Category Archives: Violations
Guest author: Benjamin Haynes, Esq.
University of Miami’s football player Dyron Dye was disciplined back in 2011 by the NCAA when the NCAA concluded that Dye had accepted impermissible benefits from a Miami Hurricane booster. Dye was required to sit out four games and was ordered to repay $738 in impermissible benefits. Now, as a senior, Dye is once again being investigated by the NCAA for potential rule violations stemming out of the same incident. On Tuesday May 28, NCAA investigators met with Dye for the third time. The reason for this third meeting was that the NCAA claimed that there are discrepancies between what Dye told the NCAA in 2011 about former Hurricanes assistant coach Aubrey Hill and what Dye wrote in a recently signed affidavit. Dye’s attorney, Darren Heitner, stated that “my client stands behind the statements he made in his affidavit, which we understand is supported by affidavits signed by other former players.” While Dye has already been penalized for receiving impressible benefits, this new allegation by the NCAA could result in further sanctions against Dye under NCAA Bylaw 10.1.
NCAA Bylaw 10.1 deals with unethical conduct. The rule specifically states that “unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member (e.g., coach, professor, tutor, teaching assistant, student manager, student trainer) may include, but is not limited to, the following.” The rule then goes on to list nine separate categories which may constitute unethical conduct. For purposes of this article, the category which the NCAA may potentially try and claim Dye violated is “(d) knowingly furnishing the NCAA or the individual’s institution false or misleading information concerning the individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.” Dyron Dye’s discrepancies between his recent affidavit and 2011 statements could potentially constitute a violation of knowingly furnishing the NCAA with false and misleading information. However, these may be some valid defenses to these alleged discrepancies.
Dyron Dye wrote in his statement that he felt that the NCAA had twisted his testimony. In fact, many of the current and former Miami Hurricane football players that were interviewed by former investigator Rich Johanningmeier stated that the NCAA used means of intimidation and threats while interviewing the players. Those alleged threats, according to Dye’s affidavit, were threats of penalizing the players by making them ineligible and pulling their scholarships. If such allegations are found to be true, then the NCAA could potentially be sued for extortion.
Under Florida law, specifically Florida Statute 836.05, whoever maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, with intent thereby to extort money or with intent to compel the person so threatened to do any act or refrain from doing any act against his or her will, they shall be guilty of a felony of the second degree.
Therefore, under this Florida statute, Dye may be able to argue that the NCAA maliciously threatened, against Dye’s will, to injure his property or reputation if Dye did not testify in a manner consistent with what the NCAA was directing. In fact, Dye stated that he “felt compelled to testify in a manner that would be consistent with the manner in which Mr. Johanningmeier was directing me in order to keep my eligibility.” One would think that the NCAA’s primary goal in conducting such an interview would be to get the absolute truth of the situation, and not stoop to the means of threatening teenagers and young men in order to have facts twisted in the NCAA’s favor.
It is expected that more former Hurricane players involved in this incident will come forth and state that the NCAA threatened scholarships and eligibility to them as well. The more players that come out and corroborate Dye’s testimony, the stronger case Dye will be able to build when defending himself amidst a 10.1 ethical violation allegation, and potentially seeking an extortion cause of action against the NCAA.
Benjamin Haynes, Esq. wrote this article. Haynes is a former Division 1 Basketball Player at Oral Roberts University and currently practices law in the State of Florida. Follow him at @BHaynes32.
After making a public records request in December, the Oregonian and KATU.com received over 500 pages of documents related to alleged NCAA violations committed by Oregon’s football program between 2008 and 2011. The documents detail findings related largely to Oregon’s payment to a recruiting service company, whose talent scout, Will Lyles, allegedly had impermissible contact with prospective Oregon student-athletes. While reports have focused upon Oregon’s payment of $25,000 to Lyles’ recruiting service agency, it appears that the bulk of the NCAA’s concern does not lie with that payment, but rather, practices that Lyles allegedly engaged in.
