CRAWFORD | Looking at Louisville's avenues for appeal to the NCA - WDRB 41 Louisville News

CRAWFORD | Looking at Louisville's avenues for appeal to the NCAA

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AP photo. AP photo.
The Courier-Journal front page from Feb. 6, 1999, reporting Louisville's victory in an NCAA appeal. (Courier-Journal archive) The Courier-Journal front page from Feb. 6, 1999, reporting Louisville's victory in an NCAA appeal. (Courier-Journal archive)

LOUISVILLE, Ky. (WDRB) -- They say you can't beat City Hall. But can you beat the NCAA? That's the question for University of Louisville officials and attorneys as they appeal an NCAA Committee on Infractions decision that levied penalties the university described as "over the top" against its men's basketball program.

The committee handed U of L coach Rick Pitino a five-game suspension and ordered the program to vacate every win between 2010 and 2014 that included players deemed ineligible for their activities with women provided by Katina Powell and paid by Andre McGee to perform striptease shows and sexual services in the men's basketball dorm during recruiting visits.

All together, U of L would have to vacate 123 victories, including the 2013 NCAA championship and the 2012 Final Four, if the penalties stand.

Is there a chance on appeal? Could U of L convince the NCAA's Infractions Appeals Committee to take the unprecedented step of overturning the unprecedented vacating of a national championship?

Something to consider: Louisville has won a major NCAA appeal before. After the Louisville basketball team was handed a postseason ban in 1999 when it was found guilty of recruiting violations as a repeat violator, the school appealed on a procedural point -- saying it hadn't been informed that it was facing a major violation. And the school won.

It was the first time an appeals committee ever had overturned a postseason ban. This time, having the committee on infractions decision overturned could prove more difficult. Still, U of L has a sliver of hope. Anytime the committee on infractions has to break with precedent, it’s subject to correction by the appeals committee.

And in this case, the committee on infractions said, it had no precedent. So let’s take a look at this appeal, and how things could go. First of all, about a third of appeals get some kind of reduction in penalty. Most, however, are only small reductions.

THE APPEALS COMMITTEE AND PROCESS

Appeals must be on one of four grounds: A factual finding was contrary to the evidence; the facts found by the panel did not constitute a violation of NCAA rules; a procedural error led to the finding or conclusion or that the penalties were excessive. Louisville likely will bring one argument on the first and fourth of those points.

The appeals committee can then affirm, reverse, vacate or remand a committee’s decisions or actions in whole or in part. The standard for the appeals committee to overturn a decision is that the hearing panel abused its discretion. Moreover, the appeals committee may affirm a penalty for any reason in the record (emphasis mine). This means that the appeals committee need not agree with the infractions committee’s entire rationale in a given decision, if it agrees with just a single part.

From a timeframe standpoint, the school has 15 days from last Thursday to notify the NCAA of its intent to appeal (in writing). After being notified that the appeals committee has received its notice, the school has 30 days to file a written appeal. Once the appeals committee has that, it has 30 days to file a written response. Within 14 days of getting that, the university may submit a rebuttal. Within 10 days of the final rebuttal, the enforcement staff may submit a statement regarding “perceived new information, errors, misstatements and omissions relating to the initial submission, the committee appeals advocate responses and/or rebuttal documents.”

If the school wishes, oral arguments may be heard after the enforcement staff input. After that, everyone waits for a decision, which for NCAA purposes, is final.

Now, to get on with some of the key points:

LEVEL III vs. LEVEL I

Get used to this terminology. It is the hinge on which the appeal rests. So what does it mean?

A Level III infraction is described as a breach of conduct. These violations are limited and isolated in nature. They can be inadvertent. With regard to extra benefits, they are of small monetary value and do not create more than minimal advantages. Multiple Level III violations can become, if lumped together, an overall Level II or Level I violation

U of L argues that because of the dollar amounts involved, each instance of McGee paying Powell for a woman to perform sexual services for a recruit is a Level III violation. The university argues that the advantage gained, in the end, was minimal, and actually McGee’s actions created a situation in which the program was hurt, not helped, from a recruiting standpoint.

In its response to the NCAA Notice of Allegations, U of L argued, “The institution believes that Allegation #1 is a Level 1 finding. However, it believes that each subparagraph of Allegation #1 is a Level III violation. While the institution acknowledges that the nature of these violations is appalling, the value of the benefit provided is not a large amount. Case precedent indicates that many recent violations processed as Level III had benefits with a similar or even greater value.”

U of L then included a chart with dollar figures of Level III violations from other schools.

A Level I infraction is more serious. It is described as a severe breach of conduct. It is an offense that, according to NCAA bylaws, “seriously undermines or threatens the NCAA Collegiate Model.” These would include any offenses that provide – or attempt to provide – a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit.

