Tuesday, November 17, 2009

Panic level: Moderate

Like many of you, the recent admission from the University that they had not submitted countable athletically related activities (CARA) reports from the 2008-2009 academic year was pretty bothersome and foreboding. The Detroit News and Free Press both handed in their take on the situation and neither one of them were particularly positive. The Michigan Daily also ran something yesterday, which also included the various documents that the University had been circulating on the situation. I suggest you read it.

So being a journalist of sorts, I decided to do a little digging and see what exactly this all means. The comment from the Daily that stuck out to me was this one:

Michael Buckner, a lawyer from Florida who consults with universities during NCAA investigations, told the Free Press that if the University cannot produce evidence to convince the NCAA of its innocence, there could be much more trouble for the Athletic Department.

“The enforcement staff is going to be looking at whether the institution failed to monitor,” he told the Free Press.

Buckner continued by telling the Free Press that could be “a major violation.”

After doing some digging into past violations and otherwise on the NCAA website, I found that in almost all cases of major violations, they cited either a lack of institutional control or a failure to monitor. The separation between the two is as such, per the NCAA website:

2. Failure to Monitor vs. Lack of Control.
a. D-I: In recent years, failure to monitor was cited at a greater rate than lack of control, suggesting that institutions may be doing a better job of putting systems for control in place but need to enhance monitoring.
b. D-II/D-III: In recent years, lack of control was cited in nearly every case, suggesting that institutions may still have work to do in establishing appropriate systems for control.
c. Considerations when evaluating failure to monitor vs. lack of control (not intended to be an exhaustive list):

(1) Duration/frequency of violations.
(2) Visibility of violations.
(3) Warning signs to institution.
(4) Number of involved student-athletes/teams.
(5) Number of involved staff members.
(6) Significance of impermissible benefit.
(7) Recruiting/competitive advantage gained.
(8) Self-report or report from outside source.

d. Multiple failures to monitor can be viewed as a lack of institutional control.
e. In failure to monitor cases, adequate systems for compliance often exist, but the institution fails to pay proper attention to a limited area and/or for a limited period of time.

Given the reports we've recently heard--that Michigan's compliance department didn't obtain the CARA forms from Rodriguez but eventually filed their own audit in response--it seems that Michigan is almost certainly guilty of a failure to monitor. It would be pretty difficult, given the outline above to make a case that Michigan didn't have institutional control and were repeatedly unaware of what was going on. Though the lack of CARA forms extended to over a year, the University audit may play as a significant factor into the NCAA's judgment.

Plainly put, however, this is an NCAA violation. Whether it was, as MGoBlog suggested, Rodriguez telling someone in the compliance department to to buzz off or the compliance department simply not doing its job, one way or another Michigan will be reprimanded for this. If there are no other violations found, the fact that Michigan filed an internal audit on the situation prior to the Free Press report, Michigan will probably get a public reprimand and be asked for records on a fairly consistent basis for the next few years--in the various NCAA official documents, it's "public reprimand and censure". It would be difficult for the NCAA, unless they were on a serious crusade, to make anything more than a failure to monitor out of the current situation.

However, the lack of these records does one of two things: a) indefinitely validates the accusations of former/anonymous players or b) acts as, essentially, a safeguard against the comments made by the former players. Since the missing records are directly from the time in which the program is being accused of overworking players, my guess is that the NCAA is going to take the accusations significantly more seriously. Michigan is going to have to make sure the rest of their paperwork is in order (spot checks, educational sessions, the subsequently collected CARA reports, etc.) to avoid a more serious NCAA reaction.


Barring unforseen clerical errors and a lack of institutional control ruling, Michigan is still going to deal with the fact that, with no paperwork to prove its innocence, it's staring down several players that are accusing the program of overworking its student athletes. I started looking into a lot of different major violation cases to try and get a handle on what kind of penalty might be passed down. There aren't really any cases that are as relatively pedestrian as this one. In the cases where players are overworked, there are also a variety of issues including immoral conduct from coaches, recruiting violations, financial aid issues, and other problems. In all of these cases, the most severe penalty handed down is a loss of scholarships and postseason ban for a few years.

