UNIVERSITY OF MISSISSIPPI

APPEAL OF INFRACTIONS REPORT NO. 487

CASE NO. 00561
 TABLE OF CONTENTS

I. INTRODUCTION AND SUMMARY ............................................................................... 1

II. BACKGROUND ................................................................................................................ 2
A. Procedural History .................................................................................................. 2
B. The Infractions Decision ......................................................................................... 5
C. The Penalties ........................................................................................................... 5
III. ISSUES RAISED ON APPEAL ......................................................................................... 7
IV. ARGUMENT ...................................................................................................................... 8
A. Standard Of Review. ............................................................................................... 8
B. The COI Abused Its Discretion By Imposing A Postseason Ban
For The 2018 Football Season. ........................................................................................... 9
1. The COI’s significant reliance on Bylaw 19.9.3-(b) as an
aggravating factor is improper and constitutes an abuse of
discretion. .............................................................................................................. 10
a. The COI’s reliance on cases from 1986 and 1994 to find a Bylaw
19.9.3-(b) aggravating factor is contrary to applicable precedent. ........... 10
b. The COI’s decision to accord “significant weight” to Bylaw 19.9.3-(b)
is contrary to the facts and constitutes a clear error in judgment.............. 13
2. A two-year postseason ban is also excessive and contrary to
precedent. .............................................................................................................. 16
C. The COI Abused Its Discretion In Imposing An Unprecedented
Three-Year Limitation On Unofficial Visits For Football Prospective
Student-Athletes. ............................................................................................................... 19
1. The COI did not adhere to the current penalty structure
when it imposed an additional three-year recruiting restriction
penalty. .................................................................................................................. 20
2. The COI failed to consider and weigh material factors
when imposing the additional three-year recruiting restriction
penalty. .................................................................................................................. 21
D. The COI’s Finding That The University Lacked Institutional
Control Should Be Vacated. ............................................................................................. 22
1. The COI ignores the requirement that an LOIC finding be
supported by evidence of a specific institutional failure that leads
to the violations. .................................................................................................... 23
2. The uncontroverted evidence establishes that the University
exercised control over its football program. ......................................................... 24

i
 a. The University’s compliance program met or exceeded the COI’s
standard. .................................................................................................... 25
b. The University did not fail to monitor Cannon Motors. .................... 28
3. The infractions decisions cited by COI as support for its
LOIC finding demonstrate that its decision is incorrect. ...................................... 30
4. The COI committed a procedural error in considering
findings from the University’s 2016 infractions case as evidence of
a loss of institutional control. ................................................................................ 33
E. The COI’s Finding That A Retail Store Provided Free Clothing
And Merchandise To Prospective Student-Athletes, Their Families, Or
Acquaintances Is Clearly Contrary To The Evidence, Some Of Which
Was Not Fully Investigated. ............................................................................................. 35
1. The COI’s decision to credit the allegations by three
different witnesses because they told “similar” stories and did not
know each other was based on incorrect facts. ..................................................... 35
2. The objective evidence affirmatively disproves all three
allegations. ............................................................................................................ 39
3. The COI’s procedural errors prevented the University from
presenting evidence contrary to the allegation at the hearing,
resulting in the COI selectively considering evidence and
considering improper evidence. ............................................................................ 40
V. CONCLUSION ................................................................................................................. 43

ii
 APPEAL OF THE UNIVERSITY OF MISSISSIPPI

I. INTRODUCTION AND SUMMARY

This is an appeal from Infractions Decision No. 487 (“Infractions Decision”). 1 Beginning

in 2010, serious violations of NCAA legislation took place in the University of Mississippi’s

football program. The University acknowledged and addressed these violations as they were

discovered, taking decisive action to distance itself from wrongdoers along the way. Then, at the

conclusion of its joint investigation with the NCAA enforcement staff, the University self-

imposed serious penalties. These penalties included: a one-year postseason ban on its football

team for the 2017 season when it was, in fact, bowl-eligible; a significant fine; scholarship

reductions for four academic years; and recruiting restrictions covering, among other things,

limits on unofficial visits for two academic years. Infractions Decision, pp. 56-57. The

University also terminated or did not renew the contracts of two assistants who had intentionally

participated in or otherwise caused violations, and it disassociated nine involved boosters.

The University now appeals two penalties imposed by the Division I Committee on

Infractions (“COI”) over and above the University’s self-imposed penalties as well as two factual

findings: (1) Violation IV.P., addressing lack of institutional control (“LOIC”); and (2) Violation

IV.G., asserting that an Oxford, Mississippi-area retail store provided impermissible recruiting

inducements. This Committee should vacate and reverse the penalties and factual findings

because the COI abused its discretion, departed from precedent, committed procedural errors,

and reached factual conclusions inconsistent with the evidence. More particularly:

 The University appeals the COI’s imposition of a second postseason ban on the football
program because the COI found an aggravating factor – Bylaw 19.9.3-(b) (a history of
Level I or Level II cases) – based upon infractions decisions from 1986 and 1994 and an

1
The public version of the Infractions Decision is attached as Exhibit A.

1
 erroneous assessment of the University’s compliance history over several decades. The
resulting penalty is also contrary to precedent.

 The University appeals the COI’s unprecedented and unauthorized penalty of a three-year
recruiting restriction on “unofficial” visits, requiring the University to limit all
prospective student-athletes in the sport of football to one unofficial campus visit per
academic year. No such penalty has ever been imposed by the COI, and for good reason:
this restriction is six times the period called for under the NCAA penalty matrix.

 The University appeals the COI’s finding of LOIC. There is no evidence of the type of
institution-wide failure required by precedent, and, in fact, the record shows that the
University’s leadership satisfied their responsibilities under the COI’s institutional
control guidance. The COI also committed procedural error in considering certain
findings from the University’s 2016 infractions case.

 And the University appeals the COI’s finding that a privately-owned retail store provided
free merchandise to three recruits or their family members. This finding is clearly
contrary to the overwhelming documentary evidence presented and suffers from
significant procedural irregularities that wholly undercut the inconsistent factual
predicate offered in support of the allegation. It was also fundamentally unfair for the
enforcement staff to deny the University access to information that would have assisted
in its defense.

II. BACKGROUND

A. Procedural History

In October 2012, the University began investigating its women’s basketball program after

it received information from the Southeastern Conference (“SEC”) about possible violations.

During its investigation, the University uncovered information regarding possible violations in

its track and field and football programs. The University promptly notified the NCAA

enforcement staff. After a more-than three-year joint investigation, the enforcement staff issued

a Notice of Allegations on January 22, 2016 (“2016 Notice”).

On June 2, 2016, after the University submitted its response to the 2016 Notice but before

a hearing was held, the COI severed the allegations relating to the football program. 2 The COI

2
The COI conducted a hearing on the allegations involving women’s basketball and track and
field on July 25, 2016, and issued Infractions Decision No. 460 on October 7, 2016.

2
took this action over the University’s objections, to allow for additional investigation into new

information about former University student-athlete [Student-Athlete 1] that came to light at the

April 2016 NFL Draft. As it had done for three years, the University cooperated fully with the

enforcement staff. The investigation into the [Student-Athlete 1]-related issues did not lead to

any additional allegations on that topic.

As the [Student-Athlete 1] inquiry was nearing completion, the investigation

unexpectedly and prejudicially changed direction. Without notifying the University or its

counsel, the enforcement staff re-directed the investigation toward [Student-Athlete 39], a

football player at rival [Institution 10], and three other student-athletes whom the University had

recruited. Weeks later, the enforcement staff finally provided information about the three other

student-athletes they had interviewed, two of whom were not involved in any violations and one

of whom was involved in a Level III violation.

Not until October 2016, however, did the enforcement staff identify [Student-Athlete 39]

to the University. By then, the enforcement staff already had interviewed both [Student-Athlete

39] and his parents without notice to the University. The University was allowed to attend a

second interview with [Student-Athlete 39] where [Student-Athlete 39] refused to answer certain

questions from the University’s counsel. The enforcement staff would not compel [Student-

Athlete 39] to participate in a University-driven interview despite having secured immunity for

him. The enforcement staff interviewed [Student-Athlete 39] a third time, but the University was

not allowed to participate in that interview or conduct further interviews of him. The staff also

denied the University access to information about a relevant and simultaneous investigation into

[Institution 10’s] recruitment of [Student-Athlete 39].

3
 Over the University’s repeated objections to the enforcement staff and the COI about the

unfairness and prejudicial impact of the NCAA’s investigative decisions, this supplemental

investigation eventually culminated with the issuance of a second Notice of Allegations (“2017

Notice”), which only contained allegations of violations in the University’s football program. 3

The University, in its Response to Notice of Allegations (“Response”), agreed with the

enforcement staff’s position on a number of allegations that were supported by credible,

persuasive, objective evidence. In the instances where the evidence did not demonstrate a

violation, however, the University contested the allegation, including the two factual findings at

issue here.

After the University’s Response was submitted and made available to the public in

redacted form, the attorney for [Student-Athlete 40], a student-athlete enrolled at [Institution 10],

submitted a video to the enforcement staff in which [Student-Athlete 40’s] mother displayed

certain merchandise she claimed she and [Student-Athlete 40] had received from the retail store

at issue in Violation IV.G. The University sought on several occasions to interview [Student-

Athlete 40] and his mother to clarify and test certain factual claims she had made in the video.

