The NCAA Committee on Infractions (“Committee” or “Panel” or “COI”) recently issued its findings and found that the University of Tennessee at Chattanooga (“Institution” or “UTC”) committed violations of NCAA legislation. The case centered on a representative of the Institution’s athletics interests (booster) providing men’s tennis student-athletes at UTC with extra benefits. Over four (4) years, the booster provided twelve (12) men’s tennis student-athletes with extra benefits. From a monetary standpoint, the most significant benefits stemmed from a pipeline of student-athletes who lived with and rented rooms from the booster. These living arrangements included reduced-cost rent and use of automobiles. In addition, the booster treated student-athletes to meals on eleven (11) occasions and provided transportation to an amusement park on one (1) occasion.

The Committee concluded that UTC committed the following violations:

Violations of NCAA Division I Manual Bylaws 16.11.2.1 (2012-13 through 2016-17); 16.11.2.3-(c) (2012-13); 16.11.1.5 and 16.11.2.2-(a) (2014-15 and 2015-16); 16.11.2.2-(c) (2014-15 through 2016-17); and 16.11.2.2-(d) (2013-14)

UTC and the NCAA enforcement staff agreed that over several years, the booster provided impermissible benefits to men’s tennis student-athletes. The benefits stemmed from the four-year pipeline of men’s student-athletes living with and renting from the booster. The benefits primarily involved reduced-cost housing and the use of automobiles free of charge. They also included meals free of charge on several occasions and transportation free of charge on one occasion. Although the parties valued the benefits differently, they agreed that the violations were Level II. The Panel concluded Level II violations occurred.

From August 2012 through August 2016, the booster had a pipeline of men’s tennis student-athletes who rented rooms from her. Through these relationships, she interacted with the men’s tennis program over four (4) years, resulting in several impermissible benefits. During this time, she rented rooms to student-athletes at reduced rates; provided the use of her automobiles free of charge; treated student-athletes to free meals on several occasions; and drove student-athletes free of charge to an amusement park 120 miles away. The reduced-cost and free benefits violated NCAA Bylaw 16.

NCAA Bylaw 16 governs awards, benefits and expenses. Bylaw 16.11.2.1 defines an extra benefit as any special arrangement by an institutional employee or booster to provide a student-athlete or their family or friends with a benefit not expressly authorized by NCAA legislation. A loan of money, use of an automobile and transportation are specifically identified as extra benefits under Bylaw 16.11.2.2. Meals are not expressly prohibited but are only permissible in limited circumstances. Specifically, Bylaw 16.11.1.5 permits boosters to provide occasional meals on infrequent and special occasions, but the meals must be provided at an individual’s home, on campus or at a location regularly used for competition. Boosters may not provide meals at a restaurant.

The booster developed and maintained relationships within the men’s tennis program that resulted in her providing twelve (12) student-athletes with extra benefits. The student-athletes were either current student-athletes or student-athletes who had recently exhausted their eligibility and remained on athletics aid to finish their degree. The most significant impermissible benefits involved reduced-cost housing for three student-athletes and the free use of the booster’s extra automobiles for four student-athletes. Further, when one of the student-athletes could not make his reduced-cost payments, the booster permitted him to repay her later, essentially providing him with a loan. Over those four (4) years, she also provided eleven (11) student-athletes, three (3) of whom rented from her, with occasional free meals. The meals usually followed the first tournament of the season or a senior student-athlete’s final match. Finally, during UTC’s 2014 spring break, men’s tennis student-athletes invited the booster to come with them to an amusement park about 120 miles away. She agreed and drove two (2) student-athletes there and back. A third student-athlete also rode to the amusement park with them but returned to campus separately. None of the student-athletes paid the booster for the ride.

The booster provided the men’s tennis student-athletes with benefits that are not expressly permitted under NCAA rules. In fact, three (3) of the activities are expressly prohibited under NCAA Bylaw 16.11.2.2-(a), (c) and (d) (i.e., a loan, use of an automobile and transportation). Likewise, the reduced-cost housing was a special arrangement that was not expressly authorized and not generally available. Outside of a general statement from the booster that she also rented rooms to non-UTC students, there is no information supporting that individuals other than the pipeline of men’s tennis student-athletes or former men’s tennis student-athletes rented from the booster. The housing arrangements violated Bylaw 16.11.2.1.

The COI has recently considered a number of cost-free or reduced cost housing, meals and transportation cases. Although recent cases have generally involved prospects and Bylaw 13, the same principles apply with the violations in this case. See Monmouth University (2017) (concluding that Level II violations occurred when a prospect received housing, transportation and meals); University of South Florida (2017) (concluding that Level II violations occurred when an assistant coach arranged for two prospects to receive free housing, meals and transportation); and Grambling State University (2017) (concluding that Level II violations occurred when an assistant coach, booster and others affiliated with the track program provided a prospect with housing, transportation, cash and meals). Like those cases, the booster’s provision of reduced-cost housing, automobiles free of charge, meals free of charge, and transportation free of charge violated NCAA legislation.

Consistent with those cases, UTC and the NCAA enforcement staff agreed that these violations were Level II. Although the parties valued the impermissible benefits differently, they agreed that the differences were likely inconsequential. The Panel agreed. The facts demonstrate that under either violation student-athletes received a substantial impermissible benefit. Therefore, pursuant to NCAA Bylaw 19.1.2, and consistent with Monmouth, South Florida and Grambling State, the Panel concluded that the violations are Level II.

Violations of NCAA Division I Manual Bylaws 11.1.2.1 (August 1, 2012 through October 29, 2012) and 11.1.1.1 (October 30, 2012 through 2015-16)

The head coach failed to promote an atmosphere of compliance in his program. UTC and the NCAA enforcement staff substantially agreed to the facts and that the violation occurred. The former head coach disputed the allegation. The Panel concluded a Level II violation occurred.

From September 2012 through December 2015, the head coach failed to meet his head coach responsibility. He is presumed responsible for the extra benefit violations that occurred in his program. Despite having several opportunities to identify potential areas of concern or seek additional guidance from compliance on his student-athletes’ off-campus arrangements, the head coach did not. As a result, he failed to rebut that presumption. His conduct violated NCAA Bylaw 11.

NCAA Bylaw 11 governs the conduct and ethics of athletics personnel. NCAA Bylaw 11.1.1.1 establishes an affirmative duty on head coaches to promote an atmosphere of rules compliance. Specifically, head coaches are presumed responsible for violations in their program but may rebut this presumption by demonstrating they promoted an atmosphere of compliance and monitored their direct and indirect reports.

The head coach did not sufficiently rebut his presumed responsibility related to his student-athletes’ housing and automobile arrangements. The scope of the head coach’s failure was narrow but significant. By his own admission, the head coach was familiar with the booster. He knew who she was and knew that she attended some of his program’s matches but never identified her arrangements with his student-athletes as red flags. Despite his familiarity, he also never consulted compliance about the booster or her involvement with his student-athletes. The head coach had multiple opportunities to do so over roughly three-and-one-half years.

First, the head coach learned that his student-athletes were living with the booster roughly ten (10) miles from campus. To his credit, the head coach requested lease agreements. But he only reviewed them to make sure they were professional. It is unclear when he provided these leases to UTC’s compliance office, but even accepting that the head coach immediately provided them to compliance, he fell short of his responsibilities. The head coach handed them over without any context. According to the head coach, he only asked compliance to let him know if there were any issues. He did not identify any concern that his student-athletes were renting from a known fan of the program or in the distance they lived from campus.

The head coach also failed to identify and inform compliance about his student-athletes’ use of the booster’s automobiles. Shortly after the first student-athlete moved in with the booster, the head coach learned he was driving the booster’s automobiles. To the head coach’s credit, he asked the student-athlete about his use of the automobile. The student-athlete told him he had an oral agreement. Satisfied, the head coach did not inquire further or inform compliance. Later, three (3) more student-athletes used the booster’s automobiles free of charge.

In part, because the head coach failed to identify and address these potential issues, the pipeline of men’s tennis student-athletes as housemates and tenants for the booster continued for three (3) more years. The Panel appreciated the head coach’s 22-year commitment to serving student-athletes, prioritizing academic success, diligently filling out paperwork, attending on-campus compliance meetings and sharing applicable legislation with his student-athletes. However, the head coach admitted that he took a hands-off approach with respect to his student-athletes’ off-campus arrangements. He presumed that if there were any issues, compliance would let him know. The head coach’s assumption was misguided. Compliance is an ongoing, shared responsibility and coaches—particularly head coaches—are vital for assuring compliance within sport programs. The head coach mistakenly presumed the first student-athlete’s arrangements complied with NCAA legislation and he repeated this mistake with three more of his student-athletes in the years to come. In that regard, he failed to promote an atmosphere of compliance with respect to their housing and automobile arrangements.

COI has regularly concluded head coach responsibility violations occur when the coach makes his own uninformed determination without consulting the compliance staff. See Ohio State University (2017) (concluding that a head coach failed to rebut his presumed responsibility when he was aware that a prospect was on campus but failed to notify the compliance office or take appropriate steps to ensure the prospect’s living arrangements complied with NCAA legislation); Monmouth (concluding that a former head coach failed to consult compliance when he assumed that a prospect obtained a visa in time for enrollment and then arranged for, among other things, the prospect’s cost-free living arrangements); Grambling State (concluding a head coach violated head coach responsibility legislation and that had he inquired about the permissibility of the living arrangement of the prospect that arrived early, she would have learned of the recruiting inducements violation); University of Hawaii at Manoa (2015) (concluding a former head coach violated head coach responsibility legislation when he determined an extra benefits violation did not occur without consulting the compliance staff); and University of Miami (2013) (concluding a former head coach violated head coach responsibility legislation when he did not inquire and report all compliance concerns, questions or violations). Like these cases, the head coach did not identify the potential issues surrounding his student-athletes’ living and automobile arrangements. Accordingly, the former head coach violated NCAA Bylaw 11.1.1.1.

The head coach’s actions are distinguishable from those of a recent previous head coach who COI concluded rebutted his presumed responsibility. In Pacific University (2017), the former head baseball coach demonstrated a career of compliant behavior and proactive communication with compliance. Specifically, over the former head coach’s 12-year career he was very engaged with compliance and frequently asked questions. Further, he followed proper procedures by seeking input and approval from the athletics staff member assigned to compliance before acting. The violation at issue resulted from a legitimate misunderstanding between the two. COI concluded the head coach rebutted his presumed responsibility because he demonstrated he promoted an atmosphere of compliance. See also Wichita State University (2015) (concluding that a head coach did not fail to monitor his long-time administrative assistant for failing to ask follow-up questions on one occasion). Similar to Pacific, the head coach demonstrated a history of compliance in his program. Unlike Pacific, however, the head coach did not demonstrate that he identified an issue and clearly brought it to compliance’s attention. As a result, his hands-off approach contributed to four (4) years of violations relating to housing and automobile use.

Pursuant to NCAA Bylaw 19.1.2-(e), this is a Level II violation because it resulted from underlying Level II violations. COI has regularly concluded a Level II head coach responsibility violation is appropriate where the underlying violations, including recruiting inducements violations, are Level II. See Ohio State (concluding the Level II head coach responsibility violation derived from the underlying Level II violations). The Level II housing and automobile violations support a Level II head coach responsibility violation.

Violations of NCAA Division I Manual Constitution 2.8.1 (2012-13 through 2015-16)

For several years, UTC failed to monitor its men’s tennis student-athletes’ housing arrangements. UTC and the NCAA enforcement staff substantially agreed to the facts and that the violation occurred. The Panel concluded a Level II violation occurred.

From January 2013 through May 2016, UTC failed to identify issues with men’s tennis student-athletes’ housing arrangements. Despite having processes in place, UTC did not identify the varying rates or the distance from campus men’s tennis student-athletes were living as potential issues. As a result, the living arrangements went unchecked and reduced-cost housing arrangements went undetected for over three years. In failing to monitor, UTC violated NCAA Constitution 2.8.1.

Article 2 of the NCAA Constitution sets forth core principles for institutions conducting intercollegiate athletics programs. NCAA Constitution 2.8.1 requires an institution to abide by all rules and regulations, monitor compliance and report instances of noncompliance.

UTC agreed that it failed to monitor the men’s tennis student-athletes’ housing arrangements. The institution had a process by which student-athletes identified their living arrangements. According to UTC, this included their address and the amount of their rent. Despite this accessible information, UTC did not identify the home’s lengthy distance from campus in which the student-athletes lived or the lower-than-normal (and fluctuating) rental rates as potential issues. As a result, UTC perpetuated the pipeline of student-athletes who lived with and rented rooms from the booster at discounted rates. By not identifying and following up on the arrangements, UTC fell short of its monitoring responsibilities and violated NCAA Constitution 2.8.1.