Among some determining factors listed which make an offense Level I in the NCAA bylaws are:

(d) Individual unethical or dishonest conduct, regardless of whether the underlying institutional violations are considered Level I;

(f) Cash payment or other benefits provided by a coach, administrator or representative of the institution’s athletics interests intended to secure, or which resulted in, enrollment of a prospective student athlete;

(h) Intentional violations or reckless indifference to the NCAA Constitution and bylaws.

The NCAA argues that each of those prior paragraphs applies in the case of McGee’s actions.

Both U of L and the NCAA agree that, when taken together, McGee’s actions amount to a Level I institutional violation. That’s not in dispute. U of L merely wants each individual count to be recorded as a Level III, the NCAA says each is a Level I.

So why does that matter? Here’s why. If each is seen as a Level III, a committee is more likely to realize what Louisville consultant Chuck Smrt said on Thursday, that none of these single incidents would’ve led to season-long eligibility loss had they been discovered and dealt with individually at the time they happened.

And, in fact, it’s difficult to dispute that. Regardless of the nature of these violations, the recruits and players themselves, who were unaware that the women with whom they were consorting had been paid for that, likely would have had to only pay restitution and sit out a few games, if even that.

All this, of course, in significant because if each violation is seen as a Level III offense, the NCAA is less likely to strike down the eligibility of each player involved, and thereby not likely to vacate victories won by participation of those athletes. In most normal extra benefits cases, this understanding guides the ruling.

The NCAA’s argument is different. First, the committee on infractions noted that this is unlike any case ever to come before the committee. It is not, and has never been in the NCAA’s view, a normal extra benefits case. The committee on infractions agreed that other cases (Miami in 2013, Alabama in 2002) were similar, but none of those involved an institution’s staff member paying for sex acts for recruits. The committee saw that as an aggravating factor.

And because this case sets a precedent, the committee was faced with a question: Is an institution paying for a prostitute for a recruit going to be a Level I, II or III offense? (A Level II offense is a substantial breach of conduct, not quite at the level of a Level I offense.)

NCAA enforcement staff disagreed with Louisville’s rationale, both in the original Notice of Allegations, and in its rebuttal to Louisville’s response, saying, “Regardless of the values assigned in each violation, the enforcement staff asserts that a staff member arranging and funding adult entertainers and escorts to provide prospects and student-athletes adult entertainment is clearly Level I behavior and much more severe than the examples of free coaching, meals, lodging, golf, etc., that the university cites in support of its position. Even when viewed independently (of the enforcement staff’s argument on prostitution), the individual paragraphs in Allegation No. 1 satisfy each element of the Level I definition in Bylaw 19.1.1 and are more severe than Level III violations.”

The committee on infractions sided with NCAA enforcement staff. Its reasoning: “The violations were serious, intentional, numerous and occurred over multiple years.”

Media accounts have focused on the committee’s use of the word “repugnant” twice within its final infractions report, and asserted that the committee simply ratcheted up the penalty because it felt the acts were distasteful.

That was, undoubtedly, part of the reasoning. It’s right in the committee on infractions report. Noting that U of L “submitted that each individual violation was only Level III,” the committee responded, “It made this argument based solely upon the assigned monetary value of the striptease dances and sex acts. However, the panel considers other factors besides monetary value in determining the level of violations. In this instance, the panel did not ascertain an exact value of the activities. The nature of the violations themselves, without more, elevates them to Level I. The types of activities that occurred in this case were repugnant and threaten the integrity of the NCAA Collegiate Model, regardless of any precise dollar value assigned to them. Further, although the former operations director did not submit to interviews, and therefore did not speak to his motivation, the panel concludes that he arranged the activities in an attempt to convince the prospects to enroll at the institution. Thus, his actions were intended to provide a substantial or extensive recruiting advantage to the institution. Each one of these individual violations is Level I, and they are Level I collectively.”

Because the committee based its enhancement of these violations on more than just the “repugnant” nature of the offenses, but on other items listen in the criteria for Level I violations, it’s going to be difficult task for U of L on this point, given that the appeals committee can affirm this decision “for any reason in the record,” even if it disagrees with other reasons.

Moreover, on the subject of vacating records – which will be the bulk of U of L’s appeal efforts – the committee didn’t base its rationale on previous committee on infractions decisions. Instead, it listed as rationale not only two NCAA bylaws but two previous appeals committee decisions (Memphis in 2010 and Syracuse in 2015).

WHAT ABOUT PRECEDENT?

There’s a lot of talk about precedent where the NCAA is concerned, but the record indicates that it isn’t the overriding factor that it’s made out to be. The NCAA has heard so many cases on so many things, and some would argue has ruled so inconsistently for so long, that the committee on infractions can find precedent for just about anything it wants to do.

The NCAA sets in its bylaws prescribed penalties for violations of the various levels, but it allows for enhanced penalties (and in this case, the vacating of records is an enhanced penalty) if there are aggravating factors – and gives a list, which ends with the ambiguous “other facts warranting a higher penalty range,” which pretty well can include anything the committee on infractions wants.

