FOR IMMEDIATE RELEASE: February 5, 1999 CONTACT: Robert A. Stein, acting chair, NCAA Infractions Appeals Committee FORMER UNIVERSITY OF LOUISVILLE MEN'S ASSISTANT BASKETBALL COACH PUBLIC INFRACTIONS APPEALS COMMITTEE REPORT OVERLAND PARK, KANSAS--This report is filed in accordance with NCAA Bylaws 32.11 and is organized as follows: I. Introduction. II. Background. III. Violations of NCAA Legislation as Determined by the Committee on Infractions. IV. Penalties Imposed by the Committee on Infractions. V. Issues Raised on Appeal. VI. Appellate Procedure. VII. Infractions Appeals Committee s Resolution of the Issues Raised on Appeal. VIII. Conclusion I. INTRODUCTION II. BACKGROUND This appeal by the former assistant men s basketball coach at the University of Louisville requested the NCAA Infractions Appeals Committee to overturn findings and the penalty assessed by the NCAA Committee on Infractions against him in Report No. 154. In this report the NCAA Infractions Appeals Committee addresses the issues raised by the former assistant men s basketball coach. On September 22, 1998, the Committee on Infractions issued Infractions Report No. 154, in which the committee found violations of NCAA legislation in the University of Louisville athletics program. On the basis of those findings, the Committee on Infractions determined that this was a major infractions case and imposed penalties accordingly. [Reference: September 28, 1998, edition of the NCAA News, page 12.] This case involved the men's basketball and women's volleyball programs at the University of Louisville and concerned violations of NCAA bylaws governing extra benefits, recruiting, financial aid, institutional control and ethical conduct.
Previously, in 1996, the Committee on Infractions placed the University of Louisville on probation for two years for violations in the men's basketball program. The violations in the 1996 case involved the provision of recruiting inducements to prospective student-athletes and extra benefits to enrolled studentathletes. The former assistant men s basketball coach was not involved in those infractions and was not named in any allegation or finding related to the case. The effective date of the penalties in the 1996 case was September 21, 1996. The violation described in Finding II-I-2 below occurred within five years after the starting date of the penalties in the previous case. As a result, the Committee on Infractions found that the provisions of NCAA Bylaw 19.6.2.3 regarding repeat violators applied to the present case. Because the present case involved the same types of violations as those that occurred in the 1996 case, and again involved the men's basketball program, the committee imposed a one-year ban on postseason competition in men's basketball and a three year show cause penalty against the former assistant men s basketball coach. It also reduced by one the number of permissible financial aid awards in men s basketball during each of the 1999-2000 and 2000-2001 academic years. After the Committee on Infractions issued its report, the former assistant men s basketball coach filed a timely Notice of Appeal on October 7, 1998. A written appeal was filed on November 12, 1998. The Committee on Infractions submitted its response on December 21, 1998. The former assistant men s basketball coach filed a rebuttal to the Committee on Infractions response on January 6, 1999. III. VIOLATIONS OF NCAA LEGISLATION AS DETERMINED BY THE COMMITTEE ON INFRACTIONS The violations found by the Committee on Infractions with respect to men s basketball were: [II- I.] EXTRA BENEFITS PROVIDED TO THE FATHER OF A STUDENT- ATHLETE. [NCAA BYLAW 16.12.2.1] An assistant men's basketball coach arranged for the father of a men's basketball student-athlete to reside at a local motel for approximately two months (September 18 through November 15, 1996) at a substantially discounted rate. The assistant men's basketball coach also prevented the studentathlete's father from being barred from his room for failure to pay his bill for the period of December 13 to 24, 1996. On December 24, the assistant coach provided his credit card to the motel as an assurance that the student-athlete's father, who was not in
Louisville at the time, would pay his outstanding balance of $551.71 upon his return. Specifically: [II-I-1] In September 1996, shortly after the student-athlete's initial enrollment at the university, the student-athlete's father moved to Louisville to be near his son. The student-athlete's father initially stayed with his son in his son's dormitory room, but moved into a local motel on September 18. The assistant coach contacted the motel's assistant manager and asked her to give the studentathlete's father a favorable rate. The student-athlete's father, who occupied a suite upon his initial arrival at the motel, received a discount during his stay. [II-I-2] In December 1996, the student-athlete's father fell behind on paying his room charges at the motel. On approximately December 24, the motel manager became concerned that the student-athlete's father had left town and threatened to have him locked out of his room because of his outstanding bill. In response to a message, the assistant coach telephoned the motel and discussed the student-athlete's father's situation with the motel manager. The assistant coach learned that the student-athlete's father had an outstanding bill of $551.71 that needed to be paid immediately. The assistant coach agreed to bring his credit card to the motel as an assurance that the student-athlete's father would settle his account. On December 24, the motel charged $551.71 to the assistant coach's credit card, and for the next seven weeks (through February 8, 1997), continued to charge an additional $2,349.39 to the assistant coach's credit card for the studentathlete's father's lodging. In April 1997, after the assistant coach disputed the charges, the credit card company credited the assistant coach's account and the student-athlete's father paid his bill with his own credit card. In addition, the Committee on Infractions found eight violations in the women s volleyball program. IV. PENALTIES IMPOSED BY THE COMMITTEE ON INFRACTIONS The Committee on Infractions adopted as its own three penalties self-imposed by the institution against the women s volleyball program. Because of a finding of lack of institutional control over the women's volleyball program and the institution's status as a repeat violator, the Committee on Infractions imposed the following additional penalties: 1. Public reprimand and censure.
