Professional Documents
Culture Documents
University of Mississippi Rebuttal To COI Response
University of Mississippi Rebuttal To COI Response
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THE UNIVERSITY OF MISSISSIPPI’S REBUTTAL
For the reasons explained in the Appeal of the University of Mississippi from Infractions
Decision No. 487, this Committee should vacate two penalties imposed by the Committee on
Infractions (“COI”) and two findings of violations made by the COI. The COI’s Response to the
University’s Appeal fails to explain – much less justify – the errors identified in the University’s
initial submission.
With respect to the two penalties, the COI abused its discretion in: (a) imposing a second
postseason ban year that is contrary to its own precedents and those of this Committee; and (b)
departing from the Figure 19-1 penalty guidelines and imposing a three-year recruiting
restriction. Those penalties should be vacated. The appealed violations should also be vacated
because: (a) the evidence does not satisfy the applicable standards for the COI’s findings; (b) the
COI made factual mistakes in finding violations; and (3) the COI cannot save its erroneous
member institution’s revenue, recruiting, roster, and reputation. For that reason, a two-year
postseason ban is rarely imposed. The two-year postseason ban on the University’s football
Contrary to this Committee’s repeated instructions, the COI did not explain in its
Infractions Decision why a second postseason ban year, which results in a $4 million to $8
cooperative efforts and self-imposed penalties, including a one-year postseason ban. All that can
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be gleaned from the Infractions Decision is that the COI afforded “significant weight” to
infractions decisions from 1986 and 1994 and used those decisions to erroneously infer the
existence of “an out-of-control culture that has existed for decades.” Infractions Decision, p. 2.
The COI’s failure to explain this departure from precedent and its reliance on an improper factor,
i.e., decades-old infractions cases, show that the COI abused its discretion in imposing a
postseason ban on the University’s football program for the 2018 season. Nothing in the COI’s
A two-year postseason ban is plainly excessive when compared to other COI decisions,
and the COI provided no explanation in the Infractions Decision for its deviation from precedent.
This is the first and only case under the new penalty structure in which the COI has imposed a
two-year postseason ban against an institution that did not self-impose such a ban. In Level I
cases decided after the new penalty structure was implemented but applying penalties under the
former bylaws, the COI imposed a maximum of a one-year ban. And in the three instances
where the COI imposed a two-year postseason ban under the old penalty structure from 2002 to
2013, each institution, unlike the University, was a “repeat violator” with a prior major
infractions decision within a five-year window of the violation giving rise to the ban. Thus, the
In light of this substantial and consistent precedent, the COI’s addition of a second
postseason ban year while accepting the University’s other self-imposed Level I penalties
requires this Committee to look to the COI’s Infractions Decision for an explanation of the
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COI’s rationale.1 Syracuse University (IAC) (November 25, 2015), p. 7 (“In appeals, this
committee looks to the Committee on Infractions’ infractions decisions for explanation of the
rationale for prescribed penalties….”); Florida State University (IAC) (January 5, 2010), p. 11
(An institution is entitled “to know and understand the reasons underlying the penalties imposed
penalties, this Committee has repeatedly stressed the “critical importance” of having the COI
“sufficiently articulate how it balanced the mitigating factors, including the institution’s self-
imposed penalties, with the aggravating factors.” University of Louisville (IAC) (February 20,
2018), p. 6. Such an explanation from the COI “helps this committee better evaluate on appeal
whether the Committee on Infractions has appropriately weighed all the factors relevant to
setting penalties in order to determine whether a penalty imposed is excessive and an abuse of
discretion.” Id. Where, as in this case, the COI fails to provide any contemporaneous
explanation, it indicates that the COI “failed to consider and weigh material factors” and
constitutes an abuse of discretion. E.g., Syracuse University (IAC) (November 25, 2015), p. 7
(vacating penalty where “hearing panel failed to consider and weigh material factors and
In its Response, the COI does not refer this Committee to any rationale found in the
Infractions Decision for imposing the most severe competition penalty available for a Level I –
Standard case. The COI did not do so because the Infractions Decision contains no such
explanation. In fact, the COI simply and dogmatically declares that the penalty is appropriate
because the COI says so. The COI’s failure to explain why it decided to impose an additional
1
This Committee evaluates the sufficiency of the COI’s explanation of the rationale it used in
assessing penalties from the Infractions Decision and not its appellate submissions. University of
Oklahoma (IAC) (February 22, 2008), at p. 7.
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postseason ban year establishes that the COI abused its discretion. Howard University (IAC)
(July 16, 2002), p. 31 (determining that imposition of period of probation that “equal[ed] the
longest period of probation imposed in any prior infractions case” was “excessive and
inappropriate” although the case “involved a large number of serious violations which warranted
significant penalties,” because the COI failed to provide any analysis of a mitigating factor).
This failure also indicates that the COI did not take into account or properly weigh the
University’s meaningful self-imposed penalties, including a postseason ban for its football
program in the 2017-2018 academic year when it was bowl eligible. As in the University of
Oklahoma case, the University proactively took “a powerful self-imposed penalty which
seriously affected the football program.” University of Oklahoma (IAC) (February 22, 2008), p.
