The NCAA Committee on Infractions (“Committee” or “Panel” or “COI”) recently issued its findings and found that The Ohio State University (“Institution” or “OSU”) committed violations of NCAA legislation.  The case involved the men’s swimming program at OSU and centered primarily on recruiting violations and the failure of the former head men’s swimming coach to promote an atmosphere of compliance.  COI considered this case through the cooperative summary disposition process, in which all parties agreed to the primary facts and violations as fully set forth in the summary disposition report (“SDR”). COI proposed additional penalties to OSU, which the Institution accepted. COI did not propose any additional penalties for the former head coach. Pursuant to NCAA Bylaw 19.6, neither party may appeal.

The Committee concluded that OSU committed the following violations:

Violations of NCAA Division I Manual Bylaws 13.2.1 (2015-16 and 2016-17), 13.2.1.1-(g) and 13.11.1 (2016-17) (Level II)

The Institution and NCAA enforcement staff agreed that between July and September 2016, members of the men’s swimming program violated recruiting legislation regarding the prospect. As a result, the prospect received approximately $758.00 in impermissible recruiting inducements and was involved in an impermissible tryout.

In July 2016, a then assistant men’s swimming coach (assistant coach) arranged for the prospect to live in an off-campus house with five (5) former and then men’s swimming student-athletes. Thereafter, the prospect lived in the house from September 1 to October 31, 2016. NCAA Bylaw 13.2.1 (2015-16 and 2016-17).

In September 2016, the prospect received approximately $758.00 in impermissible recruiting inducements.  During September 2016, men’s swimming student-athletes provided the prospect the access code to the men’s swimming varsity locker room, which the prospect used for approximately fifteen (15) days. Additionally, because of this access, the prospect obtained approximately six (6) free nutritional items from the athletics department’s Fuel Stop, a nutrition station located within the Institution’s aquatics facility and available only to student-athletes. NCAA Bylaws 13.2.1 and 13.2.1.1-(g) (2016-17).  During September 2016, the prospect had free use of the institution’s recreational facility for approximately one (1) month without purchasing the required membership. NCAA Bylaws 13.2.1 and 13.2.1.1-(g) (2016-17).  During September 2016, various men’s swimming student-athletes provided the prospect approximately twenty-five (25) free meals at an on-campus dining facility using allocations from their meal plans. NCAA Bylaws 13.2.1 and 13.2.1.1-(g) (2016-17).

In September 2016, the head coach impermissibly observed the prospect swimming when he instructed the prospect to show his butterfly technique to another prospective student-athlete, who was touring the Institution’s on-campus aquatics facility with the head coach. NCAA Bylaw 13.11.1 (2016-17).

Violations of NCAA Division I Manual Bylaw 11.1.1.1 (2015-16 and 2016-17) (Level II)

The Institution, head coach and NCAA enforcement staff agreed that from July through September 30, 2016, the head coach is presumed responsible for the violations detailed above and did not rebut the presumption. The head coach failed to demonstrate that he promoted an atmosphere for compliance regarding the prospect’s living arrangements and presence on campus.

During July 2016, the head coach was included on an electronic group message sent by an assistant swimming coach to members of the men’s swimming team seeking off-campus housing for the prospect. Further, on or about August 28, 2016, the head coach received an email from the Institution’s swim club regarding the prospect’s intention to move to the institution’s locale prior to his enrollment in order to train with the institution’s swim club. However, at no point prior to the prospect’s arrival on campus did the head coach follow up with the prospect or seek guidance from compliance to ensure the prospect’s living arrangements were permissible under NCAA legislation. NCAA Bylaw 11.1.1.1 (2015-16 and 2016-17).

On or about September 2, 2016, the head coach met with the prospect at the Institution’s aquatics facility but failed to notify the compliance office of the prospect’s presence on campus. Thereafter, the head coach again saw the prospect in the aquatics facility and, as noted above, instructed him to demonstrate his butterfly technique to another men’s swimming prospective student-athlete. However, the head coach again failed to notify the compliance office of the prospect’s presence on campus or seek guidance regarding whether his observation of the prospect swimming was a violation of NCAA legislation. NCAA Bylaw 11.1.1.1 (2015-16 and 2016-17).

From August 30 through September 30, 2016, the head coach failed to ensure that the prospect’s living arrangements and on-campus activities complied with NCAA legislation. As a result, and as outlined above, the prospect received approximately $758.00 in impermissible recruiting inducements. NCAA Bylaw 11.1.1.1 (2015-16 and 2016-17).

Aggravating and Mitigating Factors in accordance with NCAA Bylaws 19.9.3 and 19.9.4

Aggravating Factors for OSU

A history of Level I, Level II or major violations.  NCAA Bylaw 19.9.3-(b).

 Person of authority condoned, participated in or negligently disregarded the violation(s) or related wrongful conduct. NCAA Bylaw 19.9.3-(h).

Mitigating Factors for OSU

 Prompt self-detection and self-disclosure of the violation(s). NCAA Bylaw 19.9.4-(a).

Prompt acknowledgement of the violation, acceptance of responsibility and imposition of meaningful corrective measures and/or penalties. NCAA Bylaw 19.9.4-(b).

An established history of self-reporting Level III or secondary violations. NCAA Bylaw 19.9.4-(d).

The violations were unintentional, limited in scope and represent a deviation from otherwise compliant practices. NCAA Bylaw 19.9.4-(g).

Aggravating Factors for the Head Coach

Persons of authority condoned, participated in or negligently disregarded the violation or related wrongful conduct. NCAA Bylaw 19.9.3-(h).

Mitigating Factors for the Head Coach

Prompt acknowledgment of the violation and acceptance of responsibility. NCAA Bylaw 19.9.4-(b).

The violations were unintentional, limited in scope and represent a deviation from otherwise compliant practices. NCAA Bylaw 19.9.4-(g).

The absence of prior conclusions of Level I, Level II or major violations committed by the individual. NCAA Bylaw 19.9.4-(h).

As a result of the foregoing, the Committee penalized OSU as follows:

1.  Public reprimand and censure.

2.  OSU suspended off-campus recruiting for a two-week period that began on October 24, 2016.

3.  OSU shall pay a $5,000 fine.

4.  OSU suspended the head coach from coaching activities for two contests on November 11 and 12, 2016.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.