Georgia Institute of Technology – Barlow Garsek & Simon, LLP
The Committee on Infractions (“COI” or “panel“) found violations of NCAA legislation in Georgia Institute of Technology (“Georgia Tech” or “institution” or “appellant”) men’s basketball program. On the basis of the findings, COI determined that this was a Level I-Standard case prescribed penalties accordingly. This case centered on violations of NCAA bylaws governing recruiting inducements, extra benefits, unethical conduct and failure to cooperate.
Appeal of Penalties
The appellant did not appeal any of the findings of violations in this infractions case. Georgia Tech appealed the penalty prescribed by COI. The appealed penalty is:
V.4 Scholarship reductions: Georgia Tech shall reduce the number of grants-in-aid awarded in men’s basketball by a total of four scholarships by the end of the 2024-25 academic year. Because Georgia Tech served one scholarship reduction during the pendency of the appeal [during the 2019-20 academic year], Georgia Tech may apply that scholarship as a credit to the prescribed penalty. The panel provides Georgia Tech with the flexibility to take the remaining three scholarship reductions as it deems appropriate between now and the 2024-25 academic year. This penalty equates to a 7.69 percent reduction from the total number of scholarships available over a four-year period.
In its written appeal, Georgia Tech asserted that COI abused its discretion by prescribing penalty V.4 (scholarship reductions).
Committee’s Resolution of the Violations Raised on Appeal
In reviewing the decision in this case, the Infractions Appeals Committee (“Committee”) may set aside a penalty prescribed by COI on appeal if the appellant demonstrates that the prescription of the penalty is an abuse of discretion.
As we 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 Report (June 30, 2009) at Page No. 23.
The Committee’s mission is to provide a meaningful, reliable and credible appeal opportunity, which produces outcomes that have a positive impact on the infractions process and support the NCAA’s commitment to provide a fair competitive environment for student-athletes. This responsibility incorporates the legislated high standard of review for setting aside hearing panel conclusions and penalties in NCAA Bylaws 18.104.22.168 and 22.214.171.124, and the guidance to be provided to the membership and COI through appeals decisions. The standard of review is an appropriately high bar, not often met upon appeal, designed to provide a last opportunity for the membership to be heard while ensuring consistency and predictability in the infractions process.
The Committee noted that there have been legislated strides in addressing the breadth of potential penalties, that each case offers unique circumstances that may not allow for complete case-to-case comparison and that COI has begun to elaborate upon the full breadth of factors impacting their decisions. However, there continue to be some circumstances where hearing panels either have not fully articulated their rationale for some aspects of published decisions, which would assist the membership’s understanding of outcomes for perceived like cases, or have not clearly differentiated the cases before them in a manner that ensures the outcome is consistent within the current line of adjudicated Level I and II infractions. The Committee recognized that case precedent may evolve over time, but the hearing panel must provide detailed rationale when a penalty deviates from past precedent, even if the new penalty is within the same penalty-matrix box. This explanation is necessary to educate the membership and to meet the goal of ensuring consistency and predictability in future outcomes. In remand cases where the hearing panel has been provided specific guidance from the Committee regarding both the framework for analysis and the specific case precedent from which to draw appropriate comparison or differentiation, it is especially necessary for such detailed rationale to be provided. This reflects the obligation on remand for adherence to the final, binding and conclusive determination of the Committee. This obligation remains, even if the panel disagrees with the outcome. The Committee is the final step of the peer-driven infractions process, and not recognizing that legislated authority deprives an appellant of its initial meaningful appeal and creates additional bureaucracy and delays involving secondary appeals. If such nonadherence to specific guidance is determined, that, in and of itself, could justify a determination of abuse of discretion by this committee.