One such practice is that Lyles allegedly did not provide written or video reports about recruits to Oregon. Under NCAA bylaw 13.14.3, recruiting services must provide subscribers with written or video reports quarterly. Up until 2011, Lyles allegedly provided neither, but instead, provided Oregon with oral reports about prospective student-athletes. On the face, this practice seems like a minor issue and another instance of the NCAA making a mountain out of a molehill. However, the NCAA requires recruiting and scouting service companies to provide written or video reports to prevent institutions from gaining unfair advantages when it comes to gleaning information about recruits. Requiring written or video reports ensures that each institution subscribing to the service receives the same information.
Given that Lyles allegedly was providing oral reports to Oregon, the notion is that Oregon was getting information about recruits that other institutions using Lyles’ services were not receiving. It is unknown whether this was the case, but a number of recruits with ties to Lyles eventually signed with Oregon. This, however, does not in and of itself depict any impropriety by Oregon or Lyles.
Perhaps the biggest issue Oregon faces, though, is explaining allegations that upon the NCAA’s discovery that Lyles wasn’t providing Oregon with written or video reports, that Lyles allegedly provided “outdated” reports to Oregon. From the outside, this allegation depicts a cover-up of sorts. If a cover-up was in fact orchestrated, it is for the NCAA to decide who ordered the cover-up. Did Lyles earnestly provide written reports to save face with the NCAA in an honest attempt to continue being an NCAA-sanctioned recruiting service? Or, did Oregon ask him to do so after the NCAA realized that Lyles hadn’t provided the report? In the coming months, Oregon should prepare to answer this question. Should the NCAA find that the cover-up was upon Oregon’s request, the program will likely suffer stiffer penalties from the NCAA.
For now, the biggest issue Oregon faces is whether the football program’s alleged receipt of Lyles’ oral reports on recruits was a major or secondary NCAA violation. Secondary infractions are those isolated or inadvertent instances that only provide minimal recruiting, competitive or other advantages. Major infractions provide major recruiting or competitive advantages. Over the coming months, the NCAA’s committee on infractions will issue a final report on its findings related to whether a major or secondary violation was committed. Thereafter, sometime within the year, Oregon will have a hearing before the committee on infractions.
The good news, perhaps, for Oregon is that reports indicate that the NCAA found neither a lack of institutional control nor unethical conduct present. These factors should help Oregon avoid some of the NCAA’s harsher penalties. However, one issue Oregon continues to face is that the NCAA may determine it is a repeat violator, as the alleged violations came within five years of Oregon’s 2004 violations. Should Oregon be deemed to be a repeat violator of the NCAA bylaws, harsher penalties could be imposed on that ground.
Overall, Oregon must prepare the case as to why this alleged violation did not amount to a major violation. To do this, it must show that it did not receive major recruiting or competitive advantages. This may be difficult, given the recruits Lyles was allegedly tied to who committed to Oregon. Reports indicate that Lyles served as a “mentor” to LaMichael James, Tra Carson, Dontae Williams and Marcus Davis, all of whom committed to Oregon. Thus, Oregon must work to demonstrate that it would have recruited those student-athletes even without the information Lyles provided them with orally. Given the talent level of these players, this arguably won’t be difficult to accomplish. Additionally, Oregon must demonstrate that those recruits’ decisions to commit to Oregon were unattached to any relationship they may have had with Lyles. This may prove to be the more difficult task for Oregon. However, given the program’s offerings and success over recent years, it likely will not be impossible. Nonetheless, spring is shaping up to be a busy time for Oregon’s athletics department.
By: Alexandria Jenkins
An entire nation was left shocked and speechless when news of the Jerry Sandusky sex-abuse scandal surfaced in November 2011. The Penn State community fell victim to the horrifying betrayal of its former defensive coordinator and was forced to sit by idly as the effects of the crime rippled through “Happy Valley.” For university officials, students, fans and alumni alike, nothing could have proven more sickening than the life-long damage inflicted on Sandusky’s victims.