7. And here, just as in that case, “[t]he Committee on Infractions report did not acknowledge or
discuss this action nor specify what weight, if any, it was given.” Id., pp. 7-8; see also
University of Georgia (IAC) (June 3, 2005), p. 28 (vacating grant-in-aid reduction penalty where
COI failed to acknowledge institution’s “powerful self-imposed penalty that seriously affected
its men’s basketball program”). The COI’s refusal to follow this Committee’s repeated prior
directive and articulate a reasoned explanation of how it considered and weighed material factors
While the COI did not expressly explain its rationale in imposing a two-year postseason
ban, the COI made clear that its decision was based upon a conclusion that the University’s two
prior infractions cases in 1986 and 1994 were “similar” to the instant appeal and that they
established a culture that “existed at Mississippi literally for decades.” See Infractions Decision,
pp. 2, 50; COI Response, p. 28. Therefore, the COI imposed and applied Bylaw 19.9.3-(b) (a
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history of Level I, Level II or major violations) as an aggravating factor on its own accord. By
doing so, the COI considered an improper factor, which constitutes an abuse of discretion.
First, the COI offers no justification for the complete lack of notice given to the
University that this aggravating factor might be used to impose a second postseason ban year.
The enforcement staff did not identify Bylaw 19.9.3-(b) as an aggravating factor in the 2017
Notice as Bylaw 19.7.1 expressly requires if the enforcement staff believes that factor may apply
to the institution. Before the COI issued its Infractions Decision, it gave no notice to the
University that Bylaw 19.9.3-(b) was under consideration as a potential aggravating factor. As a
result, the University had no opportunity to address the application of that aggravator. Lack of
notice and the opportunity to be heard is a fundamental departure from the principles of justice
Second, the COI would have this Committee hold for the first time that an institution
never gets a clean slate in the infractions process. According to the COI, so long as a prior
infractions case invokes the same or similar bylaws and/or general type of misconduct as a
current allegation, no matter how remote in time or the breadth of the institution’s compliant
conduct in between, the institution faces enhanced penalties through application of the Bylaw
19.9.3-(b) aggravating factor. Yet, the COI has routinely rejected any such approach in the past.
Even where the COI has found prior infractions cases to be “similar” to the violations at issue, it
has afforded “little weight” to those decisions based upon the passage of time. Grambling State
University (July 28, 2017), p. 7 n. 9 (affording “little weight” to prior infractions cases from
1997 and 1989 that involved “similar recruiting violations” because “roughly 20 years has
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In the single paragraph devoted to this conclusion in its Response, the COI is wholly
unable to direct this Committee to any case where decades-old infractions decisions have been
used against an institution, as the COI did here, to justify the imposition of a penalty as severe as
a postseason ban. Under this standard, every NCAA member, once sanctioned, would be subject
to enhanced penalties forever. In the face of the University’s initial submission, the COI’s only
response is to ignore the overwhelming amount of precedent that runs counter to its conduct in
The COI’s position, if upheld, effectively creates an open-ended statute of limitations for
repetitive penalties for the same violation that is contrary to the bylaws and the membership’s
expectations. Under Bylaw 19.5.11, allegations “shall be limited to possible violations occurring
not earlier than four years” before the notice of inquiry. But once a violation is found and
penalties assessed for that violation, the COI asserts that it is free to unilaterally use the “same”
violation 20 and 30 years later as the basis to enhance penalties against the institution in a
present-day infractions case. This illogical application of Bylaw 19.9.3-(b) cannot stand.
By according “significant weight” to infractions cases from 23 and 31 years ago and
relying upon those cases to infer the existence of a decades-long culture of noncompliance
despite the absence of a single major, Level I, or Level II infraction in that time frame, the COI
disregarded bylaws that are intended to ensure fairness and predictability in the enforcement
process so that member institutions will know what is required of them. In doing so, the COI
departed from its own precedent and based its decision in significant part on one or more
irrelevant or improper factors. See, e.g., University of San Francisco (April 6, 2018), p. 13
(assigning “minimal weight” to 19.9.3-(b) “because only one of the previous cases [from 2010]
is less than 25 years old”); Morgan State University (December 19, 2017), p. 15 (assigning
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“limited weight” to 19.9.3-(b) where prior infractions cases were from 1995 and 1999); Prairie
View A&M University (November 21, 2017), p. 4 (“Although agreed upon, the panel accorded
little weight to the aggravating factor set forth in Bylaw 19.9.3-(b)” based upon prior infractions
cases from 2008, 2001, and 1964); Florida International University (April 28, 2017), p. 6
(applying 19.9.3-(b) only where institution and enforcement staff agreed and institution failed to
The COI’s reliance on these factors constitutes an abuse of discretion that requires this
Committee to set aside the second postseason ban year on the University’s football program.
