Professional Documents
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UofL NCAA Appeal Written Response REDACTED 17-383
UofL NCAA Appeal Written Response REDACTED 17-383
UofL NCAA Appeal Written Response REDACTED 17-383
00527
IN THE
DIVISION I INFRACTIONS APPEALS COMMITTEE
OF THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION
UNIVERSITY OF LOUISVILLE
On Appeal from
Committee on Infractions Decision No. 473
August 9, 2017
TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
BACKGROUND .......................................................................................................4
A. McGees Conduct.............................................................................4
ARGUMENT .......................................................................................................... 21
CONCLUSION........................................................................................................65
ii
INTRODUCTION
The violations uncovered in this case are reprehensible and inexcusable. For
over three years, Andre McGee, a staff member on the University of Louisville
prospects, many of them minors, in a dorm room and produce strippers without
warning. He would then invite the prospects to watch striptease dances, hand them
cash to convey to the dancers, and offer them sex. Some of the young men
reported discomfort and shock; several refused McGees offers. But for
approximately three and a half years, McGee persisted in involving new and
it reacted with disgust, horror and embarrassment. COI Hearing Tr. at 15:22-23.
And it took swift action. It informed the NCAA enforcement staff and opened an
extensive joint investigation. Upon verifying what had occurred, the University
self-imposed the most severe institutional penalties available: banning its mens
scholarships and recruiting opportunities, and paying a fine. The University then
never occur again. The University is deeply embarrassed and apologizes to all of
1
these young men and to the entire community for these events. As President Postel
more draconian set of punishments. In addition to punishing the institution for this
conduct, it found that the student-athletesthe very same minors whom the COI
McGees actions, and that every one of their victories should be vacated and every
dollar received from NCAA tournament games in which they participated should
be disgorged. That cannot be right. The student-athletes were not culpable for
McGees conduct, and they received no meaningful benefit or advantage from it.
Had the University known of what McGee did, it would have quickly obtained
their reinstatement
athlete remaining on the team when the violations came to light. It is unjust, and
athletic careers because of parties that they had no part in creating and no choice in
attending. And it is unquestionably unfair to the many team members who had no
The COI further erred by issuing these enormous penalties without weighing
several critical factors. The Infractions Appeals Committee (IAC) has repeatedly
said that the COI must assign an institutions corrective and cooperative efforts
2
and self-imposed punishments substantial weight; the COI ignored them entirely.
The IAC has also made clear that the COI must point to supporting record
penalty. The COI failed to do that, too. And the COI must weigh the impact of its
punishments to ensure they are proportionate to the severity of the violations. Yet
the COI did not even try to determine the magnitude of penalties it imposed or
dollars in financial penalties and the vacation of 123 wins, including two Final
Finally, and at a bare minimum, the COI clearly erred by imposing vacation
and financial penalties for the 2011-12 and 2012-13 seasons. None of
events was properly deemed ineligible. left the room before any
one student who later competed in the 2011-12 and 2012-13 seasons engaged in a
sex act. Even if these student-athletes were technically ineligible, they would
unquestionably have been reinstated. If nothing else, the IAC should reverse the
3
BACKGROUND
A. McGees Conduct
mens basketball program in January 2010. COI Op. at 4. In April 2012 he was
named director of basketball operations. Id. For much of that time McGee resided
Minardi Hall. Id. at 7. No one else on the basketball teams staff knew of these
events. Many student-athletes living in Minardi Hall never learned of them either.
Id. at 10. McGee instead held them mainly for visiting prospects, who had no prior
knowledge that they would occur, and whom he afterwards instructed to keep this
The basic program of the shows was the same. At night, McGee would
invite a visiting prospect into a dormitory room. COI Op. at 8. Then, without
warning, strippers would appear from the hallway or a side room. See, e.g.,
Interview Tr. at 20 (There was like a room where they ... came out of.). At
4
Sometimes McGee would provide the prospects cash to tip the strippers. Id. He
would then encourage the prospects to have sex with the women. Id.
Interview Tr. at 31 (We were both kind of shocked at first, like, were kind
kind of awkward; Im not someone that really enjoys something like that . . . and
I didnt like how that was happening. Interview Tr. at 34. Another prospect,
whom McGee handed a condom and directed into a room to have sex, ultimately
admitted he was nervous, d[id]nt want to do it, and left. Interview Tr. at
Most of the prospects watched passively throughout these events, and left
when the dances ended. Some were offered sex but declined. COI Op. at 8.
Others attempted to decline, but were coaxed by McGee into accepting. Id. at 9.
McGee continued holding these events roughly four to five times per year
until shortly after he left the University in April 2014. Id. at 7, 10. Out of roughly
200 official and unofficial visits by prospects during this period, McGee organized
5
B. The Joint Investigation And The Universitys Corrective Actions
In August 2015, the University received a tip about McGees actions from a
media organization. The organization stated that it was about to publish a book
activities. Id. at 2-3. The University promptly notified NCAA enforcement staff
athletes, 20 prospects who did not enroll, and 19 current or former staff members.
text messages, visitor logs, and the available parts of Powells journal. Id. at I-12
to -13. It tried to reconstruct how McGee had gotten strippers into Minardi Hall
without detection. Id. at II-11 to -15. It ran down numerous leads to figure out
where he had procured the money he used for tips. Id. at I-13, II-4. See COI
testify to nonetheless cooperate with the investigation. See University Resp. at I-2,
I-12 to -13. In addition, the University requested materials from the publisher of
Powells book on behalf of the NCAA, and assembled a chart for the enforcement
6
staff detailing the name, date, and host of each prospective student-athletes visit to
basketball teamranked 13th in the nation that season, and widely considered a
competition. University Resp. at I-13 to -14; see COI Hearing Tr. at 397:23-
Since then, the University has taken further corrective actions to prevent
found had not cooperated with the joint investigation. COI Hearing Tr. at 395:4-
security at Minardi Hall and required additional training of residence hall staff.
See COI Hearing Tr. at 92:5-93:22; University Resp. at III-4 to -5. And it
7
implemented monthly monitoring reports in each athletics program in order to
ensure that each teams coaching staff is kept informed of team developments.
against the University, McGee, head coach Rick Pitino, and a former mens
basketball program assistant. The enforcement staff alleged that McGee had
involved 20 individuals in his scheme over the course of three and a half years.
NOA at 1. Seven of those individuals later played for the mens basketball team.
See University Resp. at III-12 to -13.1 Based on a rough estimate of the monetary
value of a striptease dance, an offer of sex, a sex act, and the tips, the
See NOA at 2-3 (Allegations 1.b, 1.d, 1.j); University Resp. at III-12 to -13.
The NOA did not allege that any of these individuals engaged in sex acts; indeed,
the 2013-14 and 2014-15 seasons had been made participants in McGees scheme
See
NOA at 2-3 (Allegations 1.e, 1.f, 1.j, 1.m); University Resp. at III-13. It found that
offered sex and refused, and he too testified about what occurred under a grant of
1 (Oct. 7, 2015).
University be assigned two mitigating factors. It noted that the University had
9
recruiting limitations. NOA at 10. It also found that the University had [a]n
In its response to the NOA, the University agreed with the large majority of
appalling and inexcusable, and that the University was deeply embarrassed by
exemplary behavior from institutional staff members while their sons (and
daughters) are visiting or enrolled in the University, and McGee did not meet those
The University disagreed with the NOA, however, on three specific points
that he had been present in a room for five minutes, but quickly left before any
show began. See Interview Tr. at 9-10 (Q: [D]id you ever see women
performing striptease shows or anything like that? A: [At] [o]ne party . . . I think
it was heading that way but I wasnt there long enough to actually be a part of it;
[I] walked in there for about five minutes, stuck around and just left.). Other
10
individuals suggested have been present for longer, but elsewhere
-37.2
Second, the University concluded that had not attended one of the
attending only one dance, in 2012. Id. at II-28 to -29. The sole
evidence that attended a second one came from another student-athlete who
Third, the University disputed the dollar values the NOA assigned to some
of the benefits. In several cases the enforcement staff assigned different values
to the same actfor instance, valuing a dance at $175 in one case and $125 in
anotherbased on the fact that Powell had notated them differently in her journal.
Id. at II-3; see NOA at 1-3. As the University explained, these differences were
arbitrary, and the identical benefits should be valued similarly. University Resp. at
2
Compare Interview Tr. at 64 (On my visit, came in for about 30
or 40 minutes.), with id. at 26, 42 (I remember came in for a
second; . . . just peeked head in and just see what was going on.);
and Interview Tr. at 13 (Q: [W]hen was there, was there for
the whole show? A: Yes.), with id. at 15 (I want to honestly say that
probably really left before it ended.).
11
II-1. It therefore determined, among other things, that had
received benefits valued at $125, rather than $175, as the enforcement staff
Finally, the University noted that at the time the misconduct was revealed,
the mens basketball team. Id. at III-19. It explained that shortly after learning of
involvement valued at
$205the University filed a petition for reinstatement. Id. The NCAA Student-
The COI issued its decision on June 15, 2017. Consistent with the parties
agreement, the committee found that McGees conduct had occurred and that it
recruiting inducements, and extra benefits. COI Op. at 14-15. The COI added that
this conduct was repugnant. Id. at 15. Particularly objectionable, in its view,
12
The COI did not resolve any of the parties factual disagreements. It
observed that, [w]ith a few minor exceptions, the University agreed that the acts
Id. at 2. Nor did the COI resolve the disagreement over the value of
particular benefits. It stated simply that the University disputed the values the
escort placed on some of the activities, but that in the committees view it was not
The COI then classified the case as Level I-Aggravated.3 As a basis for this
classification, the committee simply listed several aggravating factors, and stated
that the number and nature of the aggravating factors outweigh the mitigating
factors. Id. at 22. The committee did not discuss or weigh the Universitys
addition to the sanctions the institution had already self-imposed, the COI issued a
additional four scholarships. Id. at 23. And it banned all prospective mens
any campus dorm or other institution-owned property for four years. Id.
3
Because the incidents occurred both before and after the implementation of the
current penalty structure, the COI applied the former penalty structure, which it
deemed less stringent. COI Op. at 22.
13
The COI went further. Notwithstanding its repeated observation that the
prospects were minors whom McGee had surprise[d] with these events, the
student-athletes. First, it vacated the record of every game in which the student-
and prospects who eventually enrolled at the institution, and that [s]ome of the
prospects were minors. Id. at 26. These violations, it continued, were serious,
intentional, numerous and occurred over multiple years. Id. Accordingly, the COI
found that [b]y his actions, the former operations director rendered those student-
athletes and prospects ineligible for competition, and it vacated every one of their
Second, the COI required the University to forfeit all of the revenues
associated with every NCAA tournament game in which those same student-
those students knew or should have known that their actions were contrary to
NCAA legislation. Id. at 22. It therefore directed the University to return to the
NCAA all of the monies it ha[d] received to date through conference revenue
sharing for its appearances in the 2012, 2013, 2014 and 2015 NCAA Mens
14
Basketball Tournaments in which those student-athletes participated, as well as
Although the COI did not identify or weigh the magnitude of either of these
penalties, both would have a severe impact on the University, its basketball
scheme whatever. The financial penalty would require the University to forfeit
would require the mens basketball team to erase 108 regular season and
conference tournament wins and 15 NCAA wins from its record. See University
Resp. at III-13. Those wins would include the Universitys 2012 and 2013 Final
Four appearances and its 2013 NCAA championshipthe first Division I mens
SUMMARY OF ARGUMENT
The University fully agrees with the COI that McGee committed egregious
misconduct. And it does not dispute in the slightest that his actions warranted
serious penalties for McGee as well as the University. That is why the University
banned its own highly ranked team from the 2015-16 NCAA tournament,
cooperated with the investigation, and promptly paid a fine. And it is why the
15
University accepted without challenge most of the penalties the COI imposed,
including four years of probation, a public reprimand and censure, the revocation
opportunities.
The COI abused its discretion, however, by going further, and imposing the
harsh penalties of vacation and financial forfeiture based on the involvement of the
time McGee invited them to stop by a room in Minardi Hall, did not engage in
manipulation of these young men that made his own misconduct especially
reprehensible. Whats more, the COI issued those penalties without even
considering several factors the IAC has made clear must be weighed before
I. The bylaws provide that the COI may order vacation and financial
athletes. Accordingly, the COI has long imposed these sanctions only where it
finds that the student-athletes themselves were culpable for some misconduct or
16
received some meaningful benefit. This follows from the purposes of ineligibility,
play. And it is the only practice that makes sense: Otherwise, a student-athletes
entire collegiate career could be wiped away for misconduct in which he played no
meaningful role, from which he received nothing of value, and for which he could
imposed sweeping vacation and financial penalties based on the fact that McGee
had manipulated students, many of them prospects and minors, in his scheme. But
Moreover, they received almost nothing of value from it; indeed, the COI has
involving strippers. And each of those student-athletes could easily have been
reinstated, as one of them in fact was when McGees misconduct finally came to
light.
handful of precedents to support its decision, but all imposed vacation and
financial penalties where, and only where, student-athletes were highly culpable
and had received valuable benefits. The COI also relied on the IACs seven-factor
test for identifying when vacation is likely, but that test has never been applied to
17
impose vacation in the absence of some substantial underlying culpability or
II. The COI further abused its discretion by imposing its sweeping vacation
and financial penalties without considering several factors the IAC has
emphatically instructed the COI it must consider before issuing sanctions. For
decades, the IAC has said that the COI must accord substantial weight to a
misconduct to light. And when it did, it imposed the most severe penalty
other sanctions. The COI ignored these ameliorative efforts entirely, and did not
even attempt to weigh them before imposing further severe sanctions. That was
unquestionably error.
the findings necessary to issue a financial penalty. It did not point to any evidence
in the record to support the counterintuitive assertion that high school prospects
should have known that their eligibility was permanently tainted by McGees
disgusting conduct. Nor did it apply any of the factors this committee identified in
18
Purdue University (IAC 2000)or any other factors, for that matterto justify the
Last, the COI erred by failing to weigh the impact its penalties would have
on the University. It did not acknowledge that its financial penalty would require
III. At a minimum, the COI was wrong to impose vacation and financial
who competed in these seasons after allegedly attending McGees events should
have been deemed ineligible: left the sole event attended before a
striptease began, and the COI did not find otherwise; only
properly found present at one such event, and that benefit was near the
for their participation were grossly disproportionate. None of them engaged in sex,
19
and all would easily have been reinstated. The COI abused its discretion by
imposing the harshest available penalties for the seasons in which they competed.
STANDARD OF REVIEW
The IAC may set aside a penalty prescribed by the [COI], including
mitigating factors, upon a finding that the COI abused its discretion. Bylaw
(4) was based on a clear error of judgment, such that the imposition was
arbitrary, capricious, or irrational; or
20
ARGUMENT
The bylaws provide that the COI may vacate team victories or require the
student-athlete. And both are discretionary: Before imposing either penalty, the
IAC has repeatedly made clear, the COI must identify considerations that make it
appropriate to erase each victory and claw back each dollar of revenue associated
received only a negligible benefit, or could easily have had his eligibility restored,
the COI has deemed these penalties inappropriate. That longstanding practice
makes good sense. It would be illogical, and profoundly unfair, to wipe away the
21
entirety of a student-athletes collegiate career for violations which he played little
Here, the COI sharply departed from those bedrock principles. It found that
the institution was rightly required to pay a serious penalty as a result. But in
deciding whether to order vacation and financial penalties, the COI failed to
consider the other half of the equation: whether the student-athletes whom McGee
brought unwittingly into a dorm room, many while minors and prospects, and
justify the forfeiture of the entirety of their collegiate records and the disgorgement
22
substantive legal principles, failed to consider and weigh material factors, and
1. The NCAA has repeatedly made clear that the purpose of ineligibility is to
The Division I Council has been explicit on this point. In 2005, for example, it
Div. I Proposal 2009-67 (amending Bylaw 15.3.3.1); see also Div. I Proposal
have culpability). The council has repeatedly eliminated ineligibility for offenses
for which a student-athlete did not receive a benefit and little or no recruiting or
23
competitive advantage occurred. Div. I Proposal 1999-26 (amending Bylaws
13.13, 14.1.6.1); see Div. I Proposal 2000-99; Div. I Proposal 1999-98; Div. I
Proposal 1998-110; Div. I Proposal 1997-23; Div. I Proposal 1997-7. And it has
often said that violations should not affect eligibility where the student-athlete
[lacks] control over the situation. Div. I Proposal 2007-27 (amending Bylaw
evident on the face of the bylaws themselves, which frequently tie ineligibility to
some wrongdoing or benefit on the part of the student-athlete. Those rules deem
dozens of offenses [d]e [m]inimisand thus provide that they have no effect on
the bylaws provide that recruiting inducements and extra benefits have no effect on
eligibility where the monetary value is too low to confer a meaningful benefita
threshold the Division I Council previously set at $100, but recently increased to
24
$200 for non-autonomous institutions. See Bylaws at p. x, 13.2.1, 16.11.2.1; see
2. It stands to reason, then, that the COI has long made these same
appropriate. Both penalties turn on the fact that a student-athlete competed while
ineligible. The COI has thus consistently declined to impose these penalties
where that ineligibility is more technical than substantialthat is, where the
violation that disqualified the student-athlete entailed conduct for which he bears
25
approximately 200 student-athletes by failing to monitor its textbook distribution
institutions textbook distribution system for their own gain. Id. The remainder,
Id. at 4 (emphasis added). Even though both sets of student-athletes received the
same benefits, stemming from the same institutional misconduct, and were
technically rendered ineligible as a result, the COI found vacation proper only for
vacation and financial penalties in connection with the 1999-2000 mens basketball
season after three players competed while ineligible after conspir[ing] to commit
academic fraud (and other amateurism violations). Id. at 9, 25-27. But the COI
2001-02 seasons, id. at 27, during which the relatives and friends of three other
complimentary tickets for admission to mens basketball games. Id. at 24. The
COI thought the harsh vacation and financial penalties inappropriate even though
the violations were major and the extra benefits resulted in the three players
26
during the entire 2001-02 season, id. at 18 (emphasis added), where there was no
evidence that the players knew of or personally benefitted from those tickets.
vacation not warranted for 492 student-athletes who had received a benefit worth
and sports involved, the fact that the violations occurred over a lengthy period of
time, and an admitted failure to monitor. Id. at 3. But the student-athletes bore
limited responsibility: they had received the benefit inadvertent[ly], and neither
resold the items they received nor provided them to others. Id. Those
prescribe the vacation penalty for an institution that improperly awarded $42,224
State University (2017), the COI decline[d] to apply the [vacation] penalty to
which they were completely unaware. Id. at 6-7. And in Georgia Institute of
Technology (2011), the COI imposed a vacation penalty for one student-athlete
27
who had received extra benefits, but refused to impose vacation for another
because the committee could not make conclusions regarding his culpability in
Furthermore, the COI has made clear that a vacation penalty is inappropriate
where the value of the benefit the student-athlete received was not meaningful. As
the COI has recently and repeatedly explained, it imposes vacation where student-
12 n.11 (emphasis added); see Saint Peters University (2016), at 12 n.6 (same).
Thus, it has found vacation proper where student-athletes received benefits ranging
from $400, see University of Hawaii, Manoa (2015), to $12,200, see Lamar
involving less. In University of Memphis (2009), for instance, the COI declined to
$170 and $230. Id. at 2, 5. And in Coastal Carolina University (2008), it held that
4
See Saint Peters University (2016), at 4 ($824 for a single student-athlete);
Syracuse University (2015) ($8,335 divided among 5 student-athletes); Wichita
State University (2015) ($7,500 divided among 21 student-athletes). In Saint
Peters University, the COI indicated that one student-athlete received a benefit as
low as $80. It is clear, however, that the committee did not rely on this lower-end
value. The COI has expressly stated that a benefit worth under $100 ... generally
does not trigger ineligibility. Coastal Carolina University (2008), at 6; see Bylaw
16.01.1.1. And the COIs discussion of similar monetary values would be
meaningless if such a de minimis value were sufficient.
28
vacation was unwarranted in a case involving both serious intentional violations
and the direct involvement of a coach because the payment to [the] student-
Finally, the COI has indicated that vacation and financial penalties are
Id. at 6, 15. The committee explained that the benefits gained by the student-
athletes were easily addressed through repayment for the cost of the benefits. Id.
at 15. Unlike recent cases in which the committee has required vacation of
records, it explained, this case did not involve[] academic improprieties that had
In sum, the bylaws and the precedents have been consistent: The
29
received any meaningful benefit, and where reinstatement would follow as a matter
benefit during recruitmentsay, a car ride worth $150should have his entire
collegiate record nullified if that conduct is discovered years later. Indeed, the
disgorgement for violations for which the student-athlete was neither culpable nor
correct, and the COI cannot depart from it. See Syracuse University (IAC 2015), at
6-7.
penalties for every game in which seven student-athletes played over four years,
including the teams 2012 and 2013 Final Four appearances and its 2013 NCAA
McGee, not the culpability of the student-athletes or the value of the benefits they
received. That was clear error. The very reasons the COI rightly deemed McGees
30
involved. Those student-athletes obtained no meaningful benefit or competitive
advantage from McGees scheme. And it is almost certain that these individuals
would have been reinstated had the institution learned of McGees carefully
1. The COIs own findings make clear that the prospects and student-athletes
whom McGee unwittingly involved in his schemes bore little culpability. As the
committee explained, [n]one of these individuals had prior knowledge that the
activities would occur, and none ... expected strippers and prostitutes. COI
McGees actions. Id. Some outright refused McGees offers of sex. Id. at 8.
McGee manipulated others into accepting them: He sent one individual into a
room with a condom, and coaxed another into receiving oral sex after the
prospect had attempted to le[ave] the room. Id. at 9-10. Many of the prospects
simply sat in the room watching the dances and then left.
Furthermore, the COI repeatedly emphasized that most of the young men
involved were minorssome as young as 16. Id. at 1, 14, 26. They relied on
kind of shocked at first, like, were kind of, likewere teenagers.). The NCAA
bylaws themselves recognize that athletics and coaching staff must be teachers of
young people and set a positive example so that those younger and more pliable
31
are not negatively influenced. Bylaw 19.01.5 (emphasis added); see also New
the mens basketball staff took advantage of the young mans ignorance).
COI precedent makes clear that acts of this nature cannot justify a vacation
or disgorgement penalty. Time and again the COI has held that violations of which
them cannot be the basis for such penalties. See University of Alabama,
where the underlying violations are serious and justify a steep penalty on the part
to impose vacation even where the underlying violation is major and involved a
Tuscaloosa (2009), at 9.
The COI, however, turned this principle on its head. Rather than treating the
principal justification for vacation was that McGee had arranged [the] striptease
dances and acts of prostitution for enrolled student-athletes and prospects ...
32
[s]ome of [whom] were minors, and that those violations were serious,
intentional, numerous and occurred over multiple years. COI Op. at 26. That is
neither arranged the events nor inten[ded] to commit the violations, and who
profoundly unfair to use the perpetrators own manipulation of these young men as
a basis for vacating their records. No precedent supports that approach, and the
athletes received. It is plain that McGees conduct did not give the student-athletes
any competitive advantage. The COI also did not findand the enforcement staff
did not claimthat it convinced any prospects to attend the University. To the
contrary, multiple prospects reported their unease with McGees actions and were
What is more, the monetary value of the benefits was insubstantial, and
did not involve similar monetary values to past precedents involving vacation.
Lamar University (2016), at 12 n.11; see Saint Peters University (2016), at 12 n.6.
Most of the cases the COI has cited as similar have involved monetary values
33
stretching into the thousands; the lowest value to date is $400. See University of
Hawaii, Manoa (2015). In this case, in contrast, the average monetary value was
approximately $250, and many individual values were as low as $100 or $125.
Not only are these values unprecedentedly low, but they are also generally
below the current threshold for restitution set by the Division I Council. As
previously noted, the Bylaws provide that the eligibility of [an] individual shall
not be affected by the receipt of benefits worth $100 or less, provided they are
repaid to charity after the institution has knowledge of the receipt of the
6 (stating that a payment under $100 ... generally does not trigger ineligibility).
In April, the council deemed that amount out-of-date and increased it to $200,
other words, many of the student-athletes received benefits at values below what
benefit should not even trigger ineligibility, Coast Carolina University (2008), at
6, let alone constitute the sort of meaningful advantage necessary to merit vacation.
34
Nor did the student-athletes receive any substantial non-monetary benefit.
strippers, the COI has never concluded that students received benefits substantial
for example, the COI found that a booster had regularly entertained student-
athletes over the course of seven years by paying for their . . . access to private
rooms at Miami-area nightclubs and strip clubs. Id. at 9. Although the COI
Likewise, in University of Alabama, Tuscaloosa (2002), the COI did not impose
prospects and current student-athletes [o]n several occasions over two years by
the COI declined to issue these penalties even though an institutions athletics
plain that the unwanted benefits foisted on the basketball teams prospects were
35
The COI attempted to distinguish these precedents on the ground that the
magnitude of the offense in this case was greater. COI Op. at 14. It is not clear
(describing numerous deplorable and severe violations that occurred over seven
years and culminated in the boosters criminal conviction). But, in any event, it is
plain that the magnitude of the student-athletes conduct is not more substantial
than in prior cases. In University of Miami, the booster not only entertained
student-athletes at a strip club but gave them gifts of cash, clothing and other
asked the booster for the gifts and favors. Id. at 9 (emphasis added). Nothing
3. Finally, the vacation and financial penalties were improper because the
have been, had the University known of McGees scheme. There is no doubt on
this point. When the University learned of McGees conduct, it promptly sought
student-athletes who had accepted a sex act before competing on behalf of the
36
University, and the benefits received were valued at $205the Student-
competition. Id.
without loss of competition, too. The reinstatement committee looks to the very
received, and the advantage [the student-athlete] gained from itin determining
competition is proper for inducements worth $500 or less. See id. at 15. Just as in
There the IAC refused to overturn a vacation penalty because there was no
guarantee that the student-athlete would have been reinstated, and because the
37
institution was aware of the individuals potential ineligibility but deci[ded] to
allow [him] to participate anyway. Id. at 14. It would be unfair, the IAC
explained, to allow an institution to make that decision, and then, when it did not
turn out well, to return and try to claim exemption from any penalty. Id. Here,
would have been reinstated. And the University did not deci[de] to allow any of
knew nothing of McGees covert behavior. What would be unfair here is to hold
The COI offered two rationales for imposing vacation and financial penalties
1. The COI claimed that the penalties it imposed in this case were
Memphis (IAC 2010), and Purdue University (IAC 2000). COI Op. at 22, 26.
That is simply not so. In each of these cases, the COI found that the student-
athletes both were complicit in misconduct and reaped substantial benefits from it.
Take Syracuse University (2015). There, the COI imposed and the IAC
participated in academic fraud. Id. at 30, 32-34, 37-40. None of these individuals
could possibly object, as here, that they were unwilling participants in a scheme
from which they gained negligible benefit. Moreover, in that caseunlike here
the COI found a lack of institutional control and the active participation of at least
half a dozen staff members of the mens basketball team over the course of a
decade. See id. at 1-3, 62. In no sense was the Syracuse decision, which hinged on
The facts of Purdue University (1999) are equally inapposite. In that case,
the COI imposed vacation and financial penalties because an assistant coach had
Purdue. Id. at 7. The student-athlete accepted the gift and made no effort to
repay it. Id. at 7-8. It is difficult to imagine a circumstance in which the value of
the benefit was more clear or the student-athletes participation more culpable.
decision. There, the COI vacated the records of a student-athlete who had himself
ineligible. Id. at 12-13. The COI expressly found that vacation was warranted
39
because of the competitive advantage this violation conferred on the institution.
Id. at 17-18. In contrast, the COI declined to impose vacation or financial penalties
for numerous other individuals who had received impermissible extra benefits with
minor benefits do not. The student-athletes here are plainly analogous to the latter
group, right down to the dollar values. The penalties based on their ineligibility
cannot be sustained.