Then, as if to rub salt in the wound, the NCAA imposed an unprecedented $60 million, five-year fine and four-year postseason ban on the Nittany Lions. Additionally, numerous sponsors cut ties with the university, with along with other costs associated with the scandal brought the school’s total estimated losses attributed to the scandal to $46 million and counting over the past 17 months, according to an article posted by Advertising Age.
Since Dec. 31, 2012, Penn State says it has spent more than $41 million on NCAA fines, legal and consulting fees. Advertising Age added that the university has lost more than $1 million in sponsorship/advertising after companies like General Motors, Cars.com and Sherwin Williams pulled their support for the football team, while forfeiting another $700,000 in licensing royalties from merchandise sales. Furthermore, This month, Penn State will shell out $3.25 million to the Big Ten Conference to be donated to children’s charities as part of the first installment of a four-year, $13 million penalty, according to Scott Chipman, the Conference’s Assistant Commissioner.
Now, six months removed from Sandusky’s trial, Penn State is finally starting its uphill battle towards financial recovery. After pulling its ads in late 2011 “out of respect for those involved,” Cars.com returned to football telecasts last season and has announced plans of staying on for 2013-2014. There is also hope of potential sponsorships with Chevy and State Farm, although no deals have been finalized.
The shamed Penn State brand is also showing signs of recovery. According to Marketing Arm, Penn State ranked in the top five most-trusted NCAA properties in June 2011. By January 2012, the university had fallen to last place among 104 nationally measured schools. It bounced back to the mid-60s in 2012, now ranking among well-respected schools like Stanford, Michigan and Harvard.
Despite all of this, Cynthia Hall, Penn State’s acting Chief Marketing and Communications Officer, said that the university did not increase its overall marketing budget since the scandal occurred.
(This is the first installment in a series of posts addressing the future of the NCAA. There are so many facets to this it wouldn’t do the topic justice to cover it all in one post. We’ll look at the idea of super-conferences and/or the complete separation of the BCS schools in a future post, as well as the impact of ongoing and possible legal troubles. Today, however, the topic is enforcement.)
The NCAA has problems, particularly when it comes to the enforcement of its rules. The problems are now so deep that John Infante in his Bylaw Blog has floated the idea of a federal government takeover of the enforcement program. Whether it be USC, Ohio State or Miami, recent investigations have been sloppy and endless, with unsatisfying results.
The crux of the issue is the NCAA has an inherent problem with its investigation and enforcement procedures, in that it does not have the same discovery tools at its disposal that an attorney would in preparing for a trial. Specifically, the NCAA does not possess the power to subpoena witnesses to testify, nor can it compel the production of documents. Worse, whatever testimony and documentation it does get doesn’t come under oath (with penalty of perjury if it’s untrue), lessening its value.
It must be unbelievably frustrating for the NCAA’s enforcement staff. Step out of athletics for a moment and imagine a typical legal situation: a guy runs a stop sign and slams into your car. In the legal system you would have the ability to compel witness testimony (under oath) both in depositions and at trial, as well as compel the production of any and all documents relevant to your case (like for example his expired drivers license!). In the NCAA system, however, you can’t compel much of anything. You’re stuck looking for people willing to talk to you and for documents people are willing to share with you. All of a sudden what seemed like an open and shut case (“he ran a stop sign and slammed into my car”) becomes a lot more challenging, and takes a whole lot longer. It was these frustrations that apparently led NCAA investigators to find a (potentially unethical) way around these cumbersome limitations in the Miami case. Perhaps more telling, an NCAA investigator defending the tactics to the Sun Sentinel raises the concern that this wasn’t one individual going rogue but rather manifestations of a much larger cultural issue.
So how can we improve the rules investigation and enforcement process? It’s true that if the federal government took over it would have all the discovery tools of the legal system and we’d avoid some of these issues. What comes with those advantages though are several major disadvantages, two of which stand out. First, as Mr. Infante noted, politics is injected into the process – never a good thing. And don’t think for a second our senators and congressmen are above getting involved in this. We saw several key political figures weigh in on conference realignment, and now the Pennsylvania governor and other legislators are trying to bully the NCAA on the Penn State case. Second, timