CRAWFORD | A deeper look at U of L's NCAA appeal - 6 takeaways
WDRB's Eric Crawford looks at U of L's appeal in detail, and offers some thoughts.
LOUISVILLE, Ky. (WDRB) – The University of Louisville’s appeal to the NCAA, its last chance to save the 2013 NCAA championship and 2012 Final Four, has been sent to the organization's Infractions Appeals Committee. On Friday, the document was made public, with predictable reaction.
Louisville fans are scouring it for signs of hope that a banner might be saved. Nationally, it passed without a great deal of notice. ESPN's Jay Bilas, asked for a comment by a fan on Twitter, said simply, “No team should ever lose a banner. It is a useless sanction that unduly harms the innocent.”
Later when challenged on the NCAA finding that Louisville’s 2013 team used ineligible players, he responded, “No player was ineligible based upon value of benefit. NCAA is saying three were ineligible due to nature of benefit, not the value of it.”
Otherwise nationally, there was nothing like the outcry you heard when U of L made its original response, nor when it responded to the NCAA’s sanctions. That’s a good thing for the university.
The bad? The release of this appeal washed away the school’s fall sports media day in a tide of press attention for the men’s basketball NCAA saga. It also knocked a wonderful story about Kyle Kuric meeting a local brain cancer sufferer for a game of Horse.
There are good stories to be told at U of L, in athletics and otherwise, that are being overshadowed now by this chase to keep the 2013 NCAA championship banner.
It’s not a futile chase. There’s always a chance. But it does come at a cost, especially if the percentages play out and the effort comes up short.
Nonetheless, after a couple of days to digest the appeal, I offer these thoughts, in no particular order.
1). THE CAR AND STRIPPERS COMPARISON. Probably more than any other passage I shared from the appeal on Friday, none got more reaction than this sentence: “It would be absurd, and grossly disproportionate, to hold that an individual who receives an unwanted and minor benefit during recruitment – say, a car ride worth $150 – should have his entire collegiate record nullified if that conduct is discovered years later.”
Immediately, the indignation of the Twittersphere was ignited, and there’s no indignation like Twitter indignation.
Here’s the problem. That isn’t so much the university’s position. It was the university pointing out the NCAA’s position throughout its history.
At Miami, a booster paid for escorts and strippers for players – in amounts far exceeding what is alleged at U of L – but the NCAA, treated those “extra benefits” just the same as it did rides on the booster’s jet skis or dinners at fancy restaurant. The level of violation wasn’t enhanced because strippers were involved.
(I know, there were prostitutes involved at U of L – and we will get to that discussion in a moment -- but this particular line was referring to a player being declared retroactively ineligible because of a strip tease dance, not sex.)
So, this particular line wasn’t so much U of L saying, “This is just like a ride in a car,” as much as it was U of L saying, “You have always treated this the same as a ride in a car.”
As usual, the Twitter indignation was over the top.
2). WHAT ABOUT PRECEDENT? To me, the biggest question at issue here was whether the Committee on Infractions had proper reason to raise the level of violations based on the graphic, sexual nature of the violations.
And what surprised me the most about this appeal is that the question is never met head on. U of L goes to great pains – citing more than 30 past NCAA cases – to show where this ruling deviates from precedent. But it never goes right at the committee’s assertion that this case has no precedent.
That’s a subject the Infractions Appeals Committee at least will have to consider. No, we’ve never seen a case with a member of the men’s basketball administrative staff paying for prostitutes for recruits and players. That alone gave the COI an opening to use lack of precedent for enhanced penalties. What I’m not sure of is how often the COI has done this – enhanced the penalties beyond their prima facie scope because of the nature of the infractions.
Regardless, U of L must have come to the determination that it could win its arguments based on the framework that the COI put in place, leaving the question of whether it had the authority to establish new precedent aside.
It’s not the only thing U of L’s appeal put to the side.
3). WHAT ABOUT THE 2013-14 and 2014-15 SEASONS? While not outright abandoning those two seasons to their NCAA fate, U of L does not expressly argue for the reinstatement of the victories or NCAA Tournament appearances, including one trip to the Sweet 16 (in 2014) and one to the Elite Eight (in 2015).
Those two seasons represent 58 victories, and depending on the athletes implicated, could represent the vacating of some school records for individuals. We won’t know until we see the media guides season after next.
Now, some of the arguments U of L made about the financial penalties (giving up of NCAA Tournament revenue) could also be applied to these two seasons, and the school’s overall assertion that the vacating of records was too excessive for the penalties involved certainly can be applied to these two seasons – but those arguments are made specifically for the seasons ending in 2012 and 2013, not these two.
It would appear, for that reason, that at least those seasons likely will be wiped from the record books.
4). LOUISVILLE’S STRONGEST ARGUMENT. This is subjective, but it appears to me that the strong point U of L makes is in the second section of its appeal, when it argues that the COI did not consider U of L’s self-imposed penalties, corrective measures and cooperation when it assigned its penalties. The infractions report did mention all of those things, but the committee is instructed to consider them, and to take them into account when making its recommendations. As U of L points out, there’s little evidence that this committee did.
If there’s one thing the IAC is watching closely it’s to make sure that the committee on infractions follows its own rules. If there’s an inkling that it didn’t, the appeals committee may reduce a penalty based on that alone.
It seemed to me that U of L’s arguments was at its strongest here. And in its next point that the committee did not adequately demonstrate its rationale for the financial penalties.
The committee simply argued that once it had deemed any player who received a benefit – particularly benefits that the committee enhanced because of their nature – the games were vacated and all tournament money earned should be returned.