2. The COI also claimed that vacation was warranted in this case because
[t]he violations were serious, intentional, numerous and occurred over multiple
years. COI Op. at 26. By using this language, the COI appeared to be invoking
the non-exhaustive list of seven factors the IAC has developed to identify cases in
Technology (IAC 2012), at 14-15; see also COI Internal Operating Procedures 4-
15-4.5 To the extent, however, that the COI believed that the presence of these
5
The seven factors are:
1. Academic fraud;
2. Serious intentional violations;
3. Direct involvement of a coach or high-ranking school administrator;
40
factors could justify vacation even in the absence of culpability or meaningful
As the IAC has repeatedly made clear, the seven factors listed in Georgia
a vacation penalty. The IAC clarified in Syracuse University (IAC 2015) that
[t]hese factors are not requirements to identify when a vacation of wins penalty is
an increased likelihood that the penalty will be imposed. Id. The ultimate
Consistent with that guidance, the COI has repeatedly held that vacation is
unwarranted even though multiple of these factors are present, if there is a more
fundamental reason for declining to impose the penalty such as lack of culpability
(2009), for example, the COI expressly found that two of the seven factors were
present for more than 200 student-athletes: (1) there were a large number of
athlete textbook distribution system. Id. at 8. Nonetheless, the COI found that
vacation was warranted only for the student-athletes who were themselves
the COI explained that it could have imposed a vacation of records because the
case involved two of the seven factors: (1) serious intentional violations and (2)
do so because the payment to [the] student-athlete ... was under $100, which
The COI cannot now abandon that approach, and treat the presence of a
handful of the Georgia Tech factors as dispositive. Imposing vacation with respect
inherently excessive and [an] abuse of [the COIs] discretion. Georgia Institute
Indeed, it should be noted that the seven factors themselves are used
42
severe culpability on the part of the student-athlete, a substantial unfair advantage
6) are typically egregious enough to merit vacation because the institution itself
have received. See, e.g., Georgia Institute of Technology (IAC 2012), at 15;
This case involves none of those things. There was no academic misconduct
the students or prospects; no finding that the institution itself lacked control or
failed to monitor. The IAC has rejected prior efforts to subject an institution and
its student-athletes to harsh penalties based on the conduct of a staff member who
engaged in actions that lacked any nexus to the institutions conduct. University
of Hawaii, Manoa (IAC 2016) at 5-6 (reversing postseason ban and other penalties
43
that hinged in part on misconduct by the teams director of compliance). The
COIs stark departure from precedent should be rejected, and its vacation and
The COI committed a second set of errors that also, independently warrants
reversal of the committees vacation and financial penalties. The IAC has
repeatedly instructed the COI that it must set forth in its analysis the evaluation
and balancing of the factors which this committee has identified as relevant in
setting penalties. University of Memphis (IAC 2010), at 15-16; see Florida State
2010), at 16.
self-imposed penaltiescritical considerations to which the IAC has said the COI
errors was prejudicial, and each entailed a fail[ure] to consider and weigh material
stretching back decades, the IAC has consistently and emphatically held that a
(IAC 1995), at 15); see also University of Oklahoma (IAC 2008), at 7; University
of Michigan (IAC 2003), at 10; Howard University (IAC 2002), at 31. Because
[t]he NCAA enforcement process does not include many of the features of a
judicial system, such as a subpoena power and testimony under oath, the COI is
required in many instances to rely on the good faith, assistance and cooperation of
45
Applying this rule, the IAC has reversed multiple prior penalties on the
ground that the COI did not acknowledge or discuss the nature or extent of the
institutions cooperation, nor specify what weight, if any, it was given. University
of Oklahoma (IAC 2008), at 7-8; see Alabama State University (IAC 2009), at 25;
cooperative efforts, University of Michigan (IAC 2003), at 10, or did not accord
Georgia (IAC 2005), at 28 (same). Moreover, the IAC has repeatedly explained
that the COI cannot satisfy this requirement by making a conclusory assertion that
such a factor was considered, Howard University (IAC 2002), at 31, or offering a
(IAC 2010), at 11. It must expressly analyze the role that these elements played,
conduct, it promptly informed the NCAA. University Resp. at I-1 to -2. It then
worked tirelessly to advance the enforcement staffs investigation and hold itself
46
former student-athletes and staff members who had no obligation to testify to
nonetheless cooperate with the NCAA. University Resp. at I-2, I-12 to -13. It
engaged in extensive reviews of the visitor logs at Minardi Hall to determine how
McGee had gotten strippers into the building. Id. It ran down numerous leads to
figure out where he had procured the money he used for tips and whether they
included University funds, id. at I-13; COI Hearing Tr. at 56:4-57:18. Working on
the NCAAs behalf, the University requested materials from the publisher of
Powells book and assembled a detailed chart for the enforcement staff detailing
the name, date, and host of each prospective student-athletes visit to campus over
2015-16, cut the teams scholarships, and eliminated several of its recruiting
the team from postseason play was the greatest and toughest thing I have ever had
performed exceptionally well that season and its leadership believed that we could
have won a National title. Id. at 397:23-398:1. But he concluded that we made
47
the mistake, we knew it, we looked at it, and we felt we were the ones that were
was already one of the most proactive compliance programs in the country. As the
rules education program, conducted regular reviews of its compliance efforts, and
has a history of self-reporting violations to the NCAA when they occur. See
took additional corrective actions to ensure similar conduct would never happen
investigation. COI Hearing Tr. at 395:4-10; see University Resp. at III-4 to -5.
and/or penalties. NOA at 10. At the in-person hearing before the COI, the
48
enforcement staff affirmed that the institution and enforcement staff ... worked
COI Hearing Tr. at 42:23-43:1. It added that the Universitys athletics director is
committed to compliance and wants his staff to do what they can to help the
enforcement staff, which makes him and his institution really easy to work
who was also a former NCAA staff member, likewise stated that [t]he
Conference ... view[s] Louisvilles compliance efforts in very high regard. COI
The COI, however, ignored all of these efforts. It did not acknowledge the
Universitys extensive cooperative and corrective efforts. Nor did it discuss the
[t]he institutions corrective actions are contained in the Appendix. COI Op. at
22. Indeed, in determining a penalty level, the COI simply stated that the
those mitigating factors were or explaining how the COI weighed them. Id. These
pro forma references to the Universitys efforts plainly did not discharge the
COIs obligation to actually analyze the role that these elements played, [and] the
2010), at 10-11.