2. Three years of probation beginning August 9, 1998. 3. Prohibition from participating in postseason competition in men's basketball during the 1998-99 season. 4. Reduction by one in the number of permissible financial aid awards in men's basketball during each of the 1999-2000 and 2000-01 academic years. 5. Requirement that the institution continue to develop a comprehensive athletics compliance education program, with annual reports to the committee during the period of probation. 6. Recertification of current athletics policies and practices. 7. Show-cause requirement for three years regarding the former assistant men's basketball coach. Further, the Committee on Infractions assessed several additional penalties against the women s volleyball program. V. ISSUES RAISED ON APPEAL In his written appeal, the former assistant men s basketball coach asserts that: VI. APPELLATE PROCEDURE 1. The show cause penalty imposed is excessive and inappropriate based upon the evidence and the circumstances and when compared with previous infraction case decisions. 2. The former assistant men s basketball coach was not provided adequate notice that the Committee on Infractions considered his alleged violations to be major violations. The procedural error affected the reliability of the information upon which the findings were based. 3. The findings that the former assistant men s basketball coach arranged for the student-athlete's father to receive a discount at the motel is contrary to the evidence and should be set aside. In considering the appeal of the former assistant men s basketball coach, the Infractions Appeals Committee reviewed the appellant s Notice of Appeal; the transcript of the October 9, 1998, hearing before the Committee on Infractions; a copy of the case summary prepared by the NCAA enforcement staff dated July 17, 1998; and the several submissions by the former assistant men s basketball coach and the Committee on Infractions referred to in Section II of this report.
The hearing on the appeal was held by the Infractions Appeals Committee on January 14, 1999, in Phoenix, AZ. The former assistant men s basketball coach, and his counsel appeared in person. Also present from the University of Louisville in connection with a related appeal were the University President, Athletic Director, Chair of the Athletics Council, University Counsel, two Associate Athletics Directors, and the institution s outside counsel. The chair of the Committee on Infractions, the committee member who chaired the October 9 hearing for the committee, and the director for the committee appeared on behalf of the Committee on Infractions. The hearing was conducted in accordance with procedures adopted by the Infractions Appeals Committee pursuant to NCAA legislation. One member of the Infractions Appeals Committee recused himself from this case. This member took no part in the consideration or decision of the case. VII. INFRACTIONS APPEALS COMMITTEE S RESOLUTION OF THE ISSUES RAISED ON APPEAL The former assistant men s basketball coach appealed the findings of violations II-I-1, II-I-2 and the imposition of the three year show cause penalty. We believe the findings of violations II-I-1 and II-I-2 are not clearly contrary to the evidence in this case. Indeed, the former assistant men s basketball coach did not challenge the findings in the hearing before the Infractions Appeals Committee. His appeal is based on the characterization of the violation of II-I-2 as major rather than secondary and the imposition of the three year show cause penalty, which he contends is excessive and inappropriate. The fact that violation II-I-2 occurred on December 24, 1997, and was found to be a major violation triggered the repeat violator rule in this case. We would note that there is ambiguity as to the standard by which to determine whether a violation is major or secondary. Bylaw 19.02.2 provides: 19.02.2 Types of Violations 19.02.2.1 Violation, Secondary. A secondary violation is one that provides only a limited recruiting or competitive advantage and that is isolated or inadvertent in nature. Repeated secondary violations by a member institution also may be identified by the group executive director for enforcement and eligibility appeals as a major violation. If the Committee on Infractions determines that repeated secondary violations have occurred and that the institution is not taking appropriate action to prevent such violations, a penalty appropriate for a major violation may be imposed.