The University’s requests to the staff and the COI for assistance in securing an interview were

denied. In addition, while the University asked for a final interview of [Student-Athlete 39], the

COI instead required [Student-Athlete 39] to attend and participate in the University’s infractions

hearing. The video and certain untested statements [Student-Athlete 39] made at the hearing

later formed the basis of several of the COI’s findings in the Infractions Decision.

3
Of the allegations in the 2017 Notice, six were directly traceable, in whole or in significant part,
to the information [Student-Athlete 39] provided. That number includes Allegation No. 9, which forms
the basis of Violation IV.G. at issue in this appeal.

4
 The University presented these facts to the COI during a two-day hearing on September

11 and 12, 2017. On October 3, 2017, the University requested that the COI accept a post-

hearing supplement to its initial Response regarding new information revealed at the hearing.

The COI accepted the University’s supplement two days later. The COI issued the Infractions

Decision on December 1, 2017.

B. The Infractions Decision

The Infractions Decision contains Level I and Level II violations 4 falling into the

following groups:

 Academic fraud, recruiting inducements, and unethical conduct springing from 2010
conduct surreptitiously committed by a then-newly-hired operations coordinator and a
then-assistant football coach, all of which occurred under a prior head football coach,
director of compliance, athletics director and chancellor (Violations IV.A., B., C., & D.);

 Recruiting inducements and extra benefits (Violations IV.B., E., F., G., H., I., J., K., M.
& N.);

 Head coach control (Violation IV.O.); and

 Lack of institutional control (Violation IV.P).

C. The Penalties

Before the Infractions Decision was issued, the University self-imposed significant

penalties consistent with a Level I – Standard case. These self-imposed penalties included:

 Probation: a proposed, three-year probationary period to begin on the date the

Infractions Decision was released;

 Competition Penalty: a postseason ban for the football program in the 2017 season,
which included an immediate forfeiture of approximately $8 million in 2017-18 fiscal
year revenue from the SEC, to be reduced to $4 million after five years if the University
does not have another significant infractions case;

4
The COI also found that Level III violations occurred.

5
  Financial Penalty: a $179,797 fine, an amount equal to $5,000 plus one percent of the
average total budget for the football program over the prior three academic years; 5

 Scholarship Reductions: a reduction of 13 grants-in-aid overall and 10 initial grants-in-

aid for the academic years 2015-16 through and including 2018-19;

 Recruiting Restrictions: multiple forms of recruiting restrictions, including

o A reduction in official football visits by nearly 20% for the 2014-15 academic
year based upon the previous four-year average;

o 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) and by
12.5% during the spring 2016 evaluation period;

o A prohibition on unofficial visits for seven consecutive weeks during fall 2017
and for five consecutive weeks during spring 2016; and

o A prohibition on off-campus recruiting for two assistant football coaches for 21

days in 2015 and 30 days in 2016, respectively; and

 Corrective Actions: The University also took a number of corrective actions, 6 including
the disassociation of nine boosters.

The COI agreed with the University and classified this case as Level I – Standard. The

COI accepted the University’s self-imposed penalties and corrective actions. In addition to the

University’s self-imposed penalties, the COI imposed:

 A postseason ban for the football program for the 2018 season, which will require
another $8 million forfeiture in the 2018-19 fiscal year (Penalty VII.3.);

 An additional recruiting restriction penalty that requires the University to limit all
football recruits to one unofficial campus visit per academic year for the full three-year
probationary period (Penalty VII.5.);

5
In addition to the errors discussed below, the COI erred in calculating the amount of the fine to
be assessed. The University’s average football budget for the three academic years preceding the 2017
Notice was $17,497,677. One percent of that figure is $174,797. The University proposed a total fine of
$179,797, which represents the former figure plus $5,000. The COI fined the University $184,797 by
adding another $5,000 in assessing the penalty without explanation.
6
The University’s corrective actions are set out in Appendix One to the Infractions Decision.

6
  Public reprimand and censure, vacation of all regular and postseason wins in which
ineligible student-athletes competed, and disassociation of an additional booster for a
period of not less than three years (Penalty VII.11.-13.);

 A suspension of the former head coach for the first two games of the 2018 season if he is
employed as a head football coach at an NCAA institution during that season (Penalty
VII.6.);

 Four show cause orders against former coaches or staff involved in the violations
(Penalties VII.7.-10.).

III. ISSUES RAISED ON APPEAL

1. Did the COI abuse its discretion by imposing a second postseason ban when that

penalty is substantially based upon the erroneous application of an aggravating factor (i.e., a

“culture of non-compliance” that had “continued for decades”) that is not supported by the

evidence or precedent?

2. Did the COI abuse its discretion by imposing an unprecedented limitation of one

unofficial visit per year over a three-year term for each prospective student-athlete recruited by

the University, a sanction that exceeds by nearly six-fold the penalty guidelines set forth in

Figure 19-1?

3. Was the COI’s LOIC finding clearly contrary to the evidence when it was not

connected to any specific institutional failing that caused the violations at issue, there is no

support in the record for the COI’s stated belief that the University had a “culture of non-

compliance,” and the evidence supports the University’s position that it had appropriately

promoted compliance and responded to violations when it learned of them?

4. Was the COI’s finding that a local store owner provided free merchandise to

prospective student-athletes and their family members clearly contrary to the evidence where it

was based upon the COI’s misinterpretation of the evidence, some of which came from clearly

biased witnesses and was considered by the COI despite multiple procedural errors?

7
IV. ARGUMENT

A. Standard Of Review.

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. Bylaw 19.10.1.1. An abuse of discretion in the imposition of a penalty occurs where

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 (June 30, 2009), p. 23. Moreover, the COI abuses its discretion when

it imposes a postseason ban penalty that “is inconsistent and excessive relative to the overall

circumstances presented.” University of Central Florida (April 22, 2013), p. 13.

A hearing panel’s factual findings and its conclusion that one or more violations occurred

shall be set aside on a showing by the appealing party that:

a. The hearing panel’s finding clearly is contrary to the evidence presented to

the panel;

b. The facts found by the hearing panel do not constitute a violation of the
NCAA constitution and bylaws; or

c. There was a procedural error and but for the error, the hearing panel would
not have made the finding or conclusion.

Bylaw 19.10.1.2.

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 B. The COI Abused Its Discretion By Imposing A Postseason Ban For The 2018
Football Season.

The University acknowledges that the COI enjoys a degree of discretion in the imposition

of penalties against member institutions. That discretion, however, is not unfettered. And when,

as here, the COI exceeds the limits of its discretion, this Committee should vacate the resulting

penalty.

The COI did not explain why an additional postseason ban was appropriate for this case

when all but one of the University’s other self-imposed penalties were deemed to be

appropriate.7 The COI’s failure to provide an explicit reason for its penalty determination is an

important factor this Committee considers in deciding whether to set aside a penalty. Syracuse

University (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 (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.”). Where the COI fails to provide such an explanation, this Committee construes any

ambiguities in the infractions decision in favor of the institution. University of Central Florida

(April 22, 2013), p. 13. Construing those ambiguities in the University’s favor, it is clear that the

COI abused its discretion by imposing a second postseason ban penalty.

First, the COI abused its discretion because the two-year postseason ban is inconsistent

with and excessive in light of the COI’s precedent. Further, the COI impermissibly relied on an

aggravating factor – an alleged history of violations said to extend over “decades” – which the

7
Except for adding an unauthorized recruiting restriction, which is discussed below, the COI did
not enhance any of the University’s other self-imposed core penalties. The probationary period (three
years) and the financial penalty ($5,000 plus 1% of the average football budget for three years) are at the
lowest end of the range for a Level I – Standard case under Figure 19-1.

9
University was never specifically asked to address, which the record does not support, and which

readily available facts show to be false. Additionally, to the extent the COI imposed a second

postseason ban because it believed the University’s self-imposed ban was mere “strategy” and

should not be credited, that belief is not only inconsistent with the Bylaws, but it is also

inappropriate where the self-imposed one-year postseason ban carried with it $4 million to $8

million in consequences. Accordingly, the postseason ban penalty for the 2018 football season

should be vacated.

1. The COI’s significant reliance on Bylaw 19.9.3-(b) as an aggravating

factor is improper and constitutes an abuse of discretion.

The COI erred in imposing a second postseason ban by basing its decision on – that is,

“accord[ing] significant weight” to – an irrelevant or improper factor. That factor, a supposed

history of Level I or Level II violations as described in Bylaw 19.9.3-(b), was derived from the

COI’s mistaken belief that the University had a history of non-compliance over “three decades,”

a fact the COI assumed based on nothing more than the fact that the University had “similar”

infractions cases in 1986 and 1994. The COI’s application of that aggravating factor, however,

represents an abuse of discretion.

a. The COI’s reliance on cases from 1986 and 1994 to find a Bylaw
19.9.3-(b) aggravating factor is contrary to applicable precedent.

This emphasis on the University’s 1986 and 1994 infractions cases was clearly

inconsistent with NCAA precedent. While the Bylaws do not specifically limit the evidence that

can be relied upon in determining aggravating factors, it is instructive that under former Bylaw

19.5.2.1.1, an institution’s prior infractions history (i.e., “repeat violator” status) could be

considered only if a major violation occurred within five years of the starting date of a major

penalty. And under current Bylaw 19.5.11, allegations are to be limited to violations “occurring

no earlier than four years” before the notice of inquiry. As such, there is a strong presumption

10
within the Bylaws (both former and current) in favor of considering only recent precedent – that

is, infractions cases within at least five years – as evidence of a history of violations.