Bylaw 19.10.1.1 (“A penalty, including determinations regarding the existence and weighing of
any aggravating or mitigating factors, may be set aside on a showing that the hearing panel
abused its discretion.”); see also Syracuse University (IAC) (November 25, 2015), p. 7 (vacating
penalty where “hearing panel failed to consider and weigh material factors and therefore, abused
its discretion”); University of Oklahoma (IAC) (February 22, 2008), p. 7 (vacating penalty where
“[COI] report did not acknowledge or discuss [a self-imposed penalty] nor specify what weight,
if any, it was given”); University of Georgia (IAC) (June 3, 2005), p. 28 (vacating penalty where
As the NCAA expects its members to do, the University self-imposed appropriate
recruiting restrictions under Figure 19-1 for a Level I – Standard case, including a seven-week
prohibition on unofficial visits in the fall of 2017 and another five-week prohibition in the spring
of 2016. Without any explanation, the COI imposed a 156-week (i.e., three-year) restriction on
unofficial campus visits as an additional core penalty. The COI abused its discretion by
imposing this penalty because it is not an authorized core penalty under the NCAA’s bylaws.
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A. The COI’s Three-Year Limitation On Unofficial Visits Was Imposed As A
“Core Penalty.”
The COI concedes that its recruiting restriction penalty is not found in the Figure 19-1
penalty guidelines. In an attempt to justify the penalty, the COI asserts that “[t]his is not a
penalty prescribed using the core penalty matrix ….” COI Response, p. 29. Yet, the COI’s
assertion is flatly contradicted by the clear text of the COI’s own Infractions Decision.
The COI lists “Core Penalties for Level I-Standard Violations (Bylaw 19.9.5),”
beginning at page 55 of the Infractions Decision. Penalty 5.c in that section sets out the three-
year unofficial visit limitation as a part of the core recruiting restriction penalties. Infractions
Decision, p. 56. It is absurd for the COI to contend, as it does now, that the unofficial visit
limitation was imposed as anything other than a core penalty under the matrix.
By way of contrast, the COI purposefully sets out additional, non-core penalties imposed
under Bylaw 19.9.7, beginning at page 59 of the Infractions Decision. There is no mention of
the recruiting restriction penalty in that section. The COI knows full well the difference between
core penalties imposed under Bylaw 19.9.5 and additional penalties imposed under Bylaw
19.9.7. The unofficial visit restriction was plainly designated as a core penalty. Thus, the COI’s
penalty imposed under Bylaw 19.9.7-(l) is clearly belied by the plain text of the Infractions
Decision.
Core recruiting restriction penalties are set out in the Figure 19-1 penalty guidelines.
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on unofficial visits in the fall of 2017 and a five-week prohibition in the spring of 2016. 2 These
guidelines do not provide for a 156-week limitation on unofficial visits for even a Level I –
Bylaw 19.9.6 provides that the COI “may depart from the core penalties in Figure 19-1,
provided the panel explains, in its decision, the basis for its prescription of core penalties
different than those set forth in Figure 19-1.” The COI does not contend that its Infractions
Decision contains any such explanation because the Infractions Decision is completely silent as
to why the COI made such an extreme departure from the authorized core penalties. 3
Finally, the COI offers the University of Miami (October 22, 2013) case as justification
for the recruiting restriction penalty. The University of Miami case involved penalties assessed
under the former penalty structure. According to the COI, such cases “are not informative in
demonstrating an abuse of discretion.” See COI Response, p. 26. The COI cannot have it both
ways. If such cases cannot demonstrate an abuse of discretion, they cannot establish the absence
of such an abuse either. Because the COI departed from the approved core penalties without
explaining the reasons for its departure and can only belatedly offer inapposite precedent in
2
Following the Figure 19-1 guidelines, the University self-imposed additional recruiting
restrictions that included: (1) a reduction in official visits in the sport of football by nearly 20% for the
2014-15 academic year based on the previous four-year average; (2) a reduction in the number of
evaluation opportunities for the full football staff by 10% during the spring 2015 evaluation period (from
168 days to 151 days) and by 12.5% during the spring 2016 evaluation period; (3) a prohibition on off-
campus recruiting for 21 days for one assistant coach; and (4) a prohibition on off-campus recruiting for
30 days for a different assistant coach.
3
As noted above, any attempt from the COI to explain its rationale in its Reply now comes too
late. The issue is whether the COI adequately explained the reasons for imposing a penalty beyond that
authorized under the penalty guidelines in the Infractions Decision.
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support for that departure, the COI abused its discretion by imposing the unofficial visits penalty
The COI ignores the applicable standard for any lack of institutional control (“LOIC”)
finding: first, the existence of a violation; and second, evidence of a specific institutional failure
that caused or contributed to that violation. Not only is this standard consistent with the COI’s
past precedent, it also has been publicly adopted by the enforcement staff in its charging
The COI’s neglect of the applicable standard in its Response was not inadvertent. 5
Although all parties concede that major violations occurred in this case, the COI never satisfied
4
The appropriateness of the unofficial visit limitation would fare no better even if the COI had
imposed it as an additional penalty under Bylaw 19.9.7-(l), which it did not do. Given the COI’s refusal
to explain its reasoning for the penalty in the Infractions Decision and the extraordinary length of the
penalty, it is plainly arbitrary, capricious, and/or irrational.
5
The COI cites two of its prior decisions for the proposition that “culture” alone may be
sufficient to support a finding of LOIC. In University of Alabama (February 1, 2002), the COI did not
make an LOIC finding despite criticizing the institution’s culture. In University of Southern California
(June 10, 2010), the COI cited specific examples of institutional failures (e.g., the institution’s lack of a
process to gather automobile registration information) that, separate and apart from any description of the
institution’s culture, supported the LOIC finding.
