NCAA Division I Infractions Appeals Committee: California State University, Northridge

California State University, Northridge ("CSUN") appealed the specific prescription of penalties by the NCAA Division I Committee on Infractions ("Committee" or "hearing panel"). CSUN appealed the following penalties:

V.1. Probation: three years of probation from December 16, 2022, through December 15, 2025; and

V.2. Financial Penalty: CSUN shall pay a fine of $5,000 plus one percent of the men’s basketball budget.

CSUN also challenged the application and weighing of the following aggravating and mitigating factors:

Affording of significant weight to Bylaw 19.9.3-(b) - a history of Level I, II or major violations by the institution;

Application of Bylaw 19.9.3-(m) - intentional, willful or blatant disregard for the NCAA constitution and bylaws;

Nonapplication of Bylaw 19.9.4-(e) - implementation of a system of compliance methods designed to ensure rules compliance and satisfaction of institutional/coaches’ control standards; and

Affording of normal weight to Bylaw 19.9.4-(f) - exemplary cooperation.

Standard of Review

In reviewing the decision in this case, both the application and weighting of aggravating and mitigating factors as well as the prescription of penalties by the Committee may be set aside on appeal by the Infractions Appeals Committee ("Appeals Committee") on a showing by the appellant that the prescription of the penalty was an abuse of discretion. As we stated in the Alabama State University case:

“...we conclude that an abuse of discretion in the imposition of a penalty occurs if the penalty: (1) was not based on a correct legal standard or was based on a misapprehension of the underlying substantive legal principles; (2) was based on a clearly erroneous factual finding; (3) failed to consider and weigh material factors; (4) was based on a clear error of judgment, such that the imposition was arbitrary, capricious, or irrational; or (5) was based in significant part on one or more irrelevant or improper factors.”

Alabama State University, Infractions Appeals Committee Report (June 30, 2009) Page No. 23.

CSUN argued that it was a clear error in judgment by the hearing panel: (1) to apply the aggravating factor regarding the intentional, willful or blatant disregard for the NCAA constitution and bylaws; (2) to fail to apply the mitigating factor regarding implementation of a system of compliance methods designed to ensure rules compliance and satisfaction of institutional/coaches’ control standards; (3) to afford significant weight to the aggravating factor regarding a history of Level I, II or major violations by the institution; and (4) to afford only normal weight to the mitigating factor regarding exemplary cooperation.

Application of Aggravating Factor Bylaw 19.9.3-(m) - Intentional, Willful or Blatant Disregard for the NCAA Constitution and Bylaws.

CSUN argued that the hearing panel incorrectly applied the aggravating factor of intentional, willful or blatant disregard for the NCAA constitution and bylaws after misreading the standard articulated by the Appeals Committee in a previous appeals decision. Specifically, the hearing panel’s interpretation of the standard was that “head coach responsibility violations ‘by their nature... involve action or inaction by leaders of sports programs and demonstrate a culture of active or permissive noncompliance in the program – thus establishing an institutional nexus.’” The institution stated that “by this logic all cases with head coach responsibility violations and this aggravator for an individual should result in the institution also receiving that aggravator.” Additionally, CSUN argued that there are no specific actions or inactions by CSUN relevant to the violations at issue to support application of the aggravating factor. The record clearly indicated that the men’s basketball coaches and staff members had received education on the rule, the rule was clearly understood, and the involved individuals deliberately disregarded the rule in a manner designed to avoid detection of the violations. In response, the hearing panel presented two arguments to support the application of this aggravating factor to CSUN. First, the hearing panel stated that the finding of a head coach responsibility violation demonstrates the necessary institutional nexus, concluding that Bylaw 19.9.3-(m) applies due to the former head men’s basketball coach’s direct actions in the violations and passive inactions in failing to monitor his staff’s involvement in the violations. Second, there were several facts that the hearing panel believed showed CSUN’s inactions contributed to the violations in this case. Specifically, the hearing panel pointed to:

1. Compliance personnel at the expedited hearing noted concerns about the compliance efforts of the men’s basketball staff and the potential that members of the coaching staff could be hiding violations from compliance;

2. The limited attendance by men’s basketball coaches at formal education sessions during the recruiting dead period and the determination to move to informal touchpoints for those coaches;

3. Claims by the former head coach that he requested meetings between the men’s basketball staff and compliance, but those meetings did not occur;

4. Indication that there were no changes made to compliance efforts when COVID- 19 guidelines required CSUN’s compliance staff and other administrators to work from home;10 and

5. Statements by compliance staff indicating they had no reason to believe the former head coach was following advice pertaining to head coach responsibility, but never acting upon those concerns.

In the Georgia Institute of Technology Infractions Appeals Committee Decision (February 26, 2021), the Appeals Committee determined that when applying aggravating factor 19.9.3-(m) to an institution due to the actions of a staff member “...there must be a nexus or connection of action or inaction by the institution relevant to the violation. The nexus must be beyond mere employment status of the individual at the institution when the violation occurred. For example, the institution’s action or inaction will present itself in the context of an institution demonstrating a lack of control over, or a failure to monitor, its intercollegiate athletics program, or where the head coach fails to create an atmosphere of compliance or fails to monitor his/her staff. To be clear, these specific findings of violations are not required in an infractions case for the aggravating factor to apply to an institution. There must, however, be some specific factual findings of action or inaction by the institution relevant to the violation for the aggravating factor to apply to an institution.”

The hearing panel’s position (that the presence of a head coach responsibility violation, in and of itself, constitutes an institutional nexus which supports the application of aggravating factor 19.9.3-(m) to the institution) runs counter to the precedent set in the Georgia Tech case prohibiting applying the aggravating factor to the institution due to the mere employment status at the time of the violation(s) by those involved in the violation and would result in the strict liability assessment that the Georgia Tech decision specifically sought to avoid. To impute the intentional, willful and blatant disregard for NCAA bylaws by an individual to an institution, additional specific actions or inactions by individuals outside the sport athletics staff involved in the violations here (e.g., failure to provide adequate rules education, condoning the impermissible activity or unethical conduct) must be identified. More than just mere employment of the individuals who violated the rules must be demonstrated for the Bylaw 19.9.3-(m) aggravating factor to be applied to the institution. The purpose of the nexus requirement is to be fair to an institution where individuals outside of the sport athletics staff involved in the violations acted in good faith and took reasonable steps to educate, monitor and create an atmosphere of compliance across the department. The institution remains accountable through the finding of a Level I or Level II violation and the prescribed penalties, and the focus remains where it should be – on the individual(s) who knew and understood the rules but willfully and blatantly acted outside the scope of their employment in an effort to gainanadvantage. In this case,(1)CSUN provided education to the coaches and staff about the rules involved in the violation over the course of the COVID-19 dead period; (2) CSUN personnel were able to determine that the actions of the basketball staff were violations of NCAA bylaws and report them to the NCAA within 72 hours of those actions occurring; (3) the violations did not involve persons with education responsibilities and/or oversight authority outside of the sport athletics staff; (4) the involved coaches failed to communicate with the compliance office and took steps to prevent detection (e.g., tryout was off campus); and (5) the involved coaches knowingly violated the rules, which exceeds the scope of their employment.

While the hearing panel alternatively argued some generalized inaction regarding the education and monitoring efforts and relied heavily on the former head coach’s hearing testimony regarding the educational efforts and his perceived ambiguity of the applicable rules, there is ample information in the record that demonstrates a clear error in judgment by the hearing panel in the determination that institutional inactions or actions contributed to the individual violations perpetuated in this case such that the application of the aggravating factor appears arbitrary. The men’s basketball staff were fully educated about, and, most importantly, were aware of the application of the unambiguous dead period rule they were attempting to circumvent. The hearing panel acknowledged in its decision that “[t]he [former] head coach admitted he knowingly committed violations,” and that the “three experienced men’s basketball coaches disregarded fundamental recruiting legislation.” Further, the hearing panel noted that “[i]n the SDR, the [former] head coach admitted that he knew the timing of the prospects’ visits did not comply with NCAA rules” and the “[former] head coach’s desire to sign the prospects outweighed his desire to comply with the recruiting dead period and to ensure his staff complied with NCAA legislation.” The case record clearly shows that the coaches received appropriate education as to the rule at issue, and the only ambiguity raised by the involved coaches was whether the COVID-19 dead period would be extended past the May 31, 2021, end date. The list of permissible and impermissible activities during the COVID-19 dead period remained consistent with all previous dead periods. The men’s basketball staff knew the rules;19 they just questioned whether the dead period would be extended. In fact, the former assistant coach knew that they could not provide a shirt and shorts for a workout during a dead period, but still instructed a graduate assistant to find the gear, but have the prospective student-athlete “only wear it at the park” to escape detection. The question of whether there would be an extension past May 31 is ultimately irrelevant, as the conduct occurred before May 31, which is well within the then-current dead period. Further, the unambiguous nature of this straightforward rule and institutional education efforts, including email notifications, social media, Zoom calls, text messages and phone calls, resulted in an understanding of the application of the dead period rule and restrictions on visits across the athletics department staff. This “compliance conscience” was demonstrated by the fact that concerns regarding the conduct were appropriately and immediately elevated to compliance by other athletics department staff members who learned about the activities when the prospective student-athletes were on campus. The relevant issue here is whether the coaches and staff were provided education about the dead period (e.g., time period, permissible/impermissible activities) and whether those individuals received that information prior to the violations occurring. No in-person on- or off-campus contact during a dead period is a simple, long-standing, fundamental recruiting rule, and the case record clearly demonstrated that the coaches and basketball staff were educated about it and understood their actions were contrary to it.