In practice, the COI has similarly limited its review of prior infractions cases to a five-

year period. In every case decided under the new penalty structure where the COI has

considered application of the Bylaw 19.9.3-(b) aggravating factor based upon prior infractions

cases, the COI has declined to apply that aggravator where the prior cases were more than five

years old:

 Houston Baptist University (January 19, 2018) (panel accorded “little weight” to 19.9.3-
(b) where institution’s prior infractions case occurred in 1990);

 Rutgers University (September 22, 2017) (19.9.3-(b) did not apply where prior infractions
case was from 2003);

 University of the Pacific (September 20, 2017) (declining to apply 19.9.3-(b) as

aggravating factor where institution’s prior infractions case was 25 years old);

 University of South Florida (September 19, 2017) (declining to apply 19.9.3-(b) as

aggravating factor where institution had prior infractions cases in 1982 and 1986);

 University of Virginia (April 7, 2017) (19.9.3-(b) did not apply based upon 1993
infractions case);

 University of Hawaii (March 3, 2017) (“because almost 40 years have elapsed since the
institution’s last major infractions case, the panel did not determine [19.9.3-(b)] was an
aggravating factor”);

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  California State University, Northridge (December 7, 2016) (“because some 12 years
have elapsed since the institution’s last major infractions case, the panel determines
[19.9.3-(b)] is accorded little weight in this case”);

 University of Notre Dame (November 22, 2016) (“because some 17 years have elapsed
since the institution’s last major infractions case, the panel determines it was not an
aggravator in this case”);

 Lamar University (September 22, 2016) (19.9.3-(b) did not apply based upon 1992
infractions case);

 University of California-Los Angeles (September 16, 2016) (“because some 18 years

have elapsed since the institution’s last major infractions case, the panel did not
determine [19.9.3-(b)] was an aggravator in this case”);

 Arkansas State University (April 13, 2016) (limiting application of 19.9.3-(b) to prior
infractions case occurring within five years of date of decision);

 Samford University (April 12, 2016) (limiting application of 19.9.3-(b) to prior

infractions case from 2011 and excluding 1972 infractions case from consideration);

 California State University, Sacramento (November 4, 2015) (19.9.3-(b) did not apply
based upon institution’s 1972 infractions case);

 Oklahoma State University (April 24, 2015) (“because over 20 years have elapsed since
the institution’s last major infractions case, the panel did not determine [19.9.3-(b)] was
an aggravator in this case”);

 University of Georgia (December 16, 2014) (“While the panel identifies the institution’s
infractions history, it places less emphasis on this as an aggravating factor because the
date of the most recent infractions case was 10 years ago.”).

At what point does an institution get a clean slate in the infractions process? For this COI

panel, the answer appears to be “never.” But that answer lies in stark contrast with this long list

of cases, which reflect a well-established rule that the COI will not consider decades-old

infractions cases in applying Bylaw 19.9.3-(b) as an aggravating factor. By according

“significant weight” to the University’s infractions cases from 23 and 31 years ago, the COI

departed from that precedent, thereby basing its decision in significant part on one or more

irrelevant or improper factors. This clear error of judgment renders the imposition of a second

12
postseason ban penalty arbitrary, capricious, or irrational. Accordingly, the postseason ban for

the 2018 football season should be vacated.

b. The COI’s decision to accord “significant weight” to Bylaw

19.9.3-(b) is contrary to the facts and constitutes a clear error in
judgment.

The enforcement staff never identified the aggravating factor found in Bylaw 19.9.3-(b)

as appropriate for consideration in the 2017 Notice.8 Yet, the COI not only found that this

aggravating factor would apply because the University had infractions cases from 1986 and

1994, but stressed that these decades-old cases were “accorded significant weight.” 9 Infractions

Decision, p. 54. In other words, a significant factor in the COI’s decision was its erroneous

finding that the University “fostered an unconstrained booster culture” over “three decades” that

reflected a “recurring culture of noncompliance” and is “symptomatic of an out-of-control

culture that has existed for decades.”10 Id., pp. 1-2. The University therefore requests that this

8
Pursuant to Bylaw 19.7.1, the enforcement staff shall identify in its notice of allegations each of
the aggravating factors it believes apply to the institution and each involved party. It is logical to assume
from this omission that the enforcement staff did not believe that aggravator applied to the University’s
football case, especially in light of the fact that the enforcement staff did identify Bylaw 19.9.3-(b) as an
aggravating factor only one year earlier in the 2016 Notice. There, as here, the University’s position was
that, consistent with precedent, its prior infractions cases were too old to be afforded much weight, if at
all, in the COI’s analysis. The COI took no position on the Bylaw 19.9.3-(b) aggravating factor on
October 7, 2016, when it issued Infractions Decision No. 460.
9
The COI also 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. Based upon the fact that the enforcement staff never identified Bylaw 19.9.3-(b) as a
possible aggravating factor, the University was shocked to learn that the COI not only had assessed this
aggravator against the University but also “accorded [it] significant weight.” The 1986 and 1994
infractions cases, which form the basis for the COI’s application of Bylaw 19.9.3-(b), were barely
discussed at the hearing. The COI’s questions about those cases were, at most, perfunctory. Moreover,
during that portion of the hearing where aggravating and mitigating factors were discussed, the COI asked
for the University’s position only on those aggravating and mitigating factors the enforcement staff
identified “or any other factors you wish the panel to consider.” Hearing Tr. (Sept. 11, 2017), pp. 301-02.
The University had no reason to discuss a potential aggravating factor that had never been identified as
possibly applicable and that had never before been applied in a similar manner to any other institution.
10
The COI cites two statements – one it (wrongly) attributed to the University’s chancellor and
another from the former head football coach – as evidence that a booster culture had persisted for

13
Committee vacate the Bylaw 19.9.3-(b) aggravating factor as part of its decision overturning the

second postseason ban at the heart of this appeal.

The Infractions Decision repeated this unfounded theme regarding the University’s

supposed culture from beginning to end, culminating in the following statement:

The culture that fostered the booster violations existed at

Mississippi literally for decades and continued well into the
investigation in this case. The institution had prior infractions
cases in 1986 and 1994 with facts strikingly similar to the present
matter. Both prior cases featured booster involvement with
recruiting, with boosters providing prospects with impermissible
inducements such as clothing, transportation, lodging, and offers of
financial assistance, and an automobile. The boosters were
encouraged by some members of the football staff. In the 1994
case, the COI noted that the 1986 case did not cause the
institution to increase its vigilance. Instead, the institution
“continued, at least within the football program, an attitude of
business as usual.” That attitude remained and permeated the
football program’s boosters in this case. That attitude must
change, at this and all other member institutions where such
environments exist.

Id., p. 50 (emphasis added). The Infractions Decision is replete with references to this theme,

including a later statement that “[t]he institution’s two most recent cases occurred in 1986 and

1994, but they were similar to the present case and are accorded significant weight.” Id., p. 53

(emphasis added). Similarly, in criticizing the former head football coach, the COI again

referred to booster conduct as a “decades-long disdain for NCAA recruiting rules.” Id., p. 56;

see also id., p. 48 (“The institution had two previous infraction cases involving control of

boosters before the head coach’s tenure”); p. 49 (“failure to control and change the culture

“decades.” The COI’s characterization of those statements is highly misleading. As the hearing
transcript demonstrates, the University was describing conduct that occurred during the University’s
investigation – not events taking place between 1995 and 2010. Hearing Tr. (September 12, 2017), pp.
92-93. And the former head football coach, who was hired in December 2011, certainly had no
knowledge of how the University or its boosters treated compliance in the 1990s and was not purporting
to describe that time period. See id., pp. 231-32. He did, however, refer to his prior experience as an
assistant football coach at the University – a time when he was not aware of any booster issues. See id.

14
through the years”). Thus, it is clear that the COI leaned heavily, if not exclusively, on this

erroneous idea that the University had failed its compliance functions for decades to support the

application of heightened penalties against it.

With no notice of the COI’s intent, the University had no opportunity to respond to the

surprise allegation of a continuing culture of non-compliance. But the record, together with

matters well-known to the NCAA, show that the allegation is demonstrably false. For example,

had the University been given an opportunity to respond to the COI during the hearing, it would

have provided information about the following: 11

 The reference in the 1994 infractions case to a “business as usual” approach to

compliance, which the COI cited in the Infractions Decision as support for its application
of the Bylaw 19.9.3-(b) aggravator, was premised on the idea that the University’s
institutional and athletics leaders, all of whom were involved in the 1986 infraction case,
had not learned the appropriate lesson(s) from their previous experience with the
enforcement process. Yet, the 1994 infractions decision notes that the University fired
the coach responsible for the 1986 and 1994 violations and that the presiding athletic
director had resigned. See, e.g., Hearing Tr. (Sept. 12, 2017), p. 301.

 Consistent with the requirements of the 1994 infractions decision, the University then
undertook an effort to educate alumni about their compliance responsibilities, submitting
annual compliance reports to the NCAA throughout a four-year probationary period. The
NCAA never identified these reports as deficient in any way.

 In 1995, Dr. Robert Khayat took over as chancellor of the University. Dr. Khayat was a
former law professor and former head of the NCAA Foundation. He remained chancellor
until 2009. During his tenure, Dr. Khayat also served as president of the SEC. From
1995 to 2009, Chancellor Khayat hired and oversaw four head football coaches, none of
whom were charged with NCAA violations during their tenure.