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the second prong of the applicable test by identifying an institutional failure that meets the high
burden for an LOIC finding. Instead, the COI presumes in the Infractions Decision and in its
Response to find a “culture” of noncompliance based solely upon the fact that multiple Level I
and Level II violations occurred. The LOIC finding is clearly contrary to the evidence because
the fact of violations alone, i.e., the first of two required elements, is not sufficient under the
The COI also erred in finding that the University failed to monitor booster Cannon Motor
Athlete 1] and [Student-Athlete 2]. The COI improperly faults the University for mistakenly
reaching the wrong conclusion on the facts known at the time. It also wrongly states that “there
was no system in place for campus parking services and the compliance office to communicate
Finally, the COI’s Response mischaracterizes the University’s position on issues related
to severance of the University’s football case, the result of which was procedural error. In truth,
the COI erred in considering only those negative facts from the women’s basketball and track
and field case without also taking into consideration the University’s exemplary conduct in
The COI’s stated theory with respect to LOIC is that, because so many violations
occurred in the University’s football program, the University must have fostered a “culture” of
noncompliance sufficient to singularly constitute a violation. See, e.g., COI Response, p. 21.
But all of the available evidence disproves the COI’s ipse dixit. There is no evidence, for
example, that the University lacked compliance systems or failed in its duty to educate
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employees and boosters about NCAA rules. Rather, the record plainly establishes that those
employees who committed intentional violations knew that they were violating NCAA bylaws
and actively sought to hide that fact from the University’s monitoring efforts. See, e.g., COI
Response, pp. 21 (“The panel acknowledged [the University’s] efforts to control its football staff
and boosters.”).
Nor is there evidence that the University tolerated violations in its football program once
those compliance programs brought relevant information to light. Indeed, coaches were fired,
contracts non-renewed, and extension requests were denied, all due to even the perception that
someone may have been involved in NCAA rules violations. The University’s “culture” was and
remains centered on the ideals of institutional integrity, honesty, and fair play.
At most, the University’s legitimate compliance efforts “failed.” COI Response, p. 22.
But the failure of such efforts does not automatically equate to a lack of control. To the contrary,
the NCAA charging guidance is clear that perfection is not expected. Acknowledging that
violations can happen even under the best of conditions, the NCAA requires only that a member
institution implement compliance processes and systems, properly educate the right people about
the rules, and then monitor its programs to prevent and/or detect violations. The University
satisfied all of these requirements. Thus, Violation IV.P. is clearly contrary to the evidence.
the COI not only departs from the NCAA’s publicly declared standard for LOIC findings, it also
effectively imposes a double punishment on the University for the existence of admitted
violations. LOIC is, as the NCAA charging guidelines indicate, a significant charge that is
separate and distinct from any underlying violations. As a result, LOIC requires a showing of
institutional culpability over and above the fact that violations occurred. Here, the COI has
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merged those analyses, concluding that the existence of violations means something about the
University’s “culture” that is not otherwise supported by the evidence. The result is that the
University is punished once for the underlying violation and again for that same conduct due to
the COI’s presumptive – but erroneous – inference. This double-counting turns the NCAA’s
charging guidance on its head and puts every institution at risk for an LOIC violation regardless
of its efforts to adopt, promote, and monitor compliance measures, no matter how extensive.
The COI’s Response presents a shifting rationale for its finding that the University failed
[Student-Athlete 1] and [Student-Athlete 2]. In the Infractions Decision, the COI asserted that
the University failed to follow up on information indicating potential violations in October 2013.
Infractions Decision, p. 51. After the University’s Appeal debunked that claim, the COI focused
on the fact that the University’s follow-up efforts “did not correctly determine whether [Student-
Athlete 1] had possessed [the Cannon Motors loaner vehicle] in a manner consistent with NCAA
But mistakenly reaching the wrong conclusion about the permissibility of [Student-
Athlete 1’s] use of a loaner vehicle does not equate to a failure to monitor by the University nor
does it point to a deficiency in the vehicle monitoring process. The COI ignores the fact that
[Student-Athlete 1] deliberately hid his loaner cars from compliance and lied about his
possession of them. The COI’s Principles of Institutional Control acknowledge this exact
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compliance with rules that are violated will not be considered to be due to a lack of institutional
control.”6
Indeed, the COI’s revised rationale appears to be that the failure of the University’s
compliance systems in these isolated instances means that those systems must have been
“inadequate.”7 COI Response, p. 23. Again, the COI fails to cite any evidence to demonstrate
this alleged “deficiency,” making only the conclusory statement that the fact of the violations
makes it so. See id. This is simply not how the NCAA’s charging guidance views a failure to
monitor, which, like LOIC, requires more than the fact of a violation to support a finding. See
NCAA Enforcement Charging Guidelines (Feb. 8, 2018), pp. 5-6 (“Accordingly, the
enforcement staff will not assume that an institution violated the NCAA Principle of Rules
Compliance when one or more violations may have occurred.”). The University appropriately
monitored its student-athlete’s vehicle usage, using best practices and a “spot check” system as
part of that process;8 it investigated the situation when it learned of information indicating
6
The COI contends that there “was no system in place for campus parking services and the
compliance office to communicate regarding [Student-Athlete 1’s] tickets.” COI Response, p. 22. The
COI is wrong. The University’s compliance staff learned directly from campus parking services that
[Student-Athlete 1] was using a loaner vehicle and that the vehicle had been ticketed on campus multiple
times. See, e.g., Appeal, p. 29. The University also obtained information crucial to uncovering the
violation involving [Student-Athlete 2] from campus parking services. See id. at p. 30 n. 24.