The hearing panel also cited the compliance staff’s failure to act on their concern that the former head coach was not following their advice pertaining to head coach responsibility. Head coach responsibility is just that...the head coach’s responsibility. “The head coach ha[s] an independent, non-delegable duty,” and even where there may be some concerns about the “broader shortcomings” of a compliance office, “they in no way undermine the head coach’s...duties and responsibilities....under Bylaw 11.1.1.1.” It is the head coach’s responsibility to follow any advice from the compliance staff regarding the rebuttable presumption. By holding the compliance office (and by extension, the institution) in any way responsible for a coach’s failure to follow the education and advice provided to them is to unreasonably shift the responsibility away from the coach, and it does not constitute an intentional, willful or blatant disregard of the rules by an institution.

Finally, the hearing panel expressed concern that no changes were made to compliance efforts when COVID-19 guidelines required the compliance staff and other administrators to work from home. The COVID-19 pandemic and its associated local, state and national restrictions resulted in many challenges and required institutions and individuals to pivot to new ways of doing business. Many grappled with how to abide by the restrictions and still provide a similar level of service, and the CSUN coaches and staff were no exception. The hearing panel declined to apply aggravating factor 19.9.3-(o) (based on violations occurring during the COVID-19 dead period) “because the institution took reasonable steps to comply with the dead period and promote health and safety on campus.” In declining to apply the factor, the panel, as its rationale, cited the Louisiana State University Committee on Infractions Decision (September 22, 2022) (“where the institution took appropriate measures to attempt to prevent violations of the COVID-19 recruiting dead period.”) To assess the steps taken by the institution and, by inference, the compliance staff during the COVID-19 recruiting dead period as sufficiently reasonable to avoid the application of an aggravating factor based on the violations occurring during the COVID-19 dead period, but so insufficient as to be a contributing factor for conduct characterized as an intentional, willful or blatant disregard of the rules is arbitrary and capricious.

For the reasons cited above, the Appeals Committee determeimnd the application of aggravating factor 19.9.3-(m) by the hearing panel was an abuse of discretion and it shall be vacated.

Application of Mitigating Factor Bylaw 19.9.4-(e) - Implementation of a System of Compliance Methods Designed to Ensure Rules Compliance and Satisfaction of Institutional/Coaches’ Control Standards.

CSUN argued that the hearing panel failed to adhere to the Committee on Infractions’ articulated standard of applying the mitigating factor when an institution has compliance systems in place at the time of the violation and those systems detected the violations in a timely manner. Specifically, the hearing panel arbitrarily applied a requirement that CSUN’s compliance systems ensure satisfaction of head coach control based on only the involvement of the former head coach. CSUN argued that it had education and monitoring systems in place which are similar to the most recent case precedent in the LSU Committee on Infractions Decision and that the institution’s systems and personnel were able to determine that the actions of the men’s basketball staff were violations of NCAA bylaws and report them to the NCAA within 72 hours of those actions occurring. Yet, CSUN was not treated similarly in the application of this mitigating factor.

The hearing panel argued that it was not applying a new or higher standard when it did not apply the mitigating factor, but rather relied on the text of the applicable bylaw. Additionally, the hearing panel believed that the facts of the case were distinguishable when reviewing case precedent. Specifically, the hearing panel noted that: (1) education and monitoring efforts by CSUN were form over substance rather than tailored and comprehensive; (2) the record of interactions between the compliance office and themen’s basketball staff provided minimal insight into the substantive nature of those interactions; and (3) CSUN’s efforts failed to promote a culture of compliance within its men’s basketball program, rather the coaches’ conduct evidenced a comfortableness infreely engaging in blatant violations of fundamental recruiting legislation. While acknowledging some level of the compliance staff’s education efforts, the hearing panel noted a failure to pivot and enhance monitoring efforts during periods when on-campus compliance interactions were not available due to COVID-19 restrictions.