 From November 17, 1994, to October 7, 2016, the University had no NCAA infractions
cases. Yet, according to LSDBi, there were nearly 100 major, Level I, or Level II
infractions cases in that same timeframe that involved the 65 member institutions in the

11
The University does not believe that this Committee requires additional evidence to decide: (1)
whether the COI’s application of the Bylaw 19.9.3-(b)’s aggravating factor was appropriate in light of the
great weight of precedent demonstrating it was not; or (2) whether the COI’s characterization of the
University’s history is consistent with the objective facts, which it is not. The University offers this
information only to explain what it would have told the COI had the issue been raised and fully examined
prior to or during the hearing.

15
 NCAA’s “Power Five” conferences, and more than 30 of those institutions were the
subject of more than one infractions decision. In the sport of football alone, 12 of those
institutions, at least nine of which were outside the SEC, were cited by the COI in two or
more infractions decisions.

The COI cannot direct this Committee to a single piece of information in the record that

substantiates its conclusory assertion that this case is symptomatic of an out-of-control booster

culture that “has existed for decades.” Infractions Decision, p. 2. Under the COI’s flawed logic,

any of the more than 129 FBS member institutions that commit a present-day violation “similar”

to a past violation – no matter how long ago – may be deemed to have allowed an “out-of-control

culture” to have existed for the entire period between the two violations. Nothing in the

NCAA’s Bylaws or precedent supports such a fundamentally unfair and unsound procedure. As

a result, the COI’s enhanced penalty is an abuse of discretion and should be vacated.

2. A two-year postseason ban is also excessive and contrary to precedent.

A postseason ban is an extraordinarily severe penalty. And, more importantly, not all

postseason bans are created equal. As was explained to the COI at the University’s hearing, the

imposition of a one-year postseason ban on an institution’s football program in the SEC results

in a financial penalty of at least $4 million. Hearing Tr. (Sept. 12, 2017), pp. 334-35. A second

postseason ban year doubles this amount, resulting in a total minimum financial penalty to the

University of $8 million.

In fact, the actual penalty each year is $8 million, with half of that amount to be returned

if, after five years, the University has no more serious NCAA rules violations. Id. In other

words, in terms of cash flow, the $8 million penalty associated with each postseason ban

effectively deprives the University of almost half of the football program’s $17 million annual

budget for two successive years, a total cash flow shortage of $16 million. The penalty thus

punishes many current student-athletes who have not committed rules violations and bear no

16
responsibility for the violations that occurred. A postseason ban – especially in the SEC – is

therefore a very real and very significant penalty.

Because the COI never explained the rationale behind its decision to impose a second

postseason ban, the University can only believe that it may have imposed this additional penalty

because it believed that the University’s self-imposed ban was not a real sanction. The

University’s belief is supported by the COI’s Infractions Decision No. 460, when, discussing the

University’s women’s basketball program, the same COI discounted the importance of a self-

imposed ban, stating:

The panel … is concerned by the apparent trend of institutions

self-imposing postseason bans. Too many institutions appear to be
timing their self-imposed bans as a matter of convenience and
strategy. While the committee acknowledges actions taken by
institutions, the committee retains the authority to prescribe further
penalties, particularly under the new penalty structure.

Infractions Decision No. 460, p. 34.

To the extent that the COI was trying to send a message in its Infractions Decision

that self-imposed bans do not count, this Committee should intercept and countermand

that message. The University announced the postseason ban for the 2017 football season

on February 23, 2017, the same day it received the 2017 Notice and long before that

season began. More to the point, this self-imposed ban did in fact prevent the

University’s football team from participating in a postseason bowl. And by any stretch of

the imagination, the $8 million penalty the University self-imposed was both very real

and very deep.

The COI’s precedent illustrates the significant and severe sanction represented by a

postseason ban. Under the new penalty structure, the COI has imposed Level I penalties against

17
an institution in a total of 13 cases. 12 Yet, this is the first and only case in which the COI has

imposed a two-year postseason ban against an institution that did not self-impose such a ban. 13

In all other Level I cases decided under the new penalty structure, the COI has imposed no

postseason ban at all, or at most, a one-year postseason ban. The COI has provided no

explanation for its deviation from well-established precedent.

The imposition of a second-year postseason ban is also inexplicably contrary to the

substantial body of precedent in which the COI has assessed penalties for Level I violations

using the former penalty structure. In those cases – decided after the new penalty structure was

implemented but applying the old penalty structure – the COI either did not impose any

postseason ban or imposed a maximum of a one-year ban. 14 The COI did not impose a two-year

ban in any such case.

Finally, even under the old penalty structure, a two-year postseason ban is exceedingly

rare. In fact, from 2002 up until the revision of the penalty structure, the COI imposed a two-

12
Excluding this case, the other twelve cases are: Morgan State University (December 19, 2017),
University of the Pacific (September 20, 2017), Southeast Missouri State (March 10, 2017), California
State University, Northridge (December 7, 2016), University of Mississippi (October 7, 2016), Lamar
University (September 22, 2016), University of Missouri, Columbia (August 2, 2016), Georgia Southern
University (July 7, 2016), University of Southern Mississippi (April 8, 2016), University of Louisiana,
Lafayette (January 12, 2016), Southern Methodist University (September 29, 2015), and Weber State
University (November 29, 2014).
13
In University of Southern Mississippi (April 8, 2016), which is the only case under the revised
penalty structure involving a two-year postseason ban, the institution self-imposed the penalty.
Moreover, the underlying conduct in that case, which involved extensive, orchestrated academic fraud,
resulted in the imposition of a 10-year show cause order against the former head men’s basketball coach
who was found to have obstructed the investigation and failed to promote an atmosphere of compliance.
No such findings exist in this case.
14
See, e.g., University of Northern Colorado (December 15, 2017), University of Louisville (June
15, 2017), Southern University, Baton Rouge (November 16, 2016), and Syracuse University (March 6,
2015).

18
year postseason ban in only three cases. 15 And in every one of those cases, the institution, unlike

the University, was a “repeat violator” with a prior infractions case occurring within a five-year

window of the violation giving rise to the ban. The COI certainly never before relied upon 23-

year-old and 31-year-old infractions cases in imposing such a draconian penalty.

There is nothing about this case that warrants such a substantial departure from precedent

as to justify the COI’s unexplained decision to add on a second postseason ban year. The

comparison to precedent confirms the conclusion that the COI imposed the two-year ban based

on its mistaken belief that the University had a decades-long culture of noncompliance. The

COI’s failure to adhere to precedent and its reliance on this improper factor constitute an abuse

of discretion.

C. The COI Abused Its Discretion In Imposing An Unprecedented Three-Year

Limitation On Unofficial Visits For Football Prospective Student-Athletes.

As an additional core penalty under Bylaw 19.9.5, the COI imposed a limit of one

“unofficial campus visit per academic year” for football recruits between December 1, 2017, and

November 30, 2020. See Penalty VII.5.c. The University assumes an “unofficial visit” is that

contemplated by the penalty matrix (i.e., a visit scheduled through the athletic department or for

which a complimentary ticket to an athletic event is provided). This interpretation is consistent

with Bylaw 13.7.1, which states that “[a] prospective student-athlete may visit a member

institution’s campus at his or her own expense an unlimited number of times.” Even with that

interpretation, which is more generous than the Bylaw definition of an “unofficial visit” simply

as “unpaid,” this penalty is an unprecedented and excessive sanction that is six times longer than

15
See Texas Southern University (Oct. 9, 2012), University of Southern California (June 10,
2010) and University of Alabama (Feb. 1, 2002). See also University of Miami (Oct. 22, 2013) (self-
imposed).

19
the most severe recruiting restriction prescribed by the NCAA Bylaws. Imposition of such an

extreme penalty is a clear abuse of discretion in this Level I – Standard case.

1. The COI did not adhere to the current penalty structure when it
imposed an additional three-year recruiting restriction penalty.

The COI accepted all of the University’s self-imposed recruiting restrictions as

appropriate under Figure 19-1 for a Level I – Standard case, which included a seven-week

prohibition on unofficial visits in the fall of 2017 and a five-week prohibition for the spring of

2016.16 Without explanation, however, the COI added to those restrictions in Penalty VII.5.c.,

imposing as an additional core penalty under Bylaw 19.9.5 the following:

Additionally, for the full term of probation, [December 1, 2017, to

November 30, 2020,] Mississippi shall limit all prospective
student-athletes in the sport of football to one unofficial campus
visit per academic year.

The COI exceeded its authority by failing to explain or justify this extreme departure from the

core penalties authorized under the Bylaws, 17 particularly in light of the significant penalties that

the University self-imposed and the COI accepted. In doing so, the COI abused the exercise of

its discretion.

16
The University’s self-imposed recruiting restrictions also 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; and (3) Assistant Coach 2 was prohibited from off-campus recruiting for 21 days
and Assistant Coach 4 was prohibited from off-campus recruiting for 30 days.
17
Although Bylaw 19.9.6 allows the COI to depart from Figure 19-1’s core penalties where “the
panel explains, in its decision, the basis for its prescription of core penalties different than those set forth
in Figure 19-1[,]” the Infractions Decision contains no such explanation. Compare Syracuse University
(November 25, 2015), p. 7 (establishing that this Committee looks to the COI’s decision for an
explanation of the rationale for prescribed penalties, especially when those penalties depart from
applicable guidelines). The COI’s failure (or inability) to articulate any justification for such a severe
departure from the core penalties for a Level I – Standard case requires that Penalty VII.5.c. be vacated.
Further, while the COI did not purport to impose the three-year limitation on unofficial campus visits as
an “additional penalty” under Bylaw 19.9.7, the penalty would also be excessive under any reasonable
examination of that Bylaw.