19.02.2.2. Violation, Major. All violations other than secondary violations are major violations specifically including those that provide an extensive recruiting or competitive advantage. Some violations, like those found in this case, do not involve competitive or recruiting advantages, and in those cases, the exception contained in 19.02.2.1 is not wholly applicable. In those cases, the only language applicable from Bylaw 19.02.2.1 is whether the violation is "isolated or inadvertent in nature." That fact alone may not be dispositive. The Committee on Infractions, the Infractions Appeals Committee, and member institutions would find it helpful to have a clearer standard of what distinguishes major violations from secondary violations. In this case, we do not find that the Committee on Infractions abused its discretion in finding the violations to be major. In the present case, the former assistant men s basketball coach argued that he did not receive adequate notice that violation II-I-2 would be considered by the Committee on Infractions as a major violation. The former assistant men s basketball coach had been advised by representatives of the Conference office, experienced outside counsel, and the NCAA enforcement staff that the basketball violations were probably secondary. More importantly, because the NCAA enforcement staff asserted without challenge during the hearing before the Committee on Infractions that the basketball violations were secondary, the former assistant men s basketball coach reasonably relied on these representations. The former assistant men s basketball coach contends that this prevented him from making an adequate presentation to the Committee on Infractions that the violation was not major. We believe that the former assistant men s basketball coach was disadvantaged by the lack of adequate notice and relied to his detriment on the characterization that the violation would be treated as secondary. It is clear that a determination that a violation is major or secondary is within the purview of the Committee on Infractions, reversible only if the Infractions Appeals Committee finds that the Committee on Infractions has abused its discretion. [ Florida State University Public Infractions Appeals Committee Report, p. 8, October 1, 1996.] However, as we have noted in prior cases, we are concerned that adequate notice be given to a party as to whether a violation may be considered major. [University of Texas at El Paso Public Infractions Appeals Committee Report, p. 13, January 7, 1998.] When the enforcement staff characterizes a violation as secondary during a hearing before the Committee on Infractions, the Committee has an obligation to inform the party that they may find the violation to be major. The lack of adequate notice was a serious procedural error in this case which disadvantaged the former assistant men s basketball coach. It prevented him from advancing his analysis and arguments that the violations were secondary. Therefore we vacate the finding that violation II-I-2 is a major violation which compels the application of the repeat violator.rule.
VIII. CONCLUSION The Committee on Infractions in its response in this case raised an issue as to the appropriate scope of review by the Infractions Appeals Committee regarding repeat violator penalties. The Infractions Appeals Committee has made it clear in prior decisions that all penalties, including repeat violator penalties, are subject to the seven criteria generally applied by the Infractions Appeals Committee to determine whether penalties are appropriate and not excessive. [In another repeat violator case, University of Texas at El Paso, Public Infractions Appeals Committee Report at pages 19-20 (January 7, 1998), we wrote: "When reviewing an appeal of penalties assessed by the Committee on Infractions, the Infractions Appeals Committee looks at a combination of factors. These factors include the following: (1) the nature, number and seriousness of the violations, (2) the conduct and motive of the individuals involved in the violations, (3) what the institution has done to correct the problems, and its cooperation in the investigation, (4) the proportionality of the penalties, (5) the impact of the penalties on innocent student-athletes and coaches, and (6) the purpose of the NCAA enforcement program."] Bylaw 19.6.2.3.2 providing for minimum repeat violator penalties is discretionary and not mandatory [19.6.2.3.2 Repeat Violator Penalties. In addition to the penalties identified for major violation, the minimum penalty for a repeat violator...may include any or all of the following...(emphasis added).], subject to review by the Infractions Appeals Committee. Ordinarily, when a finding is vacated, the case is remanded to the Committee on Infractions for rehearing. The University, the former assistant men's basketball coach, and the chair of the Committee on Infractions all indicated that they would prefer that the case not be remanded for rehearing and that the Infractions Appeals Committee finally resolve the case. We therefore vacate the finding that violation II-I-2 is a major violation and do not remand. As a result the repeat violator rule is not applied. The former assistant men s basketball coach was disadvantaged by the lack of adequate notice and relied to his detriment on the characterization that the violation would be treated as secondary. With regard to the three-year show cause penalty imposed against the former assistant men s basketball coach, the Infractions Appeals Committee considered the nature of the violations, the absence of a finding regarding unethical conduct, his lack of involvement in any other infractions, the vacating of the finding that violation II-I-2 is a major violation and a comparison to other cases in which show cause penalties have been applied. This examination leads us to the conclusion that the penalty imposed, a three-year show cause penalty, is excessive. We, therefore, reduce it in length to the time of the penalty already served. NCAA Infractions Appeals Committee
Katherine E. Noble Terry Don Phillips Robert A. Stein, Acting Chair Marilyn V. Yarbrough