As an initial point, Appeals Committee noted that the hearing panel did not find a failure to monitor or that CSUN lacked institutional control. However, the hearing panel did question the specific monitoring decisions CSUN made regarding the men’s basketball program in light of state and local COVID-19 restrictions limiting compliance staff’s ability to remain on campus as it relates to the application of mitigating factor 19.9.4-(e). Practical examples to support the hearing panels’ blanket determination that CSUN should have pivoted and done “more” to prevent the violation at issue are lacking. This concept of an “open-faced” belief that more was needed becomes doubly confounding and arbitrary when the compliance environment created across the full athletics department resulted in the conduct being questioned by a noncoaching athletics staff member in real time and, after consultation with coaches for other sports, concerns were self-reported to compliance by that noncoaching athletics staff member and those coaches shortly after the conduct resulting in the violations took place (i.e., within 72 hours). When questioned by Infractions Appeals Committee members during the oral argument to articulate what more could have been implemented by CSUN to detect the violations as they happened, the hearing panel suggested daily review of on-campus security footage. Implementing this suggestion, however, would have resulted in significant time and expense, (e.g., the review of campus security footage during the investigation occurred only with the assistance of campus police and after they determined it was permissible under state law), and would not have detected the violations that were deliberately undertaken off campus to purposely avoid detection.

Regardless, the information shows that the men’s basketball staff was well aware that their actions and the actions they asked other staff to engage in were not permissible, and they deliberately used extensive, surreptitious methods in an attempt to avoid being caught.The compliance staff made efforts to be accessible to the coaches to answer questions, but the coaching staff seemed unwilling to adapt to the changing environment. The coaches preferred in-person interactions, and they were unhappy that state and local restrictions prevented the compliance staff from being in the office with them.

Notwithstanding the compliance staff’s remote work, they communicated with men’s basketball staff about the recruiting dead period every few weeks from early March 2021 until April 15, 2021, one week before the coaches committed the violation and one day before the coaches started planning the impermissible visits. The men's basketball compliance administrator “had four phone calls with [the former head coach] during [the time period when the coaches were] planning and participating in the prospects’ impermissible visits.” While the coaches in their interviews and at the Committee on Infractions hearing lamented about the lack of availability of the compliance staff, the evidence clearly shows that there was regular interaction between the two staffs, and the coaches had the opportunity to ask questions of the compliance staff but chose not to do so. That is a failure of the coaching staff, not the compliance systems.

Additionally, the hearing panel attempted to distinguish the compliance systems in this case from its recent application of the mitigating factor in the LSU Committee on Infractions Decision, which assisted its overall classification of Level II-Mitigated. The hearing panel noted LSU’s specifically tailored education efforts immediately before the prospective student-athlete-led visit that resulted in the violations in that case as well as comprehensive steps to deter potential violations during the visit. The hearing panel found these actions dissimilar from what they determined to be general reminder emails and informal conversations between compliance and the men’s basketball staff that occurred around the time of the violations at issue in CSUN’s case.

LSU’s compliance staff was made aware of a group of prospective student-athletes planning to visit campus during the COVID-19 dead period, which would be permissible if there was no interaction with athletics staff. Based on that awareness, the compliance staff educated the football staff and highlighted the inability for any in-person athletics staff engagement with those prospective student-athletes and their families.36 Despite that education, at least two members of the athletics staff engaged in activities contrary to that education on the following day, and those activities were not detected by LSU’s compliance systems. The hearing panel in that case still awarded LSU the mitigating factor even though the education did not serve as a deterrent, no institutional compliance system detected the activities and LSU did not self-report the violations.

CSUN’s compliance staff did not have advanced notice of the prospective student-athletes coming to campus, but they provided rules education about the dead period and visit restrictions to all coaches and staff (at least 19 times over the course of the dead period). Several coaches chose to ignore the education about those limitations, but the compliance conscience of the entire department resulted in several individuals coming forward to the compliance office to report the issues, and the institution was able to contact the NCAA enforcement staff within 72 hours of the violations occurring. As previously noted, the hearing panel acknowledged CSUN took reasonable steps to comply with the dead period in another portion of their decision analysis,38 but for this mitigating factor related to compliance systems, the hearing panel appears to focus on the actions of the individuals who caused the violations, instead of looking at the systems in place and the overall compliance environment created, which resulted in a de facto nonapplication of the mitigating factor. This is an arbitrary means of analyzing and distinguishing systems of compliance across institutions when the case record clearly demonstrates comparable systems without the need to take into account the institutions varying compliance resources.