20
 More specifically, as a core penalty in a Level I – Standard case, the Figure 19-1

guidelines for recruiting restrictions provide for a seven to 13-week ban on scheduled unofficial

visits (or complimentary tickets) for prospective student-athletes. Nothing in Figure 19-1 or

Bylaw 19.9.5 permits the imposition of a 156-week (i.e., three-year) restriction on unofficial

campus visits as an appropriate core penalty for any violation level, much less a Level I –

Standard case. Indeed, the imposed sanction is more than six times longer than that suggested

for the most egregious Level 1 – Aggravated case. See Figure 19-1 (allowing for a maximum

26-week ban on scheduled unofficial visits or complimentary tickets for prospective student-

athletes). As illustrated below, the COI’s penalty is nothing if not an extreme departure from the

core penalties authorized by Figure 19-1 for a case at any level. As a result, this Committee

should vacate the COI’s additional recruiting restriction.

2. The COI failed to consider and weigh material factors when imposing
the additional three-year recruiting restriction penalty.

The COI also abused its discretion in imposing Penalty VII.5.c. by failing to consider and

weigh material factors. Specifically, the COI failed to take into account the significant recruiting

restriction penalties that the University proactively and responsibly self-imposed. In addition to

the self-imposed (and COI-accepted) penalties reducing official visits for prospective student-

athletes in football and evaluation opportunities for the football staff and prohibiting off-campus

recruiting for two assistant coaches, the University prohibited all unofficial visits for prospective

21
football student-athletes for a total of 12 weeks – five consecutive weeks in spring 2016 and

seven consecutive weeks in fall 2017.

The COI’s additional recruiting restriction penalty requires the University to further limit

all prospective student-athletes in the sport of football to one unofficial campus visit per

academic year through November 30, 2020. When taken together with the University’s self-

imposed penalties, the COI’s additional recruiting restriction results in limitations on unofficial

visits for prospective football student-athletes from 2016 through 2020. A restriction of this

length is excessive under any objective measure. Accordingly, it should be vacated.

D. The COI’s Finding That The University Lacked Institutional Control Should
Be Vacated.

The COI’s finding that the University lacked control over its football program from 2010

through 2015 is clearly contrary to the evidence and the COI’s own precedent. The COI’s prior

LOIC cases are united in the proposition that an LOIC finding cannot be based on the fact of

violations alone. Instead, in every case in which the COI has made an LOIC finding, it has also

identified a very specific institutional failing that supports the charge. But the COI did not do

that here. To the contrary, the COI appears to have based its LOIC finding on two impermissible

factors: first, the number of violations; and, second, their unfounded belief that a particular

culture of noncompliance “existed for decades” at the University. In fact, the most extensive

explanation of the COI’s thinking on that subject, quoted above, is found in its discussion of

institutional control. But the COI cannot substitute an amorphous “culture” finding for real

evidence of specific institutional failures.

The COI’s finding is clearly contrary to the evidence for another reason: the

uncontroverted facts establish that University leadership met each criterion for institutional

control identified in the COI’s “Principles of Institutional Control.” In particular, the COI erred

22
when it discounted the University’s efforts to promote compliance in its football programs and

both educate and monitor its boosters. Similarly, the COI erred in finding that the University

failed to monitor one particular booster, Cannon Motor Company (“Cannon Motors”), which

provided loaner vehicles to student-athletes whose cars were undergoing repairs.

1. The COI ignores the requirement that an LOIC finding be supported

by evidence of a specific institutional failure that leads to the
violations.

In the past, the COI has not used the existence of a large number of even the most

egregious violations – standing alone – as the basis for an LOIC finding. See, e.g., University of

Southern Mississippi (April 8, 2016) (violations of academic fraud, impermissible inducements

and benefits, head coach responsibility, unethical conduct, and failure to cooperate did not

support LOIC); University of California State, Northridge (December 7, 2016) (violations of

academic misconduct, failure to monitor, unethical conduct, and impermissible extra benefits did

not support LOIC); University of Missouri (August 2, 2016) (impermissible inducements and

extra benefits and failure to monitor did not support LOIC); University of Louisiana-Lafayette

(January 12, 2016) (academic misconduct, recruiting inducements, unethical conduct, and failure

to cooperate did not support LOIC). To the contrary, in every scenario in which the COI has

made an LOIC finding, it has done so only after connecting the existence of violations to some

specific, identifiable institutional cause. See, e.g., “Enforcement Process: Charging,” available

at: http://www.ncaa.org/enforcement/enforcement-process-charging (“A lack of institutional

control is found when the Committee on Infractions determines that major violations occurred

and the institution failed to display….” (emphasis added)).

The COI has identified two fact patterns that provide the required causal connection

between an underlying violation and LOIC: (1) cases involving institution-wide compliance

23
failures;18 or (2) violations that went unchecked or were ignored despite clear “red flags.” These

two categories mirror the factors the enforcement staff examines in determining whether to

allege LOIC: (1) the existence of compliance measures; (2) education on those compliance

measures; (3) sufficiency of monitoring to ensure the compliance measures are followed; and (4)

the timeliness of action upon learning of a violation. See id.; see also Principles of Institutional

Control, p. 2.

This case does not fall into either category. The COI cannot factually connect the

underlying violations found against the University to any inadequate compliance measure,

inappropriate education on any compliance measure, or a clear department-wide breakdown. In

other words, when divorced from the COI’s erroneous premise that the University has somehow

fostered a culture of noncompliance for “decades,” the evidence does not support an LOIC

finding or otherwise prove the existence of an “expansive, systematic breakdown” in

compliance. In the absence of such evidence, the COI has improperly applied what amounts to a

strict liability standard to the University’s case, turning NCAA precedent on its head.

2. The uncontroverted evidence establishes that the University exercised

control over its football program.

The COI’s LOIC finding is clearly contrary to the uncontroverted evidence the University

presented to the COI. By any measure, the University fulfilled its obligations to promote

compliance within and otherwise control its football program.

18
These failures typically result in dozens of ineligible student-athletes spanning multiple sports
over multiple years. See, e.g., Southern University, Baton Rouge (November 16, 2016) (violations, which
resulted in the improper certification of more than 200 student-athletes during a six-year period in 15
sports, were caused by an institutional failure in the training and involvement of multiple campus
departments, poor record keeping within athletics, and improper coding in the institutional record keeping
program).

24
 a. The University’s compliance program met or exceeded the COI’s
standard.

The University’s compliance program met or exceeded the standards the COI set in its

“Principles of Institutional Control.” The University promoted compliance, educated coaches

and boosters about NCAA rules, monitored potential violations, and took strong action when

information about possible violations came to light. Response, pp. 71-95. The COI did not

identify any specific failures in the University’s approach to rules compliance, but instead cited

the violations coaching staff members and boosters committed as evidence of a lack of control.

Those violations were committed despite the University’s robust efforts to promote compliance

and are not indicative of any institutionalized failure sufficient to support the LOIC finding.

The University’s administrative leadership, compliance personnel, and head coaches

actively promoted compliance with NCAA legislation. The former head football coach, whom

the COI credited with an “admirable” approach to compliance despite a specific failure to

monitor certain actions of his staff, described this as a “shared program” with the University’s

compliance office, confirming that compliance with NCAA legislation was emphasized at all

levels of the University and its athletics programs. Hearing Tr. (September 11, 2017), pp. 122-

23, 127-28. Incoming employees in the football program – both on-field coaches and

administrative staff – were provided extensive rules education at the outset. University officials

conducted regular and consistent rules education sessions covering seasonally appropriate topics

as well as new developments in NCAA legislation. And the coaches who committed violations

all acknowledged that they were aware of their responsibilities under the NCAA Bylaws. This

was not a situation in which the coaches who committed violations were unaware of the rules or

otherwise uninformed because of insufficient emphasis on compliance or failure to dedicate

resources necessary to teach it.

25
 Nor were these violations a result of insufficient monitoring. The University’s

compliance staff worked diligently before, during, and after official and unofficial visits to

monitor coaching staff conduct for evidence of potential violations. Response, pp. 89-95.

Where potential issues were found – often through the independent efforts of the compliance

staff – they were investigated.19 Ultimately, the University’s compliance office detected many of

the violations alleged in the case that did not rely upon Bylaw 10.1, concerning unethical

conduct.20 Id., p. 95. The University’s compliance staff also uncovered and reported a

significant number of Level III or secondary violations, enough to provide for application of an

additional mitigating factor. See id., pp. 77-79. The COI also found yet another mitigating

factor based upon the University’s “[p]rompt self-detection and self-disclosure of the

violations[.]” Infractions Decision, p. 54.

The University acknowledges that, despite its efforts, violations still resulted. But for

decades the COI has emphasized that no rules education or monitoring program can guarantee

the absence of NCAA rules violations:

An institution cannot be expected to control the actions of every

individual who is in some way connected with its athletics
program. The deliberate or inadvertent violation of a rule by an
individual who is not in charge of compliance with rules that are
violated will not be considered to be due to a lack of institutional
control.

Principles of Institutional Control, pp. 1-2. Instead, when the institution implements “adequate

compliance measures,” conveys those measures “to those who need to be aware of them,”

19
For example, the University’s compliance staff gathered evidence of violations on its own
initiative while monitoring social media accounts in the aftermath of certain highly-publicized recruiting
weekends. See Response, p. 79. The evidence that the University developed on its own was ultimately
utilized in support of Allegation No. 5 (Violation IV.E.).
20
The University also meaningfully contributed to the discovery of the majority of violations in
the women’s basketball and track and field case.

26
monitors those measures to ensure they are being followed, and takes swift action upon learning

of a violation, the institution does not lack control. Id.