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The COI faults the University for providing [Student-Athlete 1] with student-athlete assistance
funds in March 2015 based on the estimated mileage of his proposed travel despite [Student-Athlete 1’s]
statements to the University that he did not have a vehicle at the time. COI Response, p. 23. To the
extent the COI seeks to imply that the University should have known [Student-Athlete 1] was in
possession of a loaner vehicle at that time, the COI is again wrong. Student-athletes, [Student-Athlete 1]
included, routinely request and receive money from the University’s student-athlete assistance fund for
travel to and from their homes during breaks in the academic year. The University either reimburses
those student-athletes directly for their expenses or, in situations such as [Student-Athlete 1’s], where the
cost of travel is less clear, estimates travel costs by several means and gives the student-athlete an amount
equal to the most conservative calculation.
8
In fact, the COI has recently identified “spot checks,” which the University was conducting
during this time period, as an example of appropriate monitoring efforts. See California State University,
Sacramento (April 19, 2018), pp. 28-29 (identifying the institution’s failure to “engage in periodic, but
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potential violations; and it also discovered violations on its own. Accordingly, the evidence does
When the COI severed the University’s football case from its women’s basketball and
track and field cases, it specified that, “when prescribing any institutional penalties (e.g.,
probation), the panel will remain mindful of the procedural history and that this case was
bifurcated.” Chief Hearing Officer Letter of June 2, 2016. This statement was meant to address
the University’s objection to any procedural mechanism that would subject it to heightened
penalties due to the fact that one case had become two. This objection was expressed in writing
and also on a joint telephone call with the enforcement staff and the COI’s chief hearing officer.
The COI then did exactly what it told the University it would not do. The COI reached back into
the prior infractions case to buttress its arguments for an additional violation and enhanced
penalties in this one. The COI’s conduct violated the principle of fundamental fairness and
Without ever acknowledging the chief hearing officer’s letter or the context in which that
letter arose, the COI accuses the University of manufacturing an objection to its severance
decision after the fact. In fact, the University’s primary proposal was that the entire case be
delayed until the entire investigation was concluded. The University offered severance not as an
alternative to its request for an overall stay of the proceedings but as a proposal to counter the
regular spot checking” as grounds for finding a failure to monitor). Both [Student-Athlete 1’s] first loaner
vehicle and [Student-Athlete 2’s] loaner vehicle were identified as part of the University’s spot checking
efforts. To be sure, as early as 2012, the University had been in full compliance with – and even
exceeded – the National Association for Athletics Compliance’s “Reasonable Standards” for vehicle
monitoring. Established as “a model for all institutions to follow as it relates to monitoring their
compliance with specific NCAA rules and providing education on those rules,” the “Reasonable
Standards” set the benchmark for compliant monitoring practices.
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alternative that the case might continue to move forward with all or some of the then-pending
football allegations included. In other words, the University adamantly did not want two football
cases before the COI and viewed severance as a better option. The COI nonetheless rejected the
University’s request and then later turned its purportedly procedural decision to the University’s
Finally, the COI’s assertion that the University “conceded at the hearing that it was
appropriate to consider” women’s basketball and track and field violations as part of this case is,
at best, misleading. Response, p. 24. When that exchange is viewed in proper context, it is clear
that the University did not make the kind of unqualified concession the COI now describes.