Therefore, the Appeals Committee determined the failure to apply this mitigating factor to CSUN was an abuse of discretion.

Weighting of Aggravating Factor Bylaw 19.9.3-(b) - History of Level I, Level II or Major Violations by Institution and Weighting of Mitigating Factor Bylaw 19.9.4-(f) - Exemplary Cooperation.

In addition to arguing that the hearing panel abused its discretion in its application or nonapplication of one aggravating factor and one mitigating factor, CSUN also argued that the hearing panel abused its discretion in the heavy weight provided to the history of violations aggravating factor and the normal weight provided to the exemplary cooperation mitigating factor. CSUN argued that recent case precedent showed multiple institutions with a second major infractions case in a shorter amount of time than CSUN where the history of violations aggravating factor was not provided heavy weight. Youngstown State University Committee on Infractions Decision (January 11, 2022), The Ohio State University Committee on Infractions Decision (April 19, 2022) and University of Missouri, Columbia Committee on Infractions Decision (January 31, 2019). Further, CSUN noted clear distinctions between itself and three cases specifically cited by the hearing panel in applying heavy weight to demonstrate a clear error of judgment.

Specifically, CSUN noted case precedent supported heavy weight only in situations where the history of major infractions involved a prior case within two to four years or at least three cases in 10 years, involved violations systemic in nature across multiple sports, and/or the same bylaw across multiple cases. Georgia Tech Committee on Infractions Decision, Florida A&M University Committee on Infractions Decision (May 21, 2019) and San Jose State University Committee on Infractions Decision (September 6, 2018). As to the weighting of the mitigating factor, exemplary cooperation, CSUN argued that its actions mirror those in the Ohio State Committee on Infractions Decision.

The hearing panel countered that the standard for setting aside its weighting determinations is deferential and that this committee has recognized that it may not substitute its judgment for that of the panel and mere disagreement with the hearingpanel’soutcomeisnotenoughtodemonstrateanabuseofdiscretion.40 Here,thehearing panel noted that, despite the length of time between its two infractions cases being six years, it was significant to its application of additional weight that serious violations occurred in the same sport program by back-to-back men’s basketball coaching staffs. As to the weighting of exemplary cooperation, the hearing panel highlighted the already high bar in obtaining the mitigating factor and its application regularly received normal weight. Further, the hearing panel noted its determination of the distinguishable scope and scale of exemplary cooperation in Ohio State versus CSUN infractions cases.

Here, the Appeals Committee found sufficient information in the case record to support the weighting determinations by the hearing panel and is not persuaded that the hearing panel clearly deviated from consistent prior case precedent to the contrary. Therefore, for the above reasons, the Appeals Committee did not find that the hearing panel abused its discretion in its weighting of these two factors.

Impact of the Appeals Committee’s Determinations

The hearing panel failed to take into account two material factors when assessing the ultimate classification of the case for CSUN and resulting appealed penalties, both of which must weigh in the favor of CSUN. Due to the timing of this appeal, the Appeals Committee does not have legislated authority to reclassify this case based on our foregoing determinations. Additionally, while the Appeals Committee has the authority to vacate all or part of a penalty, the issue of determining the classification of the case for CSUN and reassessment of the probation and financial penalty is left to the hearing panel. Therefore, the Appeals Committee vacated the appealed probation and financial penalties (V.1 and V.2) and remanded the case for reclassification and reassessment of these penalties consistent with this decision. Further, remand should not result in a reweighing of each aggravating and mitigating factor previously applied and then an overall recalculation by the hearing panel. Rather, the original weight of the factors not appealed or vacated should remain the same as it was assessed in the decision, and the impact of the removal of aggravating factor 19.9.3-(m) and the application of mitigating factor 19.9.4-(e) should be evaluated to determine any change in classification and/or appealed prescribed penalties. Finally, any reassessment of the appealed penalties must account for the approval by Appeals Committee of the institution’s request that the probation period and $5,000 of the financial penalty not be stayed during the pendency of this appeal.

Conclusion

The hearing panel abused its discretion: (1) in the application of the aggravating factor in Bylaw 19.9.3-(m) (intentional, willful or blatant disregard for the NCAA constitution and bylaws); and (2) by failing to apply the mitigating factor in Bylaw 19.9.4-(e) (implementation of a system of compliance methods designed to ensure rules compliance.

If you have any questions, contact Christian Dennie at cdennie@denniefirm.com.