The evidence demonstrates that the University satisfied all four of these pillars. See, e.g.,

Response, pp. 73-75. Some of the violations resulted from honest mistakes in which individuals

were aware of the rules and believed they were following them. The remaining violations

resulted from intentional misconduct that staff members worked to hide from compliance. Under

the “Principles of Institutional Control,” however, neither scenario supports LOIC.

The same is true for booster misconduct. University boosters receive significant amounts

of education, including through social media, at in-person events, and via mailers and other

publicly available written materials. Response, pp. 81-85. This education – undisputed by the

COI – covers each rule at issue here and reached the boosters that committed a violation. Id., pp.

85-88. The majority of involved boosters acknowledged they understood the rules that were

violated, even if some of them believed (albeit incorrectly) that they were following those rules.

E.g., id., pp. 86 n.97, 87. Accordingly, there is no evidence that the University failed at an

institutional level to educate its boosters or to set expectations for rules compliance as required

under the “Principles of Institutional Control.”

Likewise, the uncontroverted evidence demonstrates that the University fulfilled its

responsibilities to monitor and, when necessary, swiftly punish its boosters. The University has

disassociated each responsible booster, including banning violators from attending any campus

athletics events or entering athletic facilities. Overall, the University has taken what it believes

to be an unparalleled approach to its boosters, not only in the terms of their disassociation but

also in the manner in which it is using these violations to further educate and warn other boosters

about their responsibility to comply with NCAA legislation. And the University has since placed

27
this information on its publicly available website. See, e.g., “Booster Sanctions Summary,”

available at: https://www.umncaacase.com. The University has consistently set a tone with its

boosters that NCAA rules violations will not be tolerated. The COI’s finding is clearly contrary

to the evidence.

b. The University did not fail to monitor Cannon Motors.

In finding lack of institutional control, the COI said the University lacked a system to

detect the use of loaner vehicles. See Infractions Decision, p. 50. But that is not true. In fact,

the compliance staff’s process identified both student-athletes who used loaner cars in this case.

One was discovered as part of a regular review of parking services reports involving student

athletes, and the other was found during a routine spot-check of parking lots student athletes

typically used. It was only because the involved student athletes either lied about the prior use or

had failed to register the vehicle as instructed that the full extent of loaner use was not

immediately discovered. Perhaps for that reason, there had never been a suggestion before the

Infractions Decision that this process was lacking in any specific way. See, e.g., Response, p. 96

(explaining that, “[t]o the University’s knowledge, the enforcement staff does not take issue with

[the process’s] breadth or application”).

The COI must have misunderstood or misapprehended the evidence. Contrary to what the

COI stated in its decision, the University had in place an extensive set of compliance procedures

that it used to monitor student-athlete vehicles. Specifically, throughout the relevant time period

compliance staff: (1) required all student-athletes to register their vehicles annually; 21 (2)

instructed student-athletes to timely register any change in vehicle status through an internal

21
If a student-athlete fails to provide the required registration paperwork and information to
compliance, the student-athlete is placed on an internal “hold list” and will not receive scholarship checks
until outstanding deficiencies are satisfied. FI No. 207, p. 39.

28
athletics database; (3) conducted regular inspections of the parking lots most often used by

student-athletes for suspicious or unfamiliar vehicles; (4) conducted ongoing rules education on

impermissible benefits and vehicle-related violations; (5) implemented a supplemental

monitoring system for “high profile” student-athletes in 2013-14, including regular meetings to

ensure no changes in vehicle status; and (6) requested and reviewed parking services reports to

cross-check vehicle registration information and to identify parking or traffic citations. Id., pp.

95-96.

Similarly, the COI must have misunderstood or misapprehended the evidence regarding

the compliance office’s actions after it discovered that then student-athlete [Student-Athlete 1]

was driving a Nissan Titan loaner vehicle from Cannon Motors. The COI asserted that the

University did not follow up on certain information to determine whether a violation had

occurred, but that statement is clearly contrary to the evidence. After the University’s

compliance office discovered (through a parking services report) that [Student-Athlete 1] had

been ticketed in the Titan, compliance staff located and checked the Titan’s vehicle identification

number (“VIN”) to ensure that it did not belong to a booster. Id., pp. 96-98. In particular, the

office requested and reviewed a VIN report that seemingly confirmed that fact. See, e.g., FI No.

223. The compliance staff then asked [Student-Athlete 1] about the Titan, and [Student-Athlete

1] told them that he had left his personal vehicle at Cannon Motors for repairs and that Cannon

Motors had provided the Titan as a loaner vehicle. Response, pp. 96-98.

But even at that point the University did not simply take [Student-Athlete 1’s] word for

what had occurred. Compliance staff reconciled [Student-Athlete 1’s] account that he had the

Titan for only a few weeks with the parking services report. Id. That report showed the Titan

had been ticketed several times between October 1, 2014, and October 3, 2014, approximately

29
two weeks prior to their inquiry (which matched [Student-Athlete 1’s] story). 22 Compliance also

followed up with several inquiries to the coaching staff, who all confirmed [Student-Athlete 1’s]

account. Id.

The University ultimately determined from the information it gathered that [Student-

Athlete 1’s] short-term use of a loaner vehicle while his personal vehicle was undergoing repairs

was not a violation.23 Nevertheless, the University required [Student-Athlete 1] to return the

vehicle, and its compliance staff followed up to confirm that he did. Id. It was not until later

that the University learned that [Student-Athlete 1’s] statements about how long he had used the

Titan were incorrect. But it does not follow even then that the University failed to monitor the

situation. To the contrary, the University took appropriate action to uncover potential violations,

followed the evidence where it lead, and then made a good-faith decision about whether the

information before it constituted a violation of NCAA legislation. 24

3. The infractions decisions cited by COI as support for its LOIC finding
demonstrate that its decision is incorrect.

The COI mistakenly relies on University of Southern California (June 10, 2010) and

University of Alabama (February 1, 2002) as decisions that support its LOIC finding. But a
22
Unbeknownst to the compliance office, information from the parking services database “rolled
off” after two weeks, so the report did not return information about tickets the Titan received in August
and September. Thus, when [Student-Athlete 1] told compliance that he only had the Titan for a few
weeks, nothing in the University’s records raised doubts about his statements. Response, p. 96 n. 106.
23
The enforcement staff effectively agreed with the University’s position. According to the 2017
Notice, it was the fact that [Student-Athlete 1] kept his loaner vehicle longer than necessary after being
informed that his personal vehicle was unrepairable that rendered the arrangement impermissible – not the
use of a loaner car in the first place.
24
In the same vein, similar to what occurred with [Student-Athlete 1’s] Titan, compliance staff
discovered [Student-Athlete 2’s] loaner vehicle during a routine spot-check of parking lots student-
athletes typically used. See Response, p. 113. Although the vehicle had been ticketed on campus
previously, neither those tickets nor the vehicle had been linked to [Student-Athlete 2] because he had not
registered the car with parking services. As such, had it not been for the University’s compliance process
and determination to uncover possible infractions, [Student-Athlete 2’s] loaner vehicle likely would not
have been identified – either as a loaner or an NCAA rules violation – until much later, if at all.

30
comparison of those cases to this one only further underscores why the University did not lack

institutional control.

In University of Southern California, the COI made an LOIC finding based upon what it

described as the institution’s failure to heed multiple warning signs that a highly visible booster

was committing violations of NCAA rules. The COI determined that the University of Southern

California (“USC”) failed to investigate questions that arose when a sports marketing agency

hired a high-profile student-athlete and the sports marketer appeared on the sidelines during

football games. USC ignored recommendations from compliance to interview the involved

student-athlete, and to conduct an inquiry following media speculation that the sports marketer

was committing NCAA violations. The athletics staff also recognized the impropriety of other

activities by the same sports marketer, but the institution did not investigate them. Nor did USC

look into information that should have alerted it to a prospect’s involvement with a booster who

previously had provided impermissible benefits.25 The COI found that these institutional failures

provided the necessary factual connection between the underlying booster-related violations and

the institution’s compliance efforts to support an LOIC finding.

In contrast to University of Southern California, the University took aggressive action

whenever an alleged violation was brought to its attention and did not ignore compliance

recommendations. Moreover, the boosters at issue in the University’s case did not raise the

25
The COI found multiple other instances where the institution did not: (1) investigate a high
profile promoter’s involvement in recruiting; (2) follow up on information suggesting a student-athlete
was being paid to attend the institution; (3) follow up on how a student-athlete was paying for private,
individual workouts; (4) follow up on reports that one of the representatives involved with a student-
athlete was a runner for an agent; (5) heed a request from compliance that the institution end the
recruitment of one prospect based on the very public questions about that prospect’s amateur status and
his involvement with runners and agents; and (6) take action in regard to a high-profile prospect’s
recruitment when the former men’s basketball head coach, assistant men’s basketball coach, institutional
compliance staff, and athletics director knew that a representative acting as the “point person” for the
prospect had committed two NCAA violations, including the prospect serving as a runner for the agent.

31
types of “red flags” that were at issue there. There is a wide gulf between what USC knew about

its boosters at the time the violations were occurring and the information openly available to the

University about impermissible booster activity. In that regard, it is no coincidence that the most

blatant acts of NCAA rules violations were committed by boosters who intentionally sought to

cover their tracks and avoid detection by the University’s compliance staff.