Instead, the University contended that, if the COI had already decided to consider women’s
basketball and track and field violations as part of its LOIC analysis, then it also must consider
the positive aspects of the University’s prior case, aspects which the COI aptly described as
follows: “I understand the institution uncovered those violations and jumped on them. We
appreciate that.” Hearing Tr. (Sept. 12, 2017), p. 286. The COI then took a radically different
approach, however, citing the negative aspects of the prior case as evidence of “culture” while
simultaneously failing to credit clearly relevant evidence of the University’s monitoring and
compliance efforts at work. The resulting prejudice to the University was procedurally improper
Contrary to how the COI’s Response attempts to characterize its position, the
University’s appeal of Violation IV.G. involving retailer Rebel Rags, Inc. (“Rebel Rags”), is not
dependent on any assessment of [Student-Athlete 39’s] credibility. Instead, consistent with the
applicable standard of review, the University contends that the finding is clearly contrary to the
evidence as a whole, of which [Student-Athlete 39’s] testimony is only a part. After considering
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the objective, unimpeachable data and the available, unbiased testimony, the COI’s finding as to
Additionally, the COI continues to rely upon a factually incorrect timeline as the
foundational support for its assessment of [Student-Athlete 39’s] credibility. The COI once
again errs in concluding that [Student-Athlete 39] and his teammate, [Institution 10]
(“[Institution 10]”) student-athlete [Student-Athlete 40], must have told the truth in their
enforcement interviews because they did not know each other when each of them spoke with the
enforcement staff in 2016. The COI’s misreading of the applicable testimony notwithstanding,
the undisputed facts establish that [Student-Athlete 39] and [Student-Athlete 40] knew each other
Finally, the COI’s claim that it had no authority to regulate the NCAA’s infractions
program is incorrect under the applicable bylaws. Pursuant to Bylaws 19.3.6-(h) and 19.7.6, the
COI is tasked with carrying out the “administration of the Association’s infractions program,”
and the COI’s chair and/or chief hearing officer are specifically given the power to resolve all
“procedural matters” – like the sharing of information consistent with the Internal Operating
Procedures – “that arise prior to an infractions hearing.” It strains credulity and reason to
suggest, as the COI does in its Response, that there is no remedy when that infractions program
is imposed unfairly and in a manner that does not comport with due process. The COI’s conduct
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According to the University’s office and unofficial visit files, which were in the record before
the COI, it is probable that [Student-Athlete 39] and [Student-Athlete 40] knew each other even earlier
than the summer of 2015. Records indicate that [Student-Athlete 39] and [Student-Athlete 40] both took
an unofficial visit to the University’s campus for the October 2014 football game against [Institution 10]
and would have been in close proximity during that visit.
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A. The COI Mistakes Credibility For Sufficiency.
In its University of Miami (October 22, 2013) decision, the COI explained that, when
assessing the credibility of a witness who has given “inconsistent statements and information,”
the proper course of action is to seek “corroboration through the statements of [other] individuals
... as well as ... through supporting documentation.” Id. at p. 3. Stated more simply, the COI’s
standard for allegations like this one – in which the individuals providing primary evidentiary
support for allegations are biased, tell inconsistent stories, and/or are contradicted by other
witnesses who are similarly situated – is to seek out objective documentation and information
from disinterested witnesses to corroborate or disprove what is alleged. The COI did not follow
Corroboration for the Rebel Rags allegations from uninvolved and unbiased individuals,
or from otherwise objective evidence, is entirely lacking. In fact, all of the objective evidence
First, the COI credits the testimony of [Family Member 1], [Student-Athlete 1’s] former
step-father, who claimed that a coaching staff member pre-arranged for him and his family to
select “up to $400 worth of merchandise” from Rebel Rags. COI Response, p. 15. As the COI
acknowledges, every other person who was present for [Student-Athlete 1’s] visit to the
University’s campus denied that [Family Member 1] was telling the truth about what happened.
Id.
In resolving the resulting discrepancy in [Family Member 1’s] favor, the COI ignored
[Family Member 1’s] obvious10 motive to fabricate harmful allegations against [Student-Athlete
10
[Family Member 1] and [Student-Athlete 1] were involved in a highly-publicized fist-fight in
June 2015 that [Student-Athlete 1] claimed was caused by [Family Member 1] physically assaulting his
18
1] and referred only to the fact that the University agreed with a handful of the nearly thirty-
some allegations [Family Member 1] made involving [Student-Athlete 1]. Yet, in doing so, the
COI violated its own guidance and ignored every available piece of objective evidence, none of
● The COI’s finding was premised on the idea that an assistant football coach had
pre-arranged the [Student-Athlete 1] family’s shopping trip by calling the owner
of Rebel Rags, but, according to the objective phone records, the only contact
between those two individuals occurred after [Student-Athlete 1] and his family
left Oxford, Mississippi, debunking any allegation that the assistant coach and
owner had pre-arranged anything. See Appeal, p. 36.
● Taking into account real-life price tags, [Family Member 1’s] description of the
items he and his then-wife allegedly received would have far exceeded the $400
purportedly allotted to the [Student-Athlete 1] family for free clothing and other
items, indicating [Family Member] could not have received the items he described
under the terms he alleged.
● [Family Member 1] was either never asked to produce the clothing items he
allegedly received from Rebel Rags or was unable to provide any evidence of
them to the enforcement staff, drawing into doubt their existence in the first place.
The resulting evidentiary picture clearly demonstrates the extent to which [Family
Member 1’s] claim is crushed under the weight of the contrary, objective evidence.
mother. [Family Member 1] then sued [Student-Athlete 1] seeking financial compensation for alleged
injuries related to the fight.
19
of this investigation and uniformly denied
anything improper occurred.
Such an evidentiary discrepancy establishes that the finding is clearly contrary to the evidence
Second, the COI applied the same type of analysis with respect to [Student-Athlete 39’s]
allegation regarding Rebel Rags, focusing only on his personal credibility. [Student-Athlete 39],
as the COI acknowledged in its Response, gave inconsistent and, in many places, conflicting or
factually untrue statements about Rebel Rags, necessitating (according to the COI’s standard)
COI Response, p. 16. But there is no such corroboration. As with [Family Member 1], all of the
unbiased individuals who would have normally had knowledge of [Student-Athlete 39’s]
possession of Rebel Rags-sourced merchandise – including his parents, cousins, and best friends
– deny that he had any such items. See, e.g., Appeal, p. 37.
