As of this afternoon, we have the answer to both of those questions.
OTS was correct that neither the fine, nor the public censure, nor the length of probation were the targets of the appeal. Instead, the University focused solely on the vacation of wins. He also nailed, in some form, most of the arguments presented in the appellate brief.
The arguments laid out in the brief address the issue from a few different angles. First, the University argues that the penalties depart from precedent in other, similar textbook cases. It then points out this case differs substantially from other cases in which wins have been vacated. The failure of the Committee on Infractions to give Alabama's cooperation sufficient credit is next, followed by claims that the penalties are inconsistent both with the general requirements of the appeals committee and with the guidelines for reinstatement of ineligible athletes.
The appeal asks for the vacated wins portion of the penalty to be reversed in their entirety, and they make (as you might expect) a fairly convincing case. Read on for more details.
The Standard of Review
Some comments have expressed concern that the University faces an uphill battle due to the change in the standard of review for appeals. The change was fairly straight-forward. Prior to January 1, 2008, in order to be successful on appeal, you had to demonstrate that the penalties were "excessive and inappropriate." After that date, you had to show that the penalties were "excessive such that it constitutes an abuse of discretion."
This seems, on its face, rather damning. What it is important to note, however, is that the discretion that it must be demonstrated has been abused is not the discretion of the NCAA as a whole or the rule-makers. Instead, it it the Committee on Infractions whose discretion is being judged. There are a bunch of rules that the COI must follow -- some of them are explicitly stated in the NCAA Bylaws, but others exist only as precedent handed down by the appeals committee. It is the University's claim that the vacation of wins penalty ran afoul of both of these types of rules and, therefore, constituted an abuse of discretion.
The appeals committee released a decision in the Alabama State infractions case at the end of June. In that decision they expand on what constitutes an abuse of discretion. Specifically, they noted:
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.
Note that the presence of any one of those factors constitutes an abuse of discretion. Alabama argues in their brief that all of those factors are present. This isn't unusual -- one would expect the University to claim all five are present even if some of those claims are significantly weaker than the others because you never know what is going to convince a person. That said, most of their arguments, in my opinion, are pretty solid.
The main argument advanced here is simple: there have been four similar textbook cases. In every single one of them, the infractions involved were more severe, and in every one of them the penalties were less severe and none of them involved a vacation of wins. You can read the PDF linked above if you want all of the nitty gritty details, but here are a few tidbits that stood out:
- Three of the four cases cited the offending school for Lack of Institutional Control. Something expressly not present in this Alabama's case.
- Two of the cases involved schools that were made aware of their infractions but failed to self report.
- Every one of the other cases involved other infractions as well in addition to the textbook infractions.
- Three of the other cases involve systems where the students were given cash credits at the bookstores (and told their balances at each transaction).
- One case involved students buying things other than books with their cash allotments.
The appellate brief also contains a nice chart, presumably so that the the appeals committee cannot possibly miss the glaring departure from precedent. I've reproduced that here because it's so damn interesting:
|School||Lack of Inst. Controll?||Investigative Issues||Other violations or Factors?||Wins Vacated?|
|Ball State||Yes||Yes -- Ball State "failed to investigate and report violations"||Yes -- Significant practice issues. Credit give at bookstore.||No|
|Temple||No||Yes -- Fraud and unethical conduct in tennis. Secondary issues.||None for textbook issues (only for fraud in tennis)|
|Weber State||Yes||Yes -- Credit give at bookstore, resulted in personal items being acquired.||No|
|TSUSM||Yes||Yes -- "failed to conduct adequate investigations" despite notice; involvement of conference commissioner required.||Yes -- violations of practice rules by football. Amounts greatly exceeded Alabama.||No|
|Alabama||No||No -- violations were self-discovered and self-reported||No||Yes|
In only a few cases were scholarships lost and they were all specifically for other infractions, not the textbook violations.
The basic point being made here is a simple one: these are four examples (the only four that really compare) of cases that were at least as bad, if not worse, and not single victory has ever been vacated for textbook issues. The University argues that such a clear departure from precedent, absent any further explanation as to why, is a clear abuse of discretion.
The appellate brief argues that this case doesn't line up with past precedent on the vacation-of-wins, either. They point to the University of Oklahoma's successful appeal in which the appellate committee held that the COI failed to "analyze the factors relevant to a vacation of wins and failed to analyze and weigh the institution's cooperation."
The appeals committee laid out four factors in the OU case that are relevant to the vacation of wins:
- Academic fraud. (None present in the Alabama case)
- Serious intentional violations. (None present in the Alabama case)
- Direct involvement of a coach or school administrator (Not present in the Alabama case)
- A large number of violations. (Only two present in the Alabama case)
That last point is one that might have you scratching your head. Don't feel bad if you're confused: the COI couldn't get it right, either. The COI mentioned several times the large number of violations. In so doing, they were misinterpreting their own rules. In fact, all 200-something secondary violations were aggregated into just one major infraction. The second major infraction was for failure to monitor.
