On September 29, 2015, the Committee on Infractions (“COI”) issued its decision involving infractions committed by Southern Methodist University (“SMU” or “Institution”), in which the COI found violations of NCAA legislation in the men’s basketball and men’s golf programs. The case centered on violations of NCAA bylaws governing recruiting, academic fraud, unethical conduct, and head coach responsibility. In its written appeal, SMU asserted that the imposition of a postseason ban for the 2015-16 academic year in men’s golf, specifically as it applies to individual student-athletes, the imposition of scholarship reductions in men’s golf and men’s basketball, the imposition of recruiting restrictions in men’s basketball and men’s golf, and the vacation of wins during the 2013-14 academic year in men’s basketball was an abuse of discretion.

In reviewing this case, the NCAA Division I Infractions Appeals Committee (“Committee”) may overturn factual findings and conclusions that one or more violations occurred only if:

a. The hearing panel’s finding clearly is contrary to the evidence presented to the panel;  

b. The facts found by the hearing panel do not constitute a violation of the NCAA constitution and bylaws; or

c. There was a procedural error and but for the error, the hearing panel would not have made the finding or conclusion. [Bylaw 19.10.1.2]

“A showing that there was some information that might have supported a contrary result will not be sufficient to warrant setting aside a finding nor will a showing that such information might have outweighed the information on which the committee based a finding. The Infractions Appeals Committee . . . will set aside a finding only on a showing that information that might have supported a contrary result clearly outweighed the information on which the Committee on Infractions  based the finding.” (University of Mississippi Infractions Appeals Committee Public Report, May 1, 1995, Page No. 10)

The hearing panel determines the credibility of the evidence.

A penalty prescribed by COI, including determinations regarding the existence and weighing of any aggravating or mitigating factors, shall not be set aside on appeal except on a showing by the appealing party that the hearing panel abused its discretion. [Bylaw 19.10.1.1]

As the Committee stated in the Alabama State University case:

“…we conclude that an abuse of discretion in the imposition of a penalty occurs if the penalty: (1) was not based on a correct legal standard or was based on a misapprehension of the underlying substantive legal principles; (2) was based on a clearly erroneous factual finding; (3) failed to consider and weigh material factors; (4) was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational; or (5) was based in significant part on one or more irrelevant or improper factors.” [Alabama State University Infractions Appeals Committee Public Report, June 30, 2009, Page No. 23]

In the present case, while not directly appealing any finding of fact or conclusions by the hearing panel, SMU looks to several of the prongs above to argue that the financial penalties as they extend beyond the probationary period, the imposition of visit limitations in addition to those self-imposed, the postseason ban extension to individual participants, and the vacation of wins penalty were an abuse of discretion.

Specifically, the institution argued that COI co-mingled aggravating factors by applying individual aggravators to the Institution; failed to adequately account for self- imposed penalties and other institutional mitigating factors, arbitrarily extended financial penalties beyond the probationary period, and failed to limit the postseason ban in golf to the team only consistent with previous impositions of postseason bans involving championships in individual sports. Additionally, the Institution alleges that COI failed to appropriately aggregate the underlying institutional golf violations, which should have resulted in those violations only rising to Level II. Finally, the Institution argues that it was not provided adequate notice of the potential for a vacation of wins penalty involving a student-athlete who was granted immunity and that the immunity provided should have eliminated any competition while ineligible by the student-athlete.

The Committee, based on a review of the record before it, finds none of these arguments persuasive in meeting the burden of showing abuse of discretion by the hearing panel. As noted by the COI, it was within the COI’s discretion to take the series of Level II violations presented in men’s golf, on their own showing an intent to provide more than a minimal but less than a substantial or extensive recruiting, competitive or other advantage, and aggregating them into a Level I violation where the record clearly shows that in combination, a substantial or extensive recruiting, competitive or other advantage was provided. As such, the Committee does not need to determine whether it would be an abuse of discretion to arbitrarily aggregate disparate Level III violations in a manner that would result in multiple classifications of Level II violations and then re-aggregate them to result in a Level I determination.

Further, the Committee finds adequate evidence in the record to suggest that COI appropriately separated analyses for the institution and involved individuals in weighing aggravating and mitigating factors in determining violation level and penalty structure. Additionally, once penalty structure is determined without indication of abuse of discretion, the Committee was hesitant to delineate any penalty within the appropriate matrix options as an abuse of discretion absent a clearly arbitrary imposition in light of consistent prior application to the contrary. There is nothing in the record to suggest an arbitrary imposition regarding the scholarship reductions, recruiting restrictions, and application of the postseason ban to both the team and individual participants. As to the latter, a postseason ban, absent clear legislative intent to the contrary, is by design a penalty for preventing postseason competition for all team participants. While COI may find extraordinary circumstances in a particular individual sport instance to limit the impact of a postseason ban to particular student-athletes, there appears no clear intent in the current penalty structure to separate team from individual sport impact. As such, a review of precedent under the previous penalty structure provides little weight in determining a present abuse of discretion.

Finally, there is adequate evidence in the record to support the proposition reached by the hearing panel that the granting of individual immunity does not eliminate that an ineligible athlete competed on behalf of the institution, but merely that the individual would not be subject to the normal application of the student-athlete reinstatement withholding guidelines. And, even if there was a procedural error resulting in lack of specific notice, which is not clearly evident in the record, such error would not have resulted in the hearing panel reaching a different conclusion as to the individual’s eligibility during the games played that served as the basis for the vacation of records penalty.

Accordingly, the Committee upheld the penalties.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.comThis e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it .