Specific to this appeal, the appellant argued four separate but interrelated abuses of discretion by the hearing panel, regarding what the appellant noted is a practical equivalent to the previous penalty through the prescription of a four-scholarship reduction over a four-year period. At least two of the abuse of discretion arguments spoke to the nonadherence to the committee-provided direction noted above. The outlined arguments for abuse of discretion are as follows:
- The hearing panel ignored material factors of applicable case precedent as noted by the Committee;
- The hearing panel failed to provide a basis for departure from precedent as instructed by the Committee;
- The hearing panel failed to appropriately weigh the remaining aggravating and mitigating factors in determining the appropriate classification of the case due to its failure to completely remove the factor overturned in the previous appeal from its analysis; and
- The hearing panel based the penalty on several irrelevant factors, including hypothetical outcomes, alternative penalties not available under the current penalty structure and reliance on the negative characterization of head coach’s conduct in a case where no head coach violations were alleged, nor was a finding of head coach’s responsibility violation made.
In response, COI argued that it appropriately continued to classify the case as Level I-Standard based on the remaining aggravating and mitigating factors, including one remaining aggravating factor to which it had previously assigned significant weight. COI also noted that the penalty prescribed was consistent with the penalty matrix and, therefore, did not require additional rationale. Further, COI argued that it adhered to the Committee’s guidance related to case precedent. COI determined that only the Southern Methodist University Committee on Infractions Decision (September 29, 2015) case provided appropriate comparison, and COI noted that the prurient nature of the behavior involved in the current case required an enhanced penalty similar to other cases involving such behavior. Finally, COI argued that it cannot abuse its discretion when it explains its analysis and rationale.
As elaborated below, the Committee found the totality of the appellant’s arguments persuasive. The COI’s prescription of an equivalent financial aid reduction penalty upon remand is an abuse of discretion, because COI failed to consider and weigh material factors. In addition, the prescription of the penalty was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational and based in significant part on one or more irrelevant or improper factors.
As a point of initial emphasis, nothing in this decision condones the behavior involved in this case, specifically the extreme lapse in judgment in providing sexually explicit entertainment as part of a recruiting visit. However, it is equally important not to inflate the behavior in a manner that loses sight of the overall extent of the violations at issue relative to comparable cases, especially ones that speak directly to other areas of import to the collegiate model and/or institutional control.
The Committee also addressed the threshold argument put forward by COI that the remand reclassification was appropriate and a penalty in the appropriate matrix box requires a level of deference such that an explanation of any departure from case precedent is not required. As noted earlier, such explanation is necessary to educate the membership and to meet the goal of ensuring consistency and predictability in future outcomes. In addition, if COI had fully eliminated the vacated aggravating factor from its analysis as prescribed by the Committee, then there should have been an explanation beyond reliance on an argument that the original factors could have supported the higher Level-I Aggravated classification and that the remaining aggravating factors supported the same scholarship reduction. In the original infractions decision, COI did not note any assigned weight for the now-vacated aggravating factor, so the Committee was left to assume that “normal” weight was given to the factor. Generally, when a “normal” weight aggravating factor is removed from the equation, one would not expect discussion about a potentially higher classification or the same penalty without further explanation. Also, included in the rationale provided, COI specifically cited “the intentional involvement of adult entertainment and the involvement of a notable booster to entice a prospect to come to” the institution. The same “intentional” action is similar to the rationale that was used to initially justify the application of the now vacated factor. All of these factors, when combined with COI’s noted disagreement with the vacation, lends credence to the appellant’s argument that the vacated factor was in fact not fully eliminated from the analysis and had some impact on the penalty determination.
While the Committee provided an appropriate level of deference to COI upon initial appeal, such deference is impacted when COI has been provided specific instruction by this committee on remand to make its penalty determination via the lens of all the specifically cited case precedent for this case as noted below, not just the one case the hearing panel agreed with. Further, for COI to only fully articulate its analysis and justify its decisions in its appellate arguments, and not in the original decision, is both unfair to the appellant and contrary to the need for the infractions process to provide clarity and guidance to the membership.
