CRAWFORD | Outlining arguments Louisville will make in today's N - WDRB 41 Louisville News

CRAWFORD | Outlining arguments Louisville will make in today's NCAA appeals hearing

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WDRB photo by Eric Crawford. WDRB photo by Eric Crawford.

LOUISVILLE, Ky. (WDRB) – If the University of Louisville’s final appeal to the NCAA on sanctions handed down for the prostitutes-for-recruits scandal in the men’s basketball program is to be successful, it will be because the NCAA’s Committee on Infractions was arrogant, or lazy, or both.

Officials and attorneys from U of L, including interim president Greg Postel and interim athletic director Vince Tyra, will make oral arguments before the NCAA’s Infractions Appeals Committee during a hearing in Atlanta Wednesday that is closed to the public and the media.

U of L is appealing the NCAA’s instruction to vacate the 2013 NCAA Championship, which would be the first-ever vacated in NCAA Division I men’s basketball, and the 2012 Final Four appearance. It also is appealing the financial penalties associated with those vacated NCAA accomplishments, an amount of money that could run into the millions of dollars.

Former U of L head coach Rick Pitino is appealing a five-game NCAA suspension on his own. Former director of basketball operations Andre McGee, whom the NCAA found to have orchestrated the violations, has been found guilty of major violations and did not appeal. Neither is expected to be a part of Wednesday's proceedings.

The crux of U of L’s argument, as presented in its response to an NCAA filing: “The University acknowledges that McGee’s conduct was abhorrent, and that it warranted serious institutional penalties, most of which the University does not contest on appeal. Rather, the question before the IAC is whether the student-athletes and prospects who were unwillingly ‘subjected to’ McGee’s schemes should be deemed so tainted by McGee’s misconduct that every competition in which they participated for the remainder of their collegiate careers should be vacated, and all of the revenues the University received from those games should be forfeited.”

U of L will argue on Wednesday that the NCAA set up a system of vacating wins and imposing financial penalties over the course of many years, and that its infractions committee abandoned those structures when it came to handing down penalties for Louisville.

“The COI does not dispute that no prior case, ever, has imposed vacation because of the participation of student-athletes who did so little wrong, received so little benefit or advantage, and were almost certainly eligible for reinstatement without loss of competition,” U of L wrote to the appeals committee in its final response on the matter. “The COI simply argues that “there is no requirement” that it consult “past cases” at all when imposing penalties. . . . That is emphatically not the way the infractions system works, and the IAC should not countenance the COI’s refusal to abide by its own precedent in this manner.”

Moreover, U of L will argue that the infractions committee did not take into account the self-imposed penalties the university assessed, nor the level of cooperation the university offered. It has chosen to focus on those arguments, because they have been used by the appeals committee to overturn prior decisions.

In this case, the infractions committee says it did take into account Louisville’s level of cooperation and its self-imposed penalties. But U of L is expected to argue that the NCAA did not, in this case, “show it’s work,” and explain how it took into account U of L’s cooperation, or the penalties it imposed on itself.

The school also will argue that the penalties it received were too stiff, and that the infractions committee did not consider the impact they would have on the institution, again arguing that the committee erred in not explicitly explaining how it took this question into account, either in the original ruling or even in various appeals responses.

“At bottom, the penalty the COI imposed is simply unfair,” U of L asserts in its latest response. “It wipes away the collegiate careers of numerous student-athletes because they were unwillingly drawn into McGee’s schemes; ignores the University’s exemplary efforts to investigate and redress McGee’s misconduct; and imposes one of the most severe sanctions possible—the vacation of a Division I NCAA Men’s Basketball Championship, two Final Four appearances, and multiple seasons of competition— because of the participation of a handful of student-athletes who did little wrong. Precedent does not support this approach. Neither does common sense or fundamental fairness. The COI’s grossly excessive vacation and financial penalties should be reversed.”

In several instances in U of L’s situation, it is on ground over which the appeals committee has admonished the infractions committee before.

To win an appeal, a school must show that a ruling is clearly contrary to the evidence presented, or that the facts presented don’t constitute a violation, or that there was a procedural error and, if not for the error, the committee wouldn’t have made the ruling it made, or finally, that in prescribing a penalty, the committee abused its discretion.

Almost all of Louisville’s findings dwell on the final of those criteria, though some venture into the ruling being contrary to evidence.

The difficulty in winning such arguments is a single sentence contained in the NCAA Division I Manual. The sentence reads: “The Infractions Appeals Committee may affirm a penalty for any reason in the record.”

That is to say, the IAC may find some actions undertaken by the infractions committee to be wrong, but it can yet affirm its decisions based on other actions or reasoning in the record.

Regardless, the NCAA says that the ruling of this appeals body is, “final, binding and conclusive, and shall not be subject to further review by any governance body.”

The cast of characters from U of L has changed significantly. Postel attended the last in-person hearing, as did then athletic director Tom Jurich and then-basketball coach Rick Pitino. Now, both Pitino and Jurich are out of jobs and Vince Tyra has stepped into the athletic director's role.

U of L will be given a period of time to make its arguments to the committee. A representative from the infractions committee will be allowed to make a statement. In some cases, enforcement personnel are allowed to speak if they feel they need to make corrections in what has been said. Regardless, there is no decision by the committee on the day of the hearing. It is to provide a written decision at a later date, first to the school, then to the public a day later.

There is no timetable for that decision.

On Wednesday, however, the table is set for U of L to try one, last time to save its 2013 NCAA championship.

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