Attorney: Missouri's sanctions 'not surprising,' appeal a long shot
In the two days since the NCAA slapped the Missouri football, baseball and softball teams with a one-year postseason ban and other sanctions in response to a former athletics department tutor completing coursework for 12 student-athletes, the school’s reaction has consisted largely of surprise and outrage. In a statement released less than an hour after the NCAA report, athletics director Jim Sterk used the words unfair, unjust and unprecedented to describe the decision. Board of Curators chairman Jon Sundvold was even more harsh, calling the ruling a mistake that “erodes the credibility” of the NCAA in a Friday statement.
But Stu Brown, an Atlanta-based attorney who has specialized in NCAA cases for the past 20 years, said the sanctions didn’t surprise him. At least according to the letter of the law, Brown said, the punishment fit the crime.
“It was not surprising that the committee imposed the sanctions that it did,” Brown said. “What we would generally call academic fraud was established, and it was pretty clear in this case, and the school admitted that it occurred. And that is going to be considered a Level One violation.”
Brown, a former assistant basketball coach at Wake Forest and Vanderbilt who has since authored a report on the role of outside counsel in NCAA infractions cases and built a reputation on trying such cases, said the reason for that assertion stemmed from Chapter 19 of the NCAA bylaws — specifically, the “violation matrix.” The matrix lays out consequences for different categories of NCAA infractions, which range from Level Four (the least severe) to Level One. Within each category, the NCAA Committee on Infractions (COI) has some discretion as to the severity of its sanctions based on aggravating and mitigating factors.
While some of the blowback about Missouri’s punishment stems from the fact that only one former tutor provided the impermissible academic benefits — the NCAA concluded in its report that the tutor, known to be Yolanda Kumar, did not act under the direction of a superior in the athletics department — Brown said the violations committed at Missouri clearly qualify as Level One infractions. In fact, during a conference call with reporters Thursday, David Roberts, the spokesperson for the panel that investigated Missouri, said the university admitted that the former tutor’s actions constituted Level One violations. As such, Brown explained, the NCAA simply followed its existing protocol in handing down sanctions.
“The Committee on Infractions says we’re going to classify this as a Level One standard case because of how long it went on and how many players were involved,” Brown said. “Once they make that determination, now there is a pretty structured set of penalty guidelines.”
Missouri has not disputed the nature of the violations. Rather, Sterk’s argument has been that Missouri’s willingness to self-report the violations, launch an internal investigation and cooperate with the NCAA probe should have further mitigated the consequences from the standard Level One sanctions. During a conference call with reporters Thursday, he said that will be the basis of the school’s appeal.
Head football coach Barry Odom took specific issue with the recruiting limitations and scholarship reductions included in the sanctions. Since the violations didn’t involve recruiting, Odom said, why should recruiting be hurt by the punishment? Likewise, he maintained that the players who will be hurt by the scholarship reduction had nothing to do with the initial violations.
“It had zero to do with recruiting infractions,” Odom said. “You talk about loss of scholarship, that’s affecting kids’ lives. That’s affecting opportunity for a kid to go get a degree, to have the student-athlete experience at the University of Missouri, through no fault of them or no fault of anyone that’s in a leadership position at this point at the University of Missouri. So for me personally, there were a number of surprises in what we received back, but those two (stood out).”
Brown said the NCAA bylaws do allow for less severe sanctions for a Level One violation than were handed to Missouri. The COI could have neglected to enact the one-year postseason ban, for instance, or placed the university on probation for two years instead of three because of Missouri’s cooperation. But he does not view the recruiting restrictions or scholarship reduction as unusual, even in an academic fraud case. When the NCAA adopted the current violation matrix, the understanding was that a “standard” (neither mitigated nor aggravated) Level One violation would carry a consequence from each or most of eight categories: probation, postseason ban, fine, scholarship reduction, show-cause order, head coach suspension and recruiting restrictions. No Missouri coaches were suspended as a result of this investigation, but Brown sees the other punishments as standard.
“I think it’s understandable that the committee would impose recruiting restriction or penalties even when it’s not a recruiting case, and that could be the same as the committee imposing scholarship reduction penalties on cases that really don’t involve extra financial aid,” he said. “That’s kind of the nature of things under this current system.”