Additionally, as is the case here, only noting the common portions of case precedent that support an outcome without providing sufficient examination of key distinguishing factors or dismissing the applicability of other cases on the premise that they are different types of violations does not meet the scope of the evaluation requested and required. While the Committee indicated it is aware that each infractions case is unique, there are sufficient similarities in cases that may provide guidance, and also dissimilarities in findings that can either bolster or temper such guidance. In the initial appeal decision, this committee focused on four cases in its review of precedent: University of Missouri, Columbia Committee on Infractions Decision (January 31, 2019), Alabama A&M University Committee on Infractions Decision (September 11, 2018), SMU Committee on Infractions Decision and Weber State University Committee on Infractions Decision (November 19, 2014). Three of those cases involved academic fraud and the fourth case involved improper certification of eligibility on 188 instances in 14 sports over a period of several years. Additionally, the Alabama A&M Committee on Infractions Decision included a finding of a lack of institutional control and the SMU Committee on Infractions Decision included a violation of the head coach responsibility bylaw.
The hearing panel argued that the appellant’s “intentional activity in the recruitment of prospects by both boosters, extra benefits and the use of adult entertainment in recruiting a top tier prospect” is more egregious than the Missouri Committee on Infractions Decision, Alabama A&M Committee on Infractions Decision and Weber State Committee on Infractions Decision cases, and the hearing panel used only the SMU Committee on Decision case in its analysis for reviewing case precedent in its remand review.
Again, the Committee noted it does not condone the use of adult entertainment in the recruiting process, and the Committee believed it is contrary to the core tenets of the collegiate model. However, the Committee disagreed with the premise that the one-time use of adult entertainment with one prospective student-athlete and one student-athlete is more detrimental to the collegiate model than academic fraud or significant eligibility certification issues. As noted in NCAA Constitution 1.3.1, “a basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body.” As such, academic fraud must be at least equally as egregious as a recruiting violation involving extra benefits from a booster and the use of adult entertainment in one instance while recruiting one prospect. Therefore, the Committee believed that all four cases are relevant to the case precedent analysis, especially those involving academic fraud. In reviewing the four cases cited above, the Committee noted that the Missouri Committee on Infractions Decision, Alabama A&M Committee on Infractions Decision and Weber State Committee on Infractions Decision were all prescribed one-year scholarship reduction, which two of the schools were permitted to aggregate over a longer period of time, and those one-year reductions ranged from 5% to 14.23%. For the SMU Committee on Infractions Decision, the reduction was nine scholarships over a period of three years in basketball (23.08%, which is equivalent to three scholarships in a year). It should be noted that the penalty matrix was revised after the SMU Committee on Infractions Decision case, and the range for scholarship reductions for Level-I Standard cases was reduced to a range of 5% to 15%. This fact must be accounted for in the process of weighing case precedent. So too must the facts that SMU Committee on Infractions Decision involved a head coach responsibility violation not found in this case, and that at least one of the one-year scholarship reduction cases included a lack of institutional control finding not found in this case. Taken in their entirety then, the totality of the case precedent as actual comparator to the case at hand clearly does not support the prescribed penalty, but rather points much more definitively to a one-year scholarship reduction.
Finally, the Committee also addressed two additional arguments that were used to support COI’s determination in this remand case. First, in an effort to support penalty V.4 remaining at the same classification, COI noted that the presence and weight of aggravating and mitigating factors could have originally supported a Level I Aggravated classification. Just as the Committee has not accepted speculative arguments from appellants, arguments from COI related to what could have been but was not found are not persuasive. Second, COI argued that if the Committee vacated the scholarship reduction penalty, the appellant would effectively serve no meaningful penalties for its violations. In this case, a one-year postseason ban was considered served in spring 2020 as a result of a decision made by the NCAA Division I Board of Directors. The actions by the Board of Directors during a national pandemic should not serve as justification for the prescribed penalty. This is especially true when arguing that the penalty somehow is necessary to ensure adequate punishment to dissuade future behavior by the appellant or to provide sufficient guidance for other institutions as to the impact of similar behavior.
For the reasons cited above, the Committee found an abuse of discretion and vacates three of the four scholarship reductions prescribed in penalty V.4. Therefore, penalty V.4 becomes a reduction of one scholarship, which is consistent with the applicable case precedent. The one scholarship reduction was completed by the institution during the 2019-20 academic year.
For any questions, feel free to contact Christian Dennie at [email protected]