Moreover, although the COI discounted the fact in its Response, the unchallenged,
objective sales records of Rebel Rags preclude [Student-Athlete 39’s] account. Id., p. 39. The
items [Student-Athlete 39] claims to have received simply are not included in any transaction on
any of the dates he unequivocally claims they were rung up at the register. Id. Furthermore, the
COI gave no credence to the fact that Rebel Rags has never used security tags that [Student-
Athlete 39] unequivocally said were removed as his items were processed at the register. See id.,
p. 37. Finally, [Student-Athlete 39], like [Family Member 1], was unable or unwilling to provide
any objective proof that he actually possessed the clothing items he claimed to have received. Id.
For these reasons, completely apart from his credibility, the evidence is wholly insufficient to
20
clothing items supposedly received)
His mother (who did not recall him having the
clothing items supposedly received)
His cousin, [Family Member 11] (who did not recall
him having the clothing items supposedly received)
His cousin, [Family Member 12] (who did not recall
him having the clothing items supposedly received)
His friend, [Student-Athlete 46] (who did not recall
him having the clothing items supposedly received)
Rebel Rags sales records
Affidavits from Rebel Rags employees
The lack of any security tags
The absence of any objective evidence of
the clothing items supposedly received
Finally, [Student-Athlete 40’s] allegations about Rebel Rags fall into the same category
as those made by [Family Member 1] and [Student-Athlete 39], and the finding as to him must
be vacated for the same reason. [Student-Athlete 40’s] claim was immediately suspect because,
Rags (a woman named “Emily”) who simply does not exist. Id. Going further, there is no
the objective data from Rebel Rags disproves [Student-Athlete 40’s] story about items being
scanned into the computer before he was allowed to leave with them; [Student-Athlete 40’s]
unbiased high school coach (who took [Student-Athlete 40] on four of his six unofficial visits to
the University) emphatically rejected [Student-Athlete 40’s] story as pure fiction; and other
recruits who were with [Student-Athlete 40] on the one of the visits in question, including those
who enrolled at institutions other than the University, denied that anything improper took place
The only other piece of evidence presented – a video of [Student-Athlete 40’s] mother
displaying certain clothing items to [Student-Athlete 40’s] defense attorney, which was produced
after the University’s Response was submitted and after the owner of Rebel Rags sued [Student-
21
Athlete 40] – was neither tested nor independent. The University sought to interview [Student-
Athlete 40] and his mother about the video, but both of them refused. Id., pp. 41-42. The
University also asked that the enforcement staff interview [Student-Athlete 40] and his mother,
but the enforcement staff declined. Id. As such, neither [Student-Athlete 40] nor his mother has
ever had to answer a single question about the video or the claims made therein. Under these
circumstances, there is no good reason to place any confidence in the accuracy of the video, and
thus no reason to credit the statements made therein. The objective evidence once again
In sum, this allegation fails because the objective evidence as a whole, even taking into
account the COI’s credibility determinations as to [Family Member 1], [Student-Athlete 39], and
[Student-Athlete 40], does not support and affirmatively refutes it. Therefore, Violation IV.G. is
Instead of correcting the factual error it made in the Infractions Decision about the timing
of the relationship between [Student-Athlete 39] and [Student-Athlete 40], the COI doubles-
22
down in its Response.11 See COI Response, pp. 17-18. In doing so, the COI gets it wrong again,
relying on [Student-Athlete 39’s] statement that he was first introduced to [Student-Athlete 40]
during his “first semester” at [Institution 10] and a mistaken assumption about when [Student-
Athlete 39] enrolled at [Institution 10] to assert that [Student-Athlete 40] met [Student-Athlete
39] during the summer of 2016. COI Response, pp. 17-18 (citing Hearing Tr. (September 11,
2017), pp. 232-33). But [Student-Athlete 39’s] enforcement interviews establish that he enrolled
early at [Institution 10], in the summer of 2015.12 FI No. 232, August 10, 2016 Interview Tr. of
[Student-Athlete 39], p. 5. Hence, [Student-Athlete 39] and [Student-Athlete 40] would have
known each other sometime in 2015, before [Student-Athlete 40’s] first interview with the
starting in August 2016, [Student-Athlete 39] and [Student-Athlete 40] were already teammates
at [Institution 10]. Hence, the COI cannot plausibly claim that [Student-Athlete 39] and
11
At one point in its Response, the COI appeared to present a slightly different argument,
claiming that its statement meant that the three involved individuals ([Family Member 1], [Student-
Athlete 39], and [Student-Athlete 40]) “did not know each other at the times they visited the retail store.”
COI Response, p. 3 (emphasis added). As a preliminary matter, the COI’s reformulation of this argument
presents the wrong frame of reference. The question was whether information might have been shared
amongst these individuals before their interviews with the enforcement staff. Regardless, even this
alternative formulation of the COI’s argument is false for the reasons described in the text – namely, that
[Student-Athlete 39] and [Student-Athlete 40] knew each other by the summer of 2015.
12
[Student-Athlete 39]’s enrollment date is confirmed by available public resources. See
“[Student-Athlete 39], [Institution 10], [Position 1],” available at: [Web Page 1] (indicating that [Student-
Athlete 39] enrolled at [Institution 10] on [Enrollment Date]); “List of freshmen football enrollees, plus
new numbers of returning players,” available at: [Web Page 2] ([Institution 10] athletics blog dated [Web
Page Date 1], listing [Student-Athlete 39] as having enrolled).