Brown believes the COI opted to align its sanctions more closely with those prescribed in the case of “standard” Level One violations rather than “mitigated” violations for two reasons. Most importantly, Missouri apparently agreed that its infractions constituted a standard Level One case. The COI report on the case read “Missouri admitted that the case was a ‘low-end (tending toward mitigated) standard case’ or an ‘upper-end mitigated case.’” Plus, this wasn’t Missouri’s first Level One infraction. In August of 2016, the athletics department was cited for failure to monitor its basketball program after student-athletes and a recruit received impermissible benefits from a booster.
“(The violations) were within the last five years," Brown explained. "And really they were within the last two or three years of when this conduct took place. ... That’s the kind of thing where the committee puts extra weight on that as an aggravating factor."
Even though there is room for Missouri’s penalties to be mitigated based on its cooperation, Brown isn’t optimistic about the prospects of the school’s appeal.
“Nothing’s changing,” he said bluntly.
For one, Brown said, the appellate process heavily favors the COI. Plus, the appeals committee won’t evaluate the case in the same manner as the investigatory panel. In order to win its appeal, Missouri must either prove that its violations didn't constitute Level One infractions, or that the COI exhibited an “abuse of discretion” in handing down sanctions. Since the COI can point to the prescribed punishments in the violation matrix and argue that it could have been harsher on Missouri had the university not cooperated (which is technically true), Brown doesn’t envision the appeal changing much.
Brown’s reasoning: “The infractions appeals committee, they say, ‘Hey, we might have decided something differently, we might have imposed lesser penalties. Missouri, we agree with you that the penalties could have been lighter, we agree with you that the value of your mitigating conduct could have been given more weight. But we can’t say, based on the record, that the committee on infractions abused its discretion.’”
Much of the public outcry against the NCAA’s decision has stemmed from a feeling that the ruling in this case is inconsistent with other recent cases concerning academic fraud. The example that has been cited most frequently was an investigation into fake classes at North Carolina, which was resolved in October 2017. North Carolina ultimately didn’t receive any sanctions because it stood by the legitimacy of its classes, and the NCAA deemed that it had no jurisdiction over the quality of education a university provides. Other recent decisions make the decision in Missouri’s case appear harsh, too. Within the past three years, Louisiana-Monroe, Northern Colorado and Georgia Southern have all been cited for Level One violations stemming from students receiving impermissible academic assistance. None of those schools received a postseason ban. Only one, Northern Colorado, received any recruiting restrictions — and its violations stemmed from completing coursework for prospects before they got to campus.
Somewhat ironically, the consequences most similar to those handed to Missouri were given to North Carolina, but in an earlier investigation than the one into fake classes. In 2012, the Tar Heel football program got hit with a one-year postseason ban, three years of probation and a scholarship reduction after a former tutor was found to have completed coursework for 11 student-athletes. (It is also worth pointing out that the investigation also found that some players had accepted illicit benefits from a sports agent with the aid of an assistant coach.)
Both Missouri administrators and national onlookers have argued that the severity of this ruling incentivizes schools not to cooperate with the NCAA. Since the COI listed Missouri’s admission that the actions of the former tutor constituted Level One violations as a factor in its report, the thinking goes, why not refuse to cooperate and insist that no wrongdoing occurred, like in North Carolina’s most recent case?
Brown can understand the argument that Missouri’s case didn’t deserve more severe sanctions than North Carolina, which offered the classes in question for more than a decade. In fact, he characterized North Carolina’s defense of its classes as “hypocritical and reprehensible.” But he doubts the Tigers would have been in a better position had they refused to cooperate. He quipped that, had Missouri found that the former tutor completed coursework for students then denied that her actions occurred, it would have been “fake news.”
“In this case, given the evidence, even if Missouri had wanted to fight and say that this did not occur, how are they really going to fight it?” Brown said. “And that’s why I think Missouri was focused on trying to get this to Level One mitigated, and that’s why what I’ve seen of Missouri’s public response is that there is some disappointment that they did not get more credit for what was agreed was ‘exemplary cooperation.’”
Missouri will continue to argue in front of the appeals committee that it deserves lighter consequences as a result of that exemplary cooperation. But while the Missouri fans, coaches and administration have united in their outrage over the NCAA’s decision, Brown doesn't believe that the facts of the academic fraud case offer a compelling argument that the COI abused its discretion. Brown said he understands Missouri's case for lighter sanctions, but based on two decades of experience, he doesn't deem relief likely.