UTC’s failure to monitor violation aligns with the COI’s most recent decided case where an institution did not identify impermissible housing, transportation and meal violations. See Monmouth (concluding that the institution failed to monitor its men’s tennis program when, among other violations, a non-enrolled prospect lived with current student-athletes, practiced with the team and received cost-free inducements). Like Monmouth, UTC failed to monitor housing issues in its men’s tennis program.

Pursuant to NCAA Bylaw 19.1.2-(b), failure to monitor violations are presumed Level II. In addition, UTC’s failure to monitor violation derives from underlying Level II extra benefit violations. See Monmouth (concluding that Monmouth committed a Level II failure to monitor violation that resulted in Level II recruiting and inducement violations). Accordingly, the Panel concluded UTC’s failure to monitor is a Level II violation.

In reaching its conclusions, the Panel explored how NCAA Constitution 2 and NCAA Bylaw 16 applied to student-athletes who had exhausted their eligibility. Previously, COI noted that it is concerned with the challenges associated with requiring institutions to monitor student-athletes who have exhausted their eligibility. See New Hampshire (2015). In New Hampshire, and in the present matter, the enforcement staff relied on the January 6, 1989, Official Interpretation, which prohibits boosters from providing cash and gifts to student-athletes who have exhausted their eligibility for both underlying and monitoring violations. The panel agrees circumstances may exist where this type of application protects against threats to the collegiate model (i.e., promises for later gifts or payments from boosters during a prospect’s recruitment or during a student-athlete’s playing career). In those circumstances, violations are undoubtedly appropriate. However, almost thirty years have passed since publication of the Official Interpretation and during that time the collegiate landscape has changed. Accordingly, the blanket application of extra benefits legislation to student-athletes who have exhausted their eligibility may be ripe for review for both underlying conduct and member institutions’ monitoring responsibilities.

Nonetheless, because the parties agreed with the applicable timeframe of the failure to monitor violation, the panel accepts those agreements. Additionally, only two (2) of the student-athletes received impermissible housing and automobile arrangements after they had exhausted their eligibility. The first began living with the booster as a current student-athlete and continued after he had exhausted his eligibility. The second moved in approximately two months after he exhausted his eligibility. Both remained enrolled at UTC and continued to receive athletics aid while finishing their degrees. Further, the second student-athlete who lived with the booster after he had exhausted his eligibility moved into the booster’s home three years after the first tennis student-athlete began living with the booster. Had UTC identified the arrangement earlier, it could have prevented the impermissible arrangements.

Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4

Aggravating Factors for UTC

NCAA Bylaw 19.9.3-(g): Multiple Level II violations;

NCAA Bylaw 19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violations or related wrongful conduct; and

NCAA Bylaw 19.9.3-(i): One or more violations caused significant ineligibility to a student-athlete.

Mitigating Factors for UTC

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

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

NCAA Bylaw 19.9.4-(d): An established history of self-reporting Level III or secondary violations.

Aggravating Factors for the Former Head Coach

NCAA Bylaw 19.9.3-(h): Persons of authority condoned, participated in or negligently disregarded the violation or related wrongful conduct.

Mitigating Factors for the Former Head Coach

NCAA Bylaw 19.9.4-(b): Prompt acknowledgement of the violation and acceptance of responsibility; and

NCAA Bylaw 19.9.4-(h): The absence of prior conclusions of Level I, Level II or major violations committed by the former head coach.

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

1. Public reprimand and censure.

2. Two (2) years of probation from March 27, 2018, through March 26 2020.

3. The Institution shall pay a fine of $5,000.

4. UTC reduced men’s tennis equivalencies by five percent (5%) for the 2017-18 academic year.

5. UTC will permanently ban the booster from renting housing or automobiles to any of UTC’s student-athletes. Similarly, UTC will disassociate the booster for a period of four years. The terms of the disassociation are as follows: (a) Prohibition from access to complimentary tickets, including but not limited to, the following sources: current student-athletes coaches, current ticket holders or alumni members; (b) Prohibition from purchasing season tickets from the institution for any athletics events; (c) Prohibition from any contact between the booster and any student-athletes; (d) Prohibition from any contact between the booster and any coaching staff members or other administrative members; (e) Prohibition from attendance at any practice or competition of any athletics contest on the institution’s campus; and (f) Prohibition from making any financial or gift in-kind contribution for support of the institution’s athletics programs.

6. The Institution shall vacate all regular season and conference tournament records and participation in which the ineligible student-athletes detailed above 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.