The University of Alabama case, in which the COI did not make an LOIC finding, is

similarly instructive. The COI reached its conclusion in that case – that the University of

Alabama (“Alabama”) had control over its football program – even though it had failed to

address multiple, very public warning signs of potential violations, including the fact that one

booster, who called himself a “recruiting junkie,” publicly claimed that he was responsible for

coaches being fired and made personal loans to staff. University of Alabama, pp. 2, 4.

Alabama’s athletics director caught this same booster meeting with the father of a highly touted

recruit in a room at the team hotel but did not report the incident to compliance in violation of

institution protocol. Id., p. 4. Moreover, other athletics representatives reported concerns

regarding a second involved booster, a known friend of the first, who was in frequent and close

contact with football players. Id., p. 2. Despite being on notice of clear and obvious issues,

officials took no meaningful action, and violations resulted in both instances.

According to the COI, the boosters’ activity had not resulted in a loss of institutional

control. Nor did it matter that Alabama had been classified as a repeat violator, having already

had an “experience with athletics representative misconduct.” 26 Id., p. 5. Rather, the COI

26
The 2002 infractions case was Alabama’s third case before the COI within seven years, each of
which “involved the provision or offer of significant benefits to enrolled or prospective student-athletes”
or others by university coaches or boosters. University of Alabama, p. 1. Despite Alabama’s repeat-
violator status arising out of similar major infractions cases in multiple sports, the COI deemed such

32
determined that there was an insufficient basis to make an LOIC finding against Alabama for the

acts of boosters who clearly knew better. This is consistent with rulings in other cases where

even a large number of violations have not resulted in a finding of loss of institutional control.

The University does not condone the improper conduct at issue in this case. But unlike

the COI’s decisions in University of Alabama and University of Southern California, the

violations that resulted here were not the result of the University’s inaction or institutional

leaders failing to follow through on their responsibilities. With one exception in each category,

none of the coaches or staff involved with boosters still works for the University. None of the

boosters the NCAA identified is still associated with the University with the exception of one

booster whose alleged violation the University contends is erroneous and has appealed. This is

exactly the kind of “control” the COI found missing in the University’s 1994 report. Because

this case is clearly distinguishable from the very precedent the COI utilized to justify its LOIC

finding, Violation IV.P. should be vacated in its entirety.

4. The COI committed a procedural error in considering findings from

the University’s 2016 infractions case as evidence of a loss of
institutional control.

Lastly, the COI improperly and unfairly considered two head coach responsibility

findings from the University’s separate women’s basketball and track and field case. 27 After the

University responded to the 2016 Notice, but before an infractions hearing could take place, the

COI procedurally severed the football allegations from the rest of the case. The University

factors as “too tenuous and insufficient to form the basis of a lack of institutional control finding.” Id., p.
5.
27
The former women’s basketball coach was found to have failed to monitor his program during
one month while he was moving his family from California to Mississippi. The former track and field
coach was found to have not promoted an atmosphere of compliance when he had knowledge of or
potentially encouraged impermissible contact violations and did not report them to compliance and failed
to monitor his staff with respect to a Level II violation. See generally Infractions Decision No. 460.

33
objected to that severance for multiple reasons, including a fear the COI might rely upon the fact

that one case had become two to the University’s detriment.

The University’s concern was well-founded. The COI utilized those findings against the

University in contravention of principles of fundamental fairness and the applicable Bylaws after

providing what the University believed were assurances that it would not do so. Moreover,

while the COI relied on negative findings from the prior case, it failed to consider the

University’s exemplary cooperation 28 and other facts from that case which manifestly

demonstrate institutional control, including the University’s discovery (either entirely or in part)

of more than 70 percent of the allegations included in the 2016 Notice. 29 If the COI is entitled to

consider negative facts from the prior case, it must also consider the positive facts, which it

failed to do here. The LOIC finding should be overturned for this additional reason.

28
In the University’s 2016 infractions case, the enforcement staff inexplicably did not cite
exemplary cooperation as a mitigating factor. Nevertheless, the enforcement staff expressly cited and
implicitly conceded at least two of the three specific factual findings the membership has established as
prima facie evidence of exemplary cooperation.
29
Of the 28 allegations contained in the 2016 Notice:
 The University investigated and reported 10 violations to the NCAA with little involvement from
the enforcement staff until late in the process;
 For another eight allegations, the University uncovered and reported the initial information that
led to the discovery of potential violations by the University and the enforcement staff acting in
concert;
 With two others, the initial information came from the enforcement staff but the University’s
exemplary cooperation and diligent investigation led, in whole or in part, to the discovery of the
violation; and
 For the remaining eight allegations, the initial information that led to the discovery of the alleged
violation came from the enforcement staff, and the University fully participated in and cooperated
with the enforcement staff in discovering the underlying facts.

34
 E. The COI’s Finding That A Retail Store Provided Free Clothing And
Merchandise To Prospective Student-Athletes, Their Families, Or
Acquaintances Is Clearly Contrary To The Evidence, Some Of Which Was
Not Fully Investigated.

In Violation IV.G., the COI found that an assistant football coach and off-field staffer

directed prospective student-athletes to Rebel Rags, LLC (“Rebel Rags”), a retail store located

near the University’s campus, so that that these prospects and members of their families would

receive free merchandise from the store’s owner. This finding is clearly contrary to the evidence

for three reasons.

First, the COI’s decision to credit the biased, inconsistency-riddled accounts was

erroneous. The COI credited these uncorroborated stories because they were “similar” and

“[n]one of the three individuals knew each other at the times they gave their accounts.” But that

was not true. Two of the individuals were, in fact, teammates (or future teammates who had

already struck up a relationship) at the time of their interviews. Their stories were contradicted

by the accounts of numerous other non-biased witnesses. Second, the COI’s decision ignores

objective documentary evidence showing the stories to be untrue. Third, the COI repeatedly

denied the University’s procedural requests to compel certain interviews and obtain clearly

relevant information. These denials had a negative impact on the University’s ability to

challenge this allegation. They also tainted the COI’s approach, to the University’s detriment.

1. The COI’s decision to credit the allegations by three different

witnesses because they told “similar” stories and did not know each
other was based on incorrect facts.

As a preliminary matter, the COI got the facts wrong in crediting the three individuals’

allegations involving Rebel Rags. The COI is incorrect in saying that they told “similar” stories

and that their stories deserved to be credited because “[n]one of the three individuals knew each

other at the times they gave their accounts ….” Infractions Decision, p. 32. Instead, the three

35
stories at issue diverged in important respects, and it is clear that at least two of the three

individuals knew each other when they were interviewed. Further, the COI erred in crediting the

stories when they were contradicted by the accounts of 15 other non-biased individuals

(including other recruits, family members of recruits, and the head high school football coach of

a recruit) who firmly denied that any such thing had occurred.

[Family Member 1]. The first source was [Family Member 1], the step-father of then

prospect [Student-Athlete 1]. [Family Member 1] got into a fistfight with [Student-Athlete 1]

and sued him. [Family Member 1] then launched a barrage of allegations about [Student-Athlete

1] and the University, the majority of which were quickly proved to be false. Among them was a

claim that former assistant football coach Chris Kiffin told [Family Member 1] and his family to

go to Rebel Rags, that they travelled to Rebel Rags alone, and that, once there, they were

approached by Terry Warren, Rebel Rags’s owner, who said they could take up to $400 worth of

merchandise. According to [Family Member 1], after he and Warren spoke, the family (who all

dispute [Family Member 1’s] claim) was allowed to simply walk the merchandise out of the

store. [Family Member 1] said that Kiffin called Warren prior to the visit to arrange all of this.

Not only did the owner of Rebel Rags deny this, but the coach’s phone records do not show any

call between Kiffin and Warren until after [Student-Athlete 1’s] family had left town, a fact

which the COI’s decision curiously cited, without discussion, to show the event was prearranged.

See, e.g., FI No. 358.

The COI’s decision does not otherwise attempt to reconcile the implausibility of [Family

Member 1’s] story. According to Rebel Rags, the value of the merchandise [Family Member 1]

claimed to have simply walked out with would have been approximately $1,500, more than three

times what [Family Member 1] claimed to have received. Nor does the Infractions Decision

36
account for the fact that five other members of [Student-Athlete 1’s] family who were

interviewed about Rebel Rags denied what [Family Member 1] alleged took place. These family

members said that they were directed by Kiffin to Rebel Rags, but that they purchased items

themselves – they did not receive anything for free.

[Student-Athlete 39]. [Student-Athlete 39’s] story is substantially different. [Student-

Athlete 39] alleges that Barney Farrar, a former assistant athletic director, arranged for him to be

transported to Rebel Rags. Once there, this individual either gave a credit-card sized card to

[Student-Athlete 39] with $400 on it or held onto the card while [Student-Athlete 39] walked

through the store and gathered items. According to [Student-Athlete 39] in his interviews, he

checked out like a normal customer; the merchandise was scanned into Rebel Rags’s computer

system, the card was swiped, and he left with the merchandise. 30 [Student-Athlete 39] also

falsely claimed that the cashier removed security clips from the merchandise, which was an

impossibility because Rebel Rags has never utilized such security devices. FI No. 270, p. 62-63

(“We don't even have security clips. There’s no security clips on any product in that [store] ....

Not one item.”). [Student-Athlete 39’s] cousins and self-identified best friends expressly denied

that they had ever seen [Student-Athlete 39] in possession of the “shorts … sweatpants … T-

shirts … [and] baseball jerseys” [Student-Athlete 39] claimed to have received from Rebel Rags.

Neither [Student-Athlete 39] nor the person he allegedly gave the items to on a later date was

able to provide photographs or other physical evidence that the merchandise ever existed. See

Response, pp. 30-31.