13
Practically, it makes sense that [Student-Athlete 39] and [Student-Athlete 40] would have met
during [Student-Athlete 40’s] senior year, when [Student-Athlete 39] was a freshman at [Institution 10].
[Student-Athlete 40’s] high school is located in [Location 10] which is also home to [Institution 10].
According to his high school coach, [Student-Athlete 40] went on official and unofficial visits to
[Institution 10], meaning that [Student-Athlete 40] would have in the same place at the same time as
[Student-Athlete 39] during the summer and fall of 2015. See July 25, 2017 Interview Tr. of [High
School Coach 1], pp. 8-9, 18.
23
[Student-Athlete 40] did not “kn[o]w each other” at the time of [Student-Athlete 39’s]
enforcement interviews. This basic error confirms the deficiencies in the factual underpinning
for the COI’s finding, rendering Violation IV.G. clearly contrary to the evidence.
COI Internal Operating Procedure 4-1 requires that the COI ensure a “fair and efficient
hearing.” In conjunction with that obligation, COI Internal Operating Procedure 4-6 provides
that all parties must be given access to “pertinent documents, submissions and information for a
case,” meaning “documents, submissions and information that could reasonably affect an
allegation or potential penalty against any party, or a potential defense for any party.” These
internal operating procedures track Bylaw 19.01.1, which states that the infractions process is
Yet, the University was denied relevant information about two key witnesses – [Student-
Athlete 39] and another [Institution 10] teammate, [Student-Athlete 46] – that the enforcement
staff possessed but refused to share with the University despite relying upon it in support of the
Rebel Rags allegation.14 Specifically, the enforcement staff declined to inform the University
that, after [Student-Athlete 39] signed his National Letter of Intent with [Institution 10],
[Student-Athlete 46’s] father gave him $10,000 outside [Institution 10]’s athletics complex. The
enforcement staff also did not tell the University that [Student-Athlete 39] believed the money
14
In the Notice of Allegations and at the hearing, the enforcement staff relied upon [Student-
Athlete 46’s] interview as supposedly independent corroboration of [Student-Athlete 39]’s allegation.
For example, when [Student-Athlete 39] was pressed on the absence of corroboration for his allegations,
the enforcement staff’s representative stated: “And [COI Panel Member 1], you had made some
statements about [Student-Athlete 39’s] cousins, I think one particular cousin, [Family Member 11],
stating that he didn’t believe he had seen [Student-Athlete 39] with gear, or an abnormal amount of gear,
something to that effect. I would draw the panel’s attention to an interview with [Student-Athlete 46]. I
think he speaks to his recollection of seeing [Student-Athlete 39] with Ole Miss-affiliated
merchandise.” Hearing Tr. (September 11, 2018), pp. 292-93 (emphasis added).
24
was intended to compensate him for choosing [Institution 10] over other institutions. This
payment, especially in light of [Student-Athlete 39’s] claim that a University booster gave him
the same $10,000 figure as an inducement to attend the University, is significant information that
goes to the heart of [Student-Athlete 39’s] credibility and [Student-Athlete 46’s] intrinsic bias to
The University made multiple requests that the COI utilize its authority to ensure it had
equal access to information relating to the NCAA’s investigation into [Institution 10] as it related
to [Student-Athlete 39], but the COI declined to provide any such relief. Incredibly, the COI
now claims it had no authority to take any action in response to the University’s requests. That
is simply not so. Under any plausible reading of Bylaws 19.3.6 (h) and 19.7.6, the COI cannot
unilaterally abdicate the responsibility to ensure that hearings are conducted fairly and in
accordance with its own Internal Operating Procedures. If the University had been allowed to
question [Student-Athlete 39] or review the information about his financial (and almost certainly
impermissible) relationship with a key supporting witness connected to [Institution 10], it would
have presented a defense that would have only further eroded [Student-Athlete 39’s] credibility
to the point where no one could have possibly believed what he said about Rebel Rags. 15
V. CONCLUSION.
The COI abused its discretion, departed from precedent, committed procedural errors,
and reached factual conclusions clearly contrary to the evidence. Accordingly, the University
requests:
15
Had this been a criminal proceeding, the enforcement staff’s failure to turn over evidence that
might have helped with the University’s defense of its case – even if that evidence did nothing more than
help undercut a witness’s credibility – would have been grounds for vacating the COI’s entire decision.
See, e.g., Brady v. Maryland, 373 U.S. 83 (1963). Regardless, this Committee should not sanction
inaction by the COI that deprived the University of due process in violation of the NCAA’s objective in
ensuring “fairness of procedures.” Bylaw 19.01.1.
25
That the postseason ban for the football program for the 2018 season be vacated (Penalty
VII.5.);
That the limitation on football unofficial visits for the full-term of the University’s
probationary period be vacated (Penalty VII.3.);
16
Violation IV.G. carries with it an additional penalty requiring the disassociation of the
allegedly involved booster. If this Committee vacates this finding, it should also vacate the disassociation
penalty.
26