49
That omission, furthermore, was highly prejudicial. The Universitys efforts
matched or exceeded the ameliorative efforts the IAC has previously found to
mandate reversal. In University of Oklahoma (IAC 2008), the IAC held that
two members of the football team. In University of Georgia (IAC 2005), the IAC
reversed the loss of numerous scholarships because the institution released four
student-athletes from their obligations to attend. Here, the University did much
more: It banished its highly-ranked team from the ACC and NCAA tournaments
altogether, ensuring that it could not win a conference or national title. And it did
Michigan (IAC 2003), that played a critical role in bringing its own teams
COIs analysis. The committee accorded them none. That alone merits reversal.
The COI committed a further reversible error by failing to find either of the
necessary predicates for a financial penalty: It did not identify record evidence
showing that student-athletes should have known they were ineligible, and it did
not consider, let alone weigh, the factors the IAC has long said are critical in
50
1. The bylaws provide that the COI may assess a financial penalty only
University of Memphis (IAC 2010), the factual predicate for this penalty is that a
eligibility was in question. Id. at 14. And the COI cannot simply assert that this
predicate is satisfied. Rather, it is very important that the COI both (a) state the
[finding] explicitly; and (b) identify the record evidence on which it bases that
The COI once again failed to satisfy these requirements. It stated that a
financial penalty was warranted because [t]he student athletes ... knew or should
have known that their actions were contrary to NCAA legislation. COI Op. at 22.
As an initial matter, the COIs statement that the students actions were contrary to
NCAA legislation is difficult to reconcile with the COIs finding that the students
were generally minors who lacked any prior knowledge of McGees scheme and
who refused McGees offers of sex, who left the event almost
immediately and before any striptease began. See supra at pp. 8-11.
51
In any event, the COI did not point to any record evidence showing that
the student-athletes somehow knew or should have known that McGees conduct
coaches are familiar with NCAA rules. See, e.g., Lamar University (2016), at 7
(As a veteran coach, the former head coach knew, or should have known, that he
should have known[] that his actions in sponsoring the prospect were contrary to
NCAA rules). But it does not make the same assumption of student-athletes or
prospects. On the contrary, in the rare circumstances in which the COI has found
some particularized evidence that the student was placed on notice that his
eligibility was at risk. In University of Memphis (IAC 2010), for instance, the IAC
found that a student-athlete was aware that his eligibility was in serious jeopardy
because he had received official correspondence informing him that his SAT score
was invalid. Id. at 14-15. In contrast, in Tulane University (1991), the COI
legislation had taken place when a coach unilaterally deposited more than $4,000
52
There is no basis in the record to conclude that the young men McGee
involved in his schemes were on notice that their eligibility might be in jeopardy.
Unlike in University of Memphis (IAC 2010), they did not receive any specific
notification that they might have lost eligibility. Nor would it have been self-
in Tulane University (1991), they may reasonably have assumed that a staff
their cooperation or approval, would not irrevocably taint their collegiate careers
for years down the road. At the very least, the COI could not simply assume to the
contrary. Its failure to make any such finding was clear error.
2. The COI erred still further by failing to consider or weigh the factors that
the IAC has said it must consult when deciding whether to impose a financial
penalty. In Purdue University (IAC 2000), the IAC identified several factors
that should affect the imposition and amount of a financial penalty: the nature of
the violations, the contributions by the ineligible student-athlete toward the success
of the team; and the manner in which the university has investigated and corrected
the circumstances giving rise to the violations among others. Id. at 14. In the
years since, the COI has repeatedly relied on this foundational decision and
purported to apply its factors. See, e.g., University of Memphis (2009), at 19.
53
In this case, the COI did not consider any of those factors. It failed to
consider whether the nature of the student-athletes activities justified the harsh
sanction of financial forfeiture (which it surely did not). See supra Part I.B. It
efforts.
Nor did the COI identify any other factors that made this penalty proper. It
simply recited the requirements in the bylaws. But those cannot be a sufficient
which necessarily requires more than a finding that the mandatory prerequisites for
Indeed, even if the COI had properly deemed a financial penalty appropriate,
the COIs failure to consider these factors prevented it from determining what
amount was proper. Purdue University (IAC 2000), at 14. The COI has
repeatedly determined that institutions should forfeit less than 100 percent of
54
e.g., Ohio State University (2006), at 42. Here, the Universitys extraordinary
penalty was appropriate. And if the COI had some reason for concluding it was,
the committee was required to set forth in its analysis the evaluation and
(IAC 2010), at 15-16. It did not, and so its penalty cannot be affirmed.
Finally, the COI erred by failing to consider the impact of the penalties it
University of Texas at El Paso (IAC 1998), at 23. In order to ensure that a penalty
is not excessive, the COI must ensure that the totality of the penalties imposed
Florida (IAC 2013), at 13; see Saint Marys College of California (IAC 2013), at
5.