Had each of the individual violations been found to be major, point 4 might not weigh in favor of Alabama, but since they were held as secondary violations aggregated into a single major infraction, it does not apply.
The University's Cooperation
Three quotes are really all that are needed to tell the story on this one. First, from the decision in the OU appeal:
As we also stated in the Mississippi report, and repeated in our Howard University report: "Where an institution fully accepts its membership obligations and makes every effort to participate in and assist the enforcement process, its conduct must be a significant factor in determining and imposing penalties.The chief executive officer who requires his or her institution to open itself to the NCAA enforcement process, often in the face of powerful opposition, must be supported by the Association.
Next, the relevant portion from the report of the Committee on Infractions where they "considered" Alabama's cooperation:
the committee considered the institution's cooperation in this case and determined that the cooperation exhibited by the institution [was] consistent with its obligation under Bylaw 32.1.4, Cooperative Principle, which requires member institutions to cooperate in investigations.
Finally, the University's take on the two quotes above:
[T]he sentence appears to be little more than boilerplate. . . [T]he University of Alabama found, reported, and fixed the violations at issue. . . . But for the University's significant cooperative efforts, this major infractions case would never have existed.
The Requirements of the Committee on Infractions
The appeals committee's decision in the University of Mississippi case laid out seven factors that must be considered when assessing penalties. Below is a summary of those seven factors as they relate to the current case, for more detail, check out the full report, pages 24-27.
- Nature, number and seriousness of the violations: Here, we're talking about one major violation and failure to monitor. Alabama argues that while this factor was considered, the COI misapplied the facts, stating that there were numerous violations when there were just two.
- Conduct and Motives of the Individuals Involved in the Violations: The University reminds us that of the 201 athletes involved, only 22 of them knew they were doing anything wrong and even those 22 didn't realize that this was impermissible with the NCAA -- they just thought they were screwing the University. This point has some sub-factors, all of which seem to cut in favor of the University. See the full report for those.
- Corrective Actions Taken by the Institution: To quote the mantra echoed in Alabama's appellate brief: "this was a self-discovered, self-investigated, self-reported, and self-remedied case."
- Comparison of the Penalty or Penalties Imposed: See the two sections above on comparisons to textbook and vacation-of-wins cases.
- Institutional Cooperation in the Investigation: See the section above on that.
Impact of Penalties on Innocent Student-Athletes and Coaches: The vast, vast majority of the impact from the penalties is on innocent parties.
NCAA Policies Regarding Fairness in, and Equitable Resolution of, Infractions Cases: (try to muffle your laughter, please, Alabama fans) The appeal comes back to the comparisons listed in the two compare-and-contrast sections above. The appeal also cites an appellate decision in which the COI is instructed to "explain the facts or circumstances which lead them to depart from any pattern established by prior cases," such explanation is notably absent from the COI's report.
In short, this is UA basically saying that the COI did nothing it was charged with doing, thereby abusing its discretion.
Guidelines for the Reinstatement of Ineligible Student Athletes
The NCAA guidelines for reinstating student athletes contains instructions for how to handle cases of extra benefits. Those calculations, according to the appeal, max out at a suspension for 30% of the season for violations above $500.
Coincidentally (or not), all of the athletes found to have received lots of extra books were suspended by the university for . . . you guessed it . . . 30% of the season. In the case of the football team, this was 4 games.
The University points out that assessing a vacation of wins in addition to the imposed suspensions is wrong for two reasons: first, it doubly punishes the same offense. Second, it imposes a 300% penalty for an infraction that for which the penalty is supposed to be 30% at maximum.
The closing sentences of this section from the University's appeal is so good it bears quoting:
Such a penalty is unfair to the other student-athletes involved, unfair to the coaches involved, and amounts to little more than an Orwellian attempt to rewrite history, to the detriment of dozens, if not hundreds, of uninvolved parties. The same is arbitrary, irrational, and an abuse of discretion.
The bottom line being that these athletes had already been punished in accordance with the NCAA guidelines long before the University ever appeared before the COI.
One would be foolish to assume they can predict what any branch of the NCAA will do at any given time, but after reading the appeal, it wouldn't be at all surprising to me if the vacated wins were reinstated.
This is not because I believe the penalty to be absurd for the infractions committed (which I do), but because the COI made some huge mistakes in the way they went about explaining the penalties and their reasoning. Had they taken the time to address all of the above issues and had they come up with some ways that the Alabama case was different from the other textbook cases or different from the other vacation-of-wins cases, they might have given the appeals committee some room to tell Alabama to take a hike.
As it stands, however, the COI's report is rife with the kind deficiencies that simply beg to be overturned on appeal.