UNIVERSITY OF MISSISSIPPI

REBUTTAL TO THE COMMITTEE ON

INFRACTIONS RESPONSE TO
APPEAL OF INFRACTIONS REPORT NO. 487
CASE NO. 00561
 TABLE OF CONTENTS

I. THE COI ABUSED ITS DISCRETION BY IMPOSING A TWO-YEAR POSTSEASON

BAN ON THE UNIVERSITY’S FOOTBALL PROGRAM. ................................................. 1
A. The COI Provides No Explanation Why A Two-Year Postseason Ban Is Appropriate
Where The Penalty Is Otherwise Contrary To Precedent. ................................................... 2
B. By Giving “Significant Weight” To Decades-Old Infractions Cases, The COI Assessed
Penalties Based In Significant Part On An Improper Factor................................................ 4
II. THE COI’S LIMITATION ON UNOFFICIAL VISITS IS UNPRECEDENTED AND
UNAUTHORIZED. ................................................................................................................ 7
A. The COI’s Three-Year Limitation On Unofficial Visits Was Imposed As A “Core
Penalty.” ............................................................................................................................... 8
B. The Figure 19-1 Penalty Guidelines Do Not Provide For A Three-Year Unofficial Visit
Restriction For Any Case Classification. ............................................................................. 8
III. THE COI’S INSTITUTIONAL CONTROL FINDING IS CLEARLY CONTRARY TO
THE EVIDENCE. ................................................................................................................. 10
A. The COI Conflates The Existence Of Violations With A Culture of Noncompliance,
Unfairly Penalizing The University Twice. ....................................................................... 11
B. The COI’s Revised Criticism Of The University’s Efforts To Monitor Cannon Motors Is
Misplaced. .......................................................................................................................... 13
C. The COI Committed Procedural Error When It Considered Only Negative Factors From
The University’s Prior Infractions Case. ............................................................................ 15
IV. VIOLATION IV.G. IS CLEARLY CONTRARY TO THE EVIDENCE. ........................... 16
A. The COI Mistakes Credibility For Sufficiency. ................................................................. 18
B. The COI Continues To Rely On Misstated Facts In Support Of Its Finding. .................... 22
C. The COI Cannot Abdicate Its Responsibility To Ensure Fundamental Fairness In The
Infractions Process. ............................................................................................................ 24
V. CONCLUSION. .................................................................................................................... 25

i
 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

findings by invoking credibility as a means of precluding this Committee from engaging in

meaningful appellate review.

I. THE COI ABUSED ITS DISCRETION BY IMPOSING A TWO-YEAR

POSTSEASON BAN ON THE UNIVERSITY’S FOOTBALL PROGRAM.

It is undisputed that a postseason ban is a powerful penalty that significantly impacts a

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

program is contrary to decades of precedent.

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

million financial penalty, is appropriate or demonstrate that it considered the University’s

cooperative efforts and self-imposed penalties, including a one-year postseason ban. All that can

1
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

Response changes this result. This penalty should be vacated.

A. The COI Provides No Explanation Why A Two-Year Postseason Ban Is

Appropriate Where The Penalty Is Otherwise Contrary To Precedent.

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

COI’s penalty of a second postseason ban is contrary to all precedent.

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

2
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

as an element of fundamental fairness.”). Indeed, when reviewing the COI’s imposition of

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

therefore, abused its discretion”).

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.

3
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

in imposing a two-year postseason ban requires that the penalty be vacated.

B. By Giving “Significant Weight” To Decades-Old Infractions Cases, The COI

Assessed Penalties Based In Significant Part On An Improper Factor.

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

4
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

and fair play.

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

passed since the institution's most recent infractions case”).

5
 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

this case. The COI’s silence speaks volumes.

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

6
“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

comply with terms of probation from prior cases).

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

COI did not acknowledge institution’s “powerful self-imposed penalty”).

II. THE COI’S LIMITATION ON UNOFFICIAL VISITS IS UNPRECEDENTED

AND UNAUTHORIZED.

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.

7
 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

belated attempt to re-characterize the three-year unofficial visit limitation as an “additional”

penalty imposed under Bylaw 19.9.7-(l) is clearly belied by the plain text of the Infractions

Decision.

B. The Figure 19-1 Penalty Guidelines Do Not Provide For A Three-Year

Unofficial Visit Restriction For Any Case Classification.

Core recruiting restriction penalties are set out in the Figure 19-1 penalty guidelines.

Adhering to the guidelines, the University appropriately self-imposed a seven-week prohibition

8
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 –

Aggravated case, which this is not.

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.

9
support for that departure, the COI abused its discretion by imposing the unofficial visits penalty

and it should be vacated.4

III. THE COI’S INSTITUTIONAL CONTROL FINDING IS CLEARLY CONTRARY

TO THE EVIDENCE.

