In the days since the NCAA slapped Missouri’s football, softball and baseball programs with a one-year postseason ban, among other sanctions, the university has adopted a public slogan for its campaign to reduce the punishments: “Make it right.” Within the first couple minutes of his meeting with members of the local media Monday afternoon, athletics director Jim Sterk uttered what will become the more practical catch-phrase of an appeal that is already in the works.
Sterk said the members of the NCAA Committee on Infractions that reviewed Missouri’s case “abused their discretion” in handing down such harsh sanctions. Now, the school will try to prove that abuse of discretion to the NCAA’s committee on appeals in an effort to get some of the sanctions overturned. Monday, Sterk and director of compliance Andy Humes provided a glimpse into Missouri’s case.
Foremost in the school’s argument will be that the sanctions defied precedent. Sterk admitted that violations occurred. Through an internal investigation, Missouri found that a former tutor completed coursework for 12 student-athletes, and in its summary disposition, the school acknowledged that the violations constituted academic fraud. The NCAA designates academic fraud as a Level One violation, the most severe category.
But given that the COI found the former tutor, known to be Yolanda Kumar, to have acted alone, and based on NCAA rulings in similar cases, Sterk didn’t expect such severe penalties. To hit three teams with recruiting restrictions, scholarship reductions and a postseason ban, he said, was “unheard of.”
“There were some violations and we thought that probation could be something, or vacating wins,” Sterk said. “Beyond that, I think that's where it gets into the excessive range."
Sterk confirmed that, of the 12 student-athletes who were found to have received impermissible assistance from the tutor, nine participated in a game while ineligible. Of those nine, seven played football, one played baseball and one softball. According to Humes, Missouri’s investigation found that the softball player received assistance from the tutor on just five or six homework assignments, so he was particularly surprised that the softball team received the same sanctions as football and baseball.
Humes didn’t take issue with Level One designation of the violations, but he believes Missouri’s case shouldn’t have received the punishment prescribed for a standard Level One violation.
“Even with a classification this high, we feel that the penalties themselves, even within the matrix, don't follow precedent,” Humes said. “You don't see typically cases that don't involve recruit getting every single sub-type of recruiting (sanction). It hit every one of them, which is pretty rare."
Humes referenced Figure 19-1 in the NCAA bylaws, often referred to as the “violation matrix.” In a press conference about the COI decision, David Roberts, the head of the COI panel that investigated Missouri, pointed to the matrix (pictured below) as justification for the sanctions. Roberts essentially said the matrix prescribes punishment for violations based on their categorization, and Missouri’s punishments fit those given for a Level One violation.
Humes disagreed. He pointed out that NCAA Bylaw 19.9.6 allows the COI, under special circumstances, to give out penalties above or below the range suggested by the matrix. He also cited an example of a decision released the day after Missouri’s that differs drastically. Division-II Lynn University was found to have failed to properly certify student-athletes, resulting in 51 athletes across 14 sports competing while ineligible. The violations were categorized as Level One. Lynn’s sanctions? Two years of probation, vacation of wins, and a $5,000 fine.
“It seems strange when you see results, you know, other cases’ decisions coming out like that,” Humes said, “and then we have one softball and one baseball student that competed while ineligible.”
The primary reason Sterk and Humes believe Missouri shouldn’t have been given the penalties described in the violation matrix was the school’s cooperation with the NCAA in investigating the allegations. The COI report commended Missouri for its “exemplary cooperation.” Sterk said only “two or three schools in the last decade” have received exemplary cooperation from the COI. As a result, he thought the cooperation should have been given more weight in considering the sanctions.
In the same vein, Humes believes the COI should have given less weight to a Level One violation that occurred under the watch of former basketball coach Frank Haith. 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 COI report cited that violation as an aggravating factor in Missouri’s case, thus discounting some of the mitigating factors, but Humes believes it shouldn’t have been enough to offset all four mitigating factors — namely, Missouri’s exemplary cooperation. The sanctions for a “Level One, mitigated” violation outlined in the matrix allow for a postseason ban, scholarship reduction and recruiting restrictions not to be implemented.
“On its face, the number, four mitigating, two aggravating, it didn't seem that the decision had much discussion about weight,” Humes said. “So I think we think that's an issue, especially when one of those four mitigating is exemplary cooperation, which is really difficult to get and should carry significant weight, and it doesn't seem like any weight was attributed to it."
Sterk and Humes didn’t want to give away the entirety of Missouri’s appeal Monday, but they did identify a few other points they plan to argue. For one, Humes said, the scholarship reduction imposed by the COI is supposed to go into effect for the upcoming 2019 football season. Usually, he said, a scholarship reduction is slated for a season farther in the future so that the reduction occurs through natural roster attrition rather than removing a scholarship from a player who wasn’t involved in the violations. He also suggested that the COI relied too heavily on the testimony of the former tutor as opposed to the findings of the internal investigation led by Missouri and the NCAA enforcement staff. Kumar at one point offered to sell evidence in the case and, later, threatened to publicly disclose the names of the student-athletes involved. Sterk and Humes said the enforcement staff, which had no personnel overlap with the COI panel, agreed with the school that Kumar didn’t need to be named in the investigation. The COI disagreed.
“We were working with enforcement jointly and closely and I think they had a pretty good view of the former tutor, and some of the actions going forward, they saw that,” Humes said. “So I think they did have a pretty good understanding. I’m not sure that (the COI) ever really got that.”
Missouri has until Friday to file a notice that it will appeal the decision. After the NCAA responds, it will have another 30 days to submit the appeal itself. The NCAA website spells out a 110-day timeline for appeals to be processed, but Sterk estimated that the process will take longer. He expects a final decision to be reached in six months to a year.
Sterk dismissed the notion that Missouri could sue the NCAA if its appeal is unsuccessful, or that it might seek to leave the organization entirely as a result of the sanctions. He made sure Monday to distinguish between the NCAA as a whole and the COI panel that investigated Missouri. However, he spoke with the same gusto as the day the decision was announced in expressing his belief that the sanctions handed to Missouri, based on precedent, are unfair, and that the COI abused its discretion in assigning such penalties.
“It's a professional opinion that it wasn't a good decision,” Humes said. “And so we have to, as aggressively as we can, appeal that decision.”