Obviously, this would be devastating. But even if Michigan is given such a ban, there's precedent for having it repealed. With the excessive hours put in by players, the NCAA, aside from its 20-rule is most concerned with the idea of competitive advantage. It's described as such:

The structure and programs of the Association and the activities of its members shall promote opportunity for equity in competition to assure that individual student-athletes and institutions will not be prevented unfairly from achieving the benefits inherent in participation in intercollegiate athletics.

Those benefits of intercollegiate athletics presumably include winning. And if that's the case, well... 8-15 doesn't exactly scream competitive advantage. I highly doubt Michigan could use that as a valid retort, but I digress. In February, Eastern Washington University was hit with an NCAA violation from 2003-2004 when 13 players who were ineligible, practiced with coaches. Eastern Washington was hit with the aforementioned public censure and reprimand and a post-season ban. The school, however, appealed the ban as it was based on the program gaining a competitive advantage due to the excessive workouts.

The NCAA's ruling for repealing such a ban had to prove that an abuse of discretion had occurred due to one of the following:

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

This is where things bode well for Michigan as the ban was eventually overturned. But it's not just that it was overturned, but why (emphasis mine):

The NCAA Division I Infractions Appeals Committee has overturned a postseason ban for Eastern Washington University’s football program, saying that the competitive advantage the school gained through the violations was not as significant as the Committee on Infractions had claimed.

The Infractions Appeals Committee noted that the Committee on Infractions based the postseason ban “substantially on (the Committee on Infractions’) judgment” that the violations provided the university with a significant competitive advantage. However, the Infractions Appeals Committee found that the violations in the case did not justify that conclusion. Rather, it noted that “while the violations provided some competitive advantage, the conclusion that the advantage was ‘significant’ was a clear error of judgment, such that the imposition of the postseason ban was arbitrary.”

In support of this decision, the Infractions Appeals Committee noted that of the 13 persons involved in the impermissible practice violations, most never competed for the team, or competed in a limited capacity.

The fact that the allegations that still stand are from former players and transfers, it seems as though Michigan may be subject to a similar fate if the NCAA decides to come down with a postseason ban.

For the record, I don't think they will. Another case study in 2005: There was a case against Florida International that included, "impermissible skill instruction; impermissible out-of-season athletically related activities, unethical conduct and a failure to monitor." There's a lot of the same stuff Michigan is dealing with here, and the penalties included "public reprimand and censure, three-years of probation, show cause provision placed on the former assistant football coach involved in this case and annual compliance reporting required". The relevant aspect for Michigan, however, is this:

During the summer of 2004, the head strength coach took attendance of football student athletes participating in voluntary strength and conditioning activities. The head strength coach maintained weekly attendance logs indicating a student-athlete's presence during summer strength and conditioning workouts. The head strength coach then periodically reported the information regarding a football student-athlete's attendance to the head football coach as well as selected assistant football coaches.

Long story short, the initial allegations appear to be secondary in these sorts of cases, so that's good. Furthermore, the things that constitute major violations, and presumably a postseason ban are mostly avoided in the Michigan case--failure to monitor rather than lack of institutional control, and secondary violations rather than major ones.

So what's the upshot? Well, the bad news is that Michigan is probably going to be punished by the NCAA in some regard. The failure to monitor charge will be the main thing Michigan is hit with if nothing else serious surfaces. This should bring down public reprimand from the NCAA. But the fact that Michigan launched an internal audit on the problem and has since corrected the recently found issues, Michigan should be spared something more serious. In terms of the allegations? Well, it will probably end up being nothing more than fluff that eventually gets either entirely dismissed or appealed away.

I can't see any way Michigan gets hit with major NCAA violations here. And if they do, like I said, appeals have a good chance of doing away with the problems we currently know about.


Post a Comment