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

documents, which describe the same two-part test:

A lack of institutional control is found when the Committee on Infractions

determines that major violations occurred and the institution failed to display:

● Adequate compliance measures.

● Appropriate education on those compliance measures.
● Sufficient monitoring to ensure the compliance measures are followed.
● Swift action upon learning of a violation.
“Enforcement Process: Charging,” available at: http://www.ncaa.org/enforcement/ enforcement-

process-charging (emphasis added); see also NCAA Enforcement Charging Guidelines

(February 8, 2018), pp. 3-4.

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.

10
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

applicable two-pronged standard.

The COI also erred in finding that the University failed to monitor booster Cannon Motor

Company (“Cannon Motors”) in the provision of loaner vehicles to student-athletes [Student-

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

regarding [Student-Athlete 1’s] tickets.”

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

detecting virtually every single violation involving those sports programs.

A. The COI Conflates The Existence Of Violations With A Culture of

Noncompliance, Unfairly Penalizing The University Twice.

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

11
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.

Further, by focusing on amorphous allegations about the University’s so-called “culture,”

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

12
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.

B. The COI’s Revised Criticism Of The University’s Efforts To Monitor

Cannon Motors Is Misplaced.

The COI’s Response presents a shifting rationale for its finding that the University failed

to monitor Cannon Motors’s provision of impermissible loaner vehicles to two student-athletes,

[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

legislation.” COI Response, p. 23.

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

scenario: “deliberate or inadvertent violation of a rule by an individual who is not in charge of

13
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.
7
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

14
potential violations; and it also discovered violations on its own. Accordingly, the evidence does

not support the COI’s position on Cannon Motors.

C. The COI Committed Procedural Error When It Considered Only Negative

Factors From The University’s Prior Infractions Case.

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

constitutes procedural error.

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.

15
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

substantive disadvantage in the Infractions Decision.

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

and should result in the vacatur of Violation IV.P.

IV. VIOLATION IV.G. IS CLEARLY CONTRARY TO THE EVIDENCE.

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

16
the objective, unimpeachable data and the available, unbiased testimony, the COI’s finding as to

Rebel Rags does not stand up under any appropriate measure.

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

since at least the summer of 2015.9

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

was procedural error that resulted in an erroneous finding of a violation.

9
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.

17
 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

that standard in making its findings about Rebel Rags.

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

serves to disprove what was alleged.

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

which supported [Family Member 1’s] story. In particular:

● 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.

SUPPORTING THE FINDING CONTRADICTING THE FINDING

[Family Member 1] [Student-Athlete 1]
[Family Member 2]
[Family Member 3]
[Family Member 5]
Rebel Rags sales records
Affidavits from Rebel Rags employees
An objective valuation of the items [Family
Member 1] claimed to have received
The absence of any objective evidence of
the clothing items supposedly received
Coaching staff phone records
Thirteen former and current student-athletes
were asked about Rebel Rags over the course

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

and dictates that this panel vacate Violation IV.G.

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)

some level of corroboration by independent witnesses or objective documentation. See, e.g.,

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

support the Rebel Rags finding as to [Student-Athlete 39].

SUPPORTING THE FINDING CONTRADICTING THE FINDING

[Student-Athlete 39] His father (who did not recall him having the

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,

as the enforcement staff concluded, he affirmatively accused a purported employee of Rebel

Rags (a woman named “Emily”) who simply does not exist. Id. Going further, there is no

corroborative evidence or independent witness who supports [Student-Athlete 40’s] assertions:

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

with respect to Rebel Rags. See id., pp. 37-40.

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

drastically tilts against the finding.

SUPPORTING THE FINDING CONTRADICTING THE FINDING

[Student-Athlete 40]
Video of [Student-Athlete 40’s] The number of visits that his high school coach
mother from his legal counsel
His high school coach (who did not recall him
having the clothing item supposedly received and
denied he could have obtained those items)
took him on, which, in conjunction with the high
school coach’s interview, rule out him having
received clothing items as alleged
The phantom “Emily”
Rebel Rags sales records
Affidavits from Rebel Rags employees
The absence of any objective evidence of
the clothing items supposedly received
Thirteen former and current student-athletes
were asked about Rebel Rags over the course
of this investigation and uniformly denied
anything improper occurred.

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

clearly contrary to the evidence and must be vacated.

B. The COI Continues To Rely On Misstated Facts In Support Of Its Finding.

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

enforcement staff in February 2016. 13

Further, it remains undisputed that, at the time of [Student-Athlete 39’s] interviews

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.

C. The COI Cannot Abdicate Its Responsibility To Ensure Fundamental

Fairness In The Infractions Process.

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

“committed to fairness of procedures.”

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

protect his father and the [Institution 10] football program.

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.);

 That the factual finding as to Violation IV.P. be overturned; and

 That the factual finding as to Violation IV.G. be overturned. 16

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