30
At the hearing, [Student-Athlete 39] reversed his prior testimony and said that the card was
given to the cashier but never swiped. Hearing Tr. (September 11, 2017), p. 270.

37
 [Student-Athlete 40]. [Student-Athlete 40’s] story departs in still more key areas. After

he supposedly arrived at Rebel Rags, [Student-Athlete 40] claims he was instructed to ask for

“Emily” so that she could escort him around the store. FI No. 226, pp. 18-20. The store has

never employed anyone named Emily. See Response, Exhibit 9-1, Affidavits of Terry Warren (¶

17), [Rebel Rags Employee 1] (¶ 8), and [Rebel Rags Employee 2] (¶ 1). [Student-Athlete 40]

claims he checked out at the register with approximately $500 worth of merchandise. But any

card transaction would be captured in Rebel Rags’ cash register transaction history, and the

store’s computers do not show any remotely similar transaction on the days of his visits.

According to [Student-Athlete 40], he did this four or five times during his unofficial and official

visits to campus, for a total of about $2,000-2,500 worth of merchandise.

[Student-Athlete 40] was never asked to account for how he got from the University’s

campus to Rebel Rags or to specify the type of merchandise he allegedly received. The

enforcement staff did not ask to see the merchandise when [Student-Athlete 40] was interviewed

at his home. His high school football coach, [High School Coach 1], took [Student-Athlete 40]

on most of his visits to Oxford and told the enforcement staff and the University that it would

have been impossible for [Student-Athlete 40] to have gone to Rebel Rags on the days he claims

to have gone to the store and that he never saw [Student-Athlete 40] with any merchandise

except the minimal items he ([High School Coach 1]) bought. The other student athletes who

were with [Student-Athlete 40] also denied his story. 31 See Response, pp. 32-33.

31
One high-profile prospect who signed with a rival institution, [Student-Athlete 42], was part of
that group. [Student-Athlete 42] confirmed that he went to Rebel Rags during the visit that [Student-
Athlete 40] had described but was clear that he paid for whatever merchandise he left with. FI No. 224, p.
19.

38
 None of these stories is believable on their face, particularly in light of the accounts of

non-biased witnesses and the objective evidence discussed below. Given the myriad

inconsistencies among them, they only fare worse collectively.

Likewise, the COI’s finding that “[n]one of the three individuals knew each other at the

times they gave their accounts” is factually wrong. See Infractions Decision, p. 34. [Student-

Athlete 40] was interviewed in February 2016, during his senior year at [Location 10] High

School. At that time, [Student-Athlete 39] was a freshman at [Institution 10], also located in

[Location 10]. [Student-Athlete 39] confirmed at the hearing that he and [Student-Athlete 40]

got to know each other while [Student-Athlete 40] was in high school and being recruited by

[Institution 10]. Hearing Tr. (September 11, 2017), pp. 232-33 ([Student-Athlete 39] explains

that he met [Student-Athlete 40] during his first “summer” at [Institution 10]). Thus, it is not

true that [Student-Athlete 39] and [Student-Athlete 40] did not know each other during [Student-

Athlete 40’s] interview. And by the time of [Student-Athlete 39’s] interview in 2017, [Student-

Athlete 40] and [Student-Athlete 39] had been teammates on the [Institution 10] football team

for months. Once again, the COI’s credibility determination rests upon an erroneous factual

assumption and should be overturned.

2. The objective evidence affirmatively disproves all three allegations.

In this kind of case, where witnesses are potentially motivated to fabricate evidence, the

COI has emphasized the importance of relying upon objective documentary records as a check

against false claims and the necessity of specific corroboration of allegations before making a

finding. See e.g., University of Miami (October 22, 2013), p. 3 (recognizing the need to seek and

find “corroboration through the statements of individuals[, . . .] as well as, through supporting

documentation” when faced with a witness presenting “inconsistent statements and

39
information”). The COI did neither here. As a result, the COI’s finding should be reversed as

clearly contrary to the evidence.

Specifically, the University presented objective evidence in the form of phone records

and purchase records from Rebel Rags’s computer system that fundamentally foreclose the

allegations made by each of the three individuals at issue. See generally Response, Exhibit 9-1.

[Family Member 1’s] story, for one, is contradicted by phone records. And as stated above, the

transactions could not have occurred as [Student-Athlete 39] and [Student-Athlete 40] alleged.

The types of purchases they described would be captured in Rebel Rags’ cash register transaction

history, and that history is entirely devoid of any transaction fitting their descriptions. 32

Moreover, [High School Coach 1], a disinterested third party as [Student-Athlete 40’s] high

school football coach, affirmatively stated that, in light of his first-hand knowledge, [Student-

Athlete 40] did not and could not have received free merchandise from Rebel Rags on several of

the dates [Student-Athlete 40] alleged he did. The Infractions Decision does nothing to account

for these objective facts, all of which make it highly implausible that Violation IV.G. occurred.

The COI’s finding is clearly contrary to the evidence for this additional reason.

3. The COI’s procedural errors prevented the University from

presenting evidence contrary to the allegation at the hearing, resulting
in the COI selectively considering evidence and considering improper
evidence.

Finally, the COI’s decision should also be set aside in light of the many procedural errors

that prevented the University from having access to clearly relevant information that would have

32
At the hearing, the NCAA enforcement staff said that it did not doubt the accuracy of Rebel
Rags’s records, but that their theory of the case was that all the individuals just “walked out” of the store
without a cash register transaction. Hearing Tr. (September 11, 2017), p. 251. But both [Student-Athlete
40] and [Student-Athlete 39] in their interviews (though [Student-Athlete 39’s] testimony was
inconsistent at the hearing) clearly stated that they checked out with some form of gift card at the register.
The Infractions Decision does nothing to account for this inconsistency, which precludes the entire Rebel
Rags allegation.

40
further disproved the allegations by [Family Member 1], [Student-Athlete 39], and [Student-

Athlete 40]. As the University explained in several letters to the COI, it was prevented from a

full and fair opportunity to seek information related to [Student-Athlete 39’s] allegations. In

fact, the enforcement staff actually withheld exculpatory information from the University and its

counsel before the hearing, which hampered the University’s efforts to address the allegations.

This conduct rendered the process fundamentally unfair by any accepted standard.

First, even when the University was allowed to attend an interview conducted by the

enforcement staff, [Student-Athlete 39] refused to answer the University’s questions, and the

enforcement staff similarly refused to make inquiries of [Student-Athlete 39] that the University

believed were necessary to make a complete record. Moreover, despite multiple requests for the

COI to require the enforcement staff to make available certain information from a simultaneous

investigation into [Institution 10] that would have borne on [Student-Athlete 39’s] credibility, the

COI refused.

As a result, it was only at the hearing that the University was able to learn that [Student-

Athlete 39] had been paid $10,000 by an individual connected to a teammate of his from

[Institution 10], [Student-Athlete 46]. See Supplement to Response to Notice of Allegations, p.

1. [Student-Athlete 46’s] testimony, upon which the enforcement staff heavily relied in support

of the Rebel Rags allegation, was therefore inherently suspect (if not entirely fabricated). Id., pp.

2-3. Had the University been granted access to such information before the hearing –

information which was in the enforcement staff’s possession well before the hearing – the

University could have put forward additional evidence regarding the falsity of [Student-Athlete

39’s] allegations. In addition, by the time the University was alerted to these allegations,

relevant time-sensitive information such as phone records was no longer available. That the COI

41
prevented the University from fully investigating and presenting its case was reversible

procedural error.

Second, the COI’s finding is clearly contrary to the evidence and procedurally improper

insofar as it expressly relies upon an unsolicited and untested video from [Student-Athlete 40’s]

attorney featuring [Student-Athlete 40’s] mother describing certain items that she supposedly

received from Rebel Rags.33 Procedurally, the COI should not have relied upon this evidence

since the parties were not given an opportunity to vet the information included in that video,

which, as was explained at the hearing, could easily have been fabricated. After the University

was notified about the video, the University sought to interview [Student-Athlete 40] and his

mother about the merchandise [Student-Athlete 40’s] mother displayed in it. Both declined the

University’s request for information. The University then asked the enforcement staff to conduct

a follow-up interview of [Student-Athlete 40], but the staff refused. Finally, the University

asked the COI to compel [Student-Athlete 40] to sit for an interview, but the COI rejected this

request. In sum, the COI procedurally erred and violated the principle of fundamental fairness

when it accepted the video as evidence and relied upon the entirely untested assertions of

[Student-Athlete 40’s] mother to support both his claims and the otherwise uncorroborated

claims of [Family Member 1] and [Student-Athlete 39]. For this reason, the COI’s finding is

based upon a procedural error that, in conjunction with the factual mistakes previously described,

requires the finding to be reversed. 34

33
During his interview, [Student-Athlete 40] did not suggest that his mother or father had ever
gone with him to Rebel Rags, much less on every one of the four to five visits he claimed to have visited
the store. Yet, in the video, it is clear that [Student-Athlete 40’s] mother is suggesting that she was
present when the merchandise was obtained. Hence, the video contradicts [Student-Athlete 40’s] account
more than confirms it.
34
In light of its position on the factual finding, the University also contests the COI-imposed
disassociation of Rebel Rags’s owner as an abuse of discretion. See Penalty VII.13.

42
V. CONCLUSION

The COI abused its discretion, departed from precedent, committed procedural errors,

and reached factual conclusions inconsistent with the evidence. Accordingly, the University

requests:

 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 lifted (Penalty VII.11.-13.);

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

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

43