It’s not exactly that simple, where the NCAA has been concerned over the years. U of L called this a “reversible error” and noted that not only did the committee not consider factors the appeals committee has historically said it needs to consider when determining financial penalties; namely whether the athletes or university had reason to know of their ineligibility (the university, according to the evidence presented here, did not know, and athletes had no idea women were being paid to have sex with them), but that it did not demonstrate through evidence why they should have known.
It referred to two prior cases to show how this worked. In 2010, when the NCAA penalized Memphis after Derek Rose’s SAT score was invalidated, it said a financial penalty was appropriate because Rose had gotten official correspondence notifying him that his SAT score was invalid. On the other hand, in a 1991 case involving Tulane University, the NCAA ruled that a financial penalty should be reversed because a player “’had no reason to know that a violation of NCAA legislation had taken place’ when a coach unilaterally deposited more than $4,000 in ‘wages’ into his account.”
Moreover, U of L argued that the Committee on Infractions failed several other required factors, including the nature of the violations, the contributions by ineligible athletes to the success of the team and the manner in which the university investigated and corrected the circumstances giving rise to the violations – among other factors.
This gets into some fine legal distinctions here – and not particularly compelling reading – but I will introduce it into the record here, so to speak. Because the bylaws say the committee “may” impose financial penalties instead of that they “must” impose them if ineligible players are involved, U of L correctly argues “[The COI] simply recited the requirements in the bylaws. But those cannot be a sufficient basis to justify the COI’s exercise of discretion to impose a financial penalty, which necessarily requires more than a finding that the mandatory prerequisites for the penalties are satisfied.”
Wake up. It’s boring, but effective. I’d be surprised if some, if not all, of the financial penalties in this ruling aren’t reduced, or eliminated entirely, based on this. We’ll see what how the Committee on Infractions responds.
5). WHAT ABOUT THE BANNER? This is a tougher question, because it involves a national perception question. If the NCAA reverses ground and lets U of L keep its 2013 NCAA banner, it’ll be depicted nationally as going easy on prostitution for recruits.
One problem I think a lot of institutions have in 2017 is that they don’t realize they’re not just involved in arguments, but that they’re also making public statements. They are, in fact, involved in politics as much as they are their present endeavors.
So what might be an effective legal argument in an appeal might strike an awfully sour note in the public. This is why this is such a difficult situation for Louisville, because no matter how many mea culpas you offer (and Louisville spent considerable time at the beginning of this appeal stressing how distasteful and wrong all of this stuff was), when you make your arguments you’re seen as defending a minimizing the behavior.
There are times when I’m not sure U of L has weighed all of those factors. (But U of L isn’t alone. Media organizations make the same mistakes when they get into public squabbles with politicians. You might win your point, but you lose because you’ve gotten involved in the political process instead of just covering it. There’s always a statement beyond the statement that you make.)
So on this, U of L argues one technicality, and makes another shaky claim that’s based, yes, on the evidence the NCAA gathered, but maybe not on the totality of the truth.
For starters, the NCAA offered limited immunity to a player for his testimony, then apparently has determined that player to have been ineligible based on having sex with a prostitute, and uses that ineligibility to punish the program.
U of L says, in essence, “Wait, you promised him immunity. Now you declare him ineligible, and wipe all of his records and accomplishments from the books. What exactly, then, did you make him immune from?”
The school has a point. NCAA bylaws provide that if offered immunity, a player shouldn’t be ruled ineligible based on information he shared. In this case, however, to make the case that the NCAA can’t use the information it obtained to punish the program if that information included confirmation of violations seems to fall flat.
I don’t think the appeals committee will bite.
U of L also argued that the committee on infractions didn’t adequately make its case against one player from the 2012-13 team, saying his ineligibility was disputed by the school and the committee never stated its finding about the player explicitly or identified “the record evidence on which it based that conclusion.”
It further argues that the value of the “benefit” the player received was only $100, or “within the threshold sufficient to obtain reinstatement without loss of competition.”
With regard to a third player, U of L argues much the same, that the ineligibility was in dispute, but the committee on infractions never really resolved it.
All of these arguments are well and good, but if the appeals committee accepts the infraction’s committee’s authority to set new precedent with this case, and upgrade the level of violation, it may make little difference.
6). FINAL ODDS AND ENDS. We’ve not yet seen the transcripts of U of L’s NCAA hearing, if any exist, but we got a glimpse into them in this appeal. Most notably, Louisville athletic director Tom Jurich told the committee on infractions that banning the 2015-16 team from postseason play was, “the greatest and toughest thing I have ever had to do in 32 years as an A.D. . . . (but) we made the mistake, we knew it, we looked at it, and we felt we were the ones that were responsible to fix it.”
Also in that hearing, a member of the enforcement staff affirmed that U of L and NCAA investigators “worked cooperatively in a thorough and proven fashion throughout” and added that Jurich is “committed to compliance” and “wants his staff to do what they can to help this enforcement staff,” calling Jurich and his staff, “really easy to work with.”
An ACC representative who also was a former NCAA staffer told the committee that the ACC “view(s) Louisville’s compliance efforts in a really high regard.”
U of L also said in its appeal that it had “disassociated [redacted] student athletes who had not cooperated with the NCAA’s investigation.”
Who those athletes are, and how many there are, would be interesting to know. To disassociate from them would mean that they were no longer permitted to come to games using university-provided tickets, could not give to the program financially or, in general, have any kind of personal relationship with the program.
Yet to surface is Rick Pitino’s own appeal, filed separately from the university’s. An open records request for the document was answered with word that U of L doesn’t have it. So we wait. In the meantime, the NCAA has 30 days to respond to what U of L has submitted. And the process goes on.
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