In addition, there’s a bylaw that allows the committee to depart from the prescribed penalties. Entitled “Departure from Level I and Level II Core Penalties,” Bylaw 19.11.6 says, “Upon a finding of extenuating circumstances, the hearing panel may depart from the core penalties . . . provided the panel explains in its decision the basis for its prescription of core penalties different from those set forth.”

In other words, as ESPN analyst Jay Bilas said in a Twitter discussion with me and others on Sunday morning, “As odd as it sounds, precedent has never really mattered to NCAA in enforcement. The COI does whatever it wants whenever it wants.”

For further example about the nature of precedent and NCAA rulings, see the discussion of Louisville coach Rick Pitino below.

Still, this is the task for U of L: To argue persuasively enough that the committee on infractions issued a harsh institutional penalty based primarily on independent individual actions. The committee did not find U of L as an institution guilty of a failure to monitor or lack of institutional control. Because off that, many commentators – including this one – believed that the institution would not be subject to vacating records.

In fact, because the NCAA declined to charge the university as a whole with those more serious violations, it acknowledged that the university’s culpability in McGee’s actions was of a less-serious nature than if it had turned up knowledge or participation in his violations. In a sense, the NCAA rolled this vacating of records through the back door, because it could not prove that the university or its athletics leadership in any way contributed to or otherwise bore fault for the actions of McGee and Powell on its campus.

WHAT ABOUT PITINO?

The Louisville head basketball coach will also bring an appeal of his five-game suspension, and he may have more of a case than the university as a whole. As with the institutional violation above, the NCAA declined to charge Pitino with the more serious accusation of failure to monitor his program. Instead, it found that he failed to monitor McGee.

In a year-and-a-half investigation, with access to Pitino’s phone records and electronic communication and those of his assistant coaches and other U of L personnel, after nearly 100 interviews, the NCAA found no evidence that Rick Pitino knew of these events, even indirectly. Nor did he turn a blind eye to them. The NCAA acknowledged in his own report that multiple players and coaches said that had he found out of these events, he would have, in the words of one witness quoted by the committee on infractions, “flipped out.”

The NCAA enforcement staff, in fact, did not even make the case that Pitino “should have known.” It merely argued that Pitino did not monitor McGee closely enough.

When you hire an outside company to run a dormitory, there is an underlying assumption that the company will keep accurate records, follow procedures, and run the building in accordance with campus rules, which dovetail in nearly every instance with NCAA rules. In some cases with regard to this dorm, U of L did not follow its own policy. Without question, oversight was lacking. Whether that is Pitino’s job to provide it is a matter of question, but certainly, under NCAA rules, it is his responsibility.

Pitino wouldn’t have been happy with a five-game suspension in any event. It would’ve been appealed if only to make the statements that coaches can’t know and should not be held responsible for the actions of their players 24/7, especially if the players actively work to conceal illicit activity from him.

Because of the terms of the suspension, which begins before the start of the first ACC game and runs through the fifth, Pitino also could miss a couple of regular-season games, depending on how the schedule is arranged. A year ago, a suspension of this kind would have meant that he’d have missed the non-conference game against Indiana on Dec. 31.

His appeal is likely to fall on deaf ears, though it’s possible the length of the suspension could be reduced, and almost certain that, as in the case of Jim Boeheim, it will be moved to the start of the season instead of the start of the ACC season. The appeals committee said suspending Boeheim for conference games was unduly harsh. It should be no different with Pitino.

CONCLUSION

The task ahead of U of L, given the standard set for appeals, is a difficult one. The better approach, emerging from several cases recently, is to take up a more adversarial position on the front end of NCAA issues, not the back end. Louisville cooperated with the NCAA from the moment it learned of the allegations it faced, and seemed to get no credit for it.

Regardless, this appeal hangs on U of L’s ability to convince the appeals committee that this is at heart an extra benefits case and nothing else. It will need to remind the committee that it has not viewed strippers, hostesses or other adult-inducements as reason for enhanced penalties in the past. And it will hope to convince the committee that the penalties are excessive given the ultimate small benefit to the program of the violations and their small value in actuality.

If it can make that case, the committee will have a path to overturn the vacation of records, and may see a path to reducing the four-year period of probation and four additional lost scholarships in addition to the ones the university has already forfeited.

I have argued that even if it were to win an appeal, Louisville would lose in terms of public relations and the message it sends its own community and the nation. However, every person and institution has the right to appeal. And Louisville’s argument will be an interesting one.

It's reasonable to expect that Louisville would get something on appeal. It’s a longshot that it would get what it really is after – the preservation of the 2013 NCAA championship banner.

There is no authority beyond the committee on infractions when it comes to NCAA issues. Louisville could sue, but it’s difficult to see the courts – which have strongly supported rights of voluntary associations like the NCAA to discipline their own members – siding with the school in this event. Federal courts will have no interests in the case on its merits. Their primary interest is in whether the NCAA followed its own procedures, which in this case, it appears to have done.

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