The COI cannot perform this calibration without examining how a penalty
will impact an institution. The IAC has stated, for instance, that [t]he impact of
[an institutions] self-imposed probation is a material factor that the COI must
University (IAC 1995), at 8. It has long held that the COI must give appropriate
University of California, Los Angeles (IAC 1997), at 11. And the COI itself has
In this instance, though, the COI did not examine the impact of either the
vacation or financial penalties it imposed. It simply listed the years for which it
wished the University to pay a financial penalty, and cross-referenced a chart the
University had provided listing which years various student-athletes had competed
in which they were allegedly ineligible. COI Op. at 23, 26. In fact, each of these
penalties would be extremely and unusually harsh. The financial penalty would
require the University to forfeit hundreds of thousands of dollars in past and future
meanwhile, would result in the vacation of 123 games, including two Final Four
56
basketball championship ever vacated. This punishment would have a particularly
various seasons, and who would have their collegiate records erased for acts in
The COI should have factored these severe consequences into its analysis
when deciding whether vacation and financial penalties should be imposed, either
in whole in or in part. Had it done so, it is likely that it would have concluded that
these unprecedentedly large penalties were not a proportionate sanction for the
Whatever else it does, the IAC should at least remove the vacation and
financial penalties the COI imposed for the 2011-12 and 2012-13 seasons.
student-athletes should have been deemed ineligible at all. And even if they were,
57
None engaged in sex or received benefits of meaningful value, and each would
party for five minutes and left before a striptease began. See Interview Tr. at
response to the NOA that the enforcement staff erred by including in its
allegations.
The COI declined to resolve this dispute. Its report nowhere mentions
Nor does it analyze the factual allegations on which the enforcement staff based its
contested claim. Indeed, the COI appeared to operate under the mistaken
elliptically to a few minor factual disputes between the parties. COI Op. at 2.
facts necessary for imposition of a penalty are in dispute, the COI must issue
findings, on the record, resolving them. Bylaws 19.7.7.4, 19.8.1; see University of
58
Memphis (IAC 2010), at 16 (explaining that the COI must state its finding
explicitly and identify the record evidence on which it bases that conclusion.);
allegedly received was valued at only $100. That value is within the threshold
(2008), the COI stated that a payment of $100 or less generally does not trigger
throughout the 2011-12 and 2012-13 seasons, and no vacation or financial penalty
to the first of these episodes, and the second involved a benefit too insubstantial to
justify vacation.
59
particularly credible because admitted to participating in a separate
recollection was the more credible. See University Resp. at II-28 to -32.
The enforcement staff, again, disagreed. And the COI again did not resolve
b. As for the 2012-13 season, the University does not dispute that
every other such dance, the University valued this benefit at $125. The
enforcement staff initially disagreed and valued it but that divergence was
based simply on the fact that McGees escort, Powell, had assigned it that value
this dance and any other. The COI did not resolve the dispute, apparently
believing (again) that the parties disputes over precise dollar value[s] was
in the 2012-13 season was a dance valued at $125. That is only $25 above the
restitution threshold in existence at the time, and $75 below the $200 restitution
threshold the Division I Council recently adopted. See Bylaws at p. x; see also
60
Student-Athlete Reinstatement Guidelines at 21. This miniscule benefit cannot
possibly justify the difference between no penalty, on one hand, and vacation of
because the value assigned to this benefit was by necessity rough, reflecting the
therefore ought not to be deemed ineligible for the 2012-13 season either.
immunity by the COI, who then cooperates fully with the enforcement staffs
immunity pertains only to games in which he competed after the grant of limited
immunity was awarded. COI Op. at 26. But that is plainly not what the bylaw
61
on information [he] reported to the enforcement staff; it does not say that
cannot be declared ineligible for future games based on that information. Bylaw
19.3.7(d) (emphasis added). Had the NCAA wished to limit the grant of immunity
in this way, it could easily have done so: Later in the very same provision, the
Bylaw 18.4.1.4 states that a student-athlete shall be declared ineligible for further
a controlled substance. (Emphasis added). The NCAA did not include similar
language in the limited immunity rule, and the COI cannot read it as if it did.7
This reading is not only textually compelled; it is also the only one that
makes sense. The purpose of limited immunity under NCAA rules is to encourage
suffer adverse eligibility consequences for telling the truth. Div. I Proposal PP-
2011-2. That promise would be empty indeed if it did not shield a student-athlete
from the eligibility consequence of having his entire collegiate record wiped
away for any past misconduct he reveals. Few student-athletes would cooperate
7
Nor is there any basis for reading the words declared ineligible as referring
only to future and not past ineligibility. The bylaws expressly state that a
declaration of eligibility can be retrospective. See Bylaw 31.2.2.3 (providing that
[w]hen a student-athlete . . .is declared ineligible following [a] competition, the
individuals or teams performance may be stricken from the championships
records).
62
with COI investigations if that draconian penalty was the inevitable result, and the
For just that reason, nearly every form of immunity that the law provides is
retrospective, and not just prospective, protection for past conduct. See, e.g.,
Kastigar v. United States, 406 U.S. 441, 453 (1972). This reflects the widespread
should accordingly have been deemed eligible for the 2011-12 and 2012-13
seasons as well. And with supposed ineligibility eliminated, along with the
simply lacked authority to impose vacation and forfeiture for those years.
63
B. Regardless, Vacation And Financial Penalties Were Unwarranted
For These Seasons.
technically ineligible, the COIs vacation and financial penalties for the 2011-12
and 2012-13 seasons would be grossly disproportionate to the scope of their acts.
was offered sex and refused itthe most that could possibly be expected
In contrast, the scale of the penalty imposed for these students participation
was especially harsh. These individuals played in the 2012-13 season, when the
In effect, then,
the COI took action to deprive the team of its championship because of the
participation
attended a party for, at most, a few minutes. That is not reasonable or fair.
The COI abused its discretion by imposing such sweeping penalties, and its
minimum, the vacation and financial penalties imposed in connection with the
65