by the associate AD. In total, four student-athletes competed in 21 contests while ineligible. Therefore, pursuant to Bylaws 19.9.7-(g) and 31.2.2.3 and COI IOP 5-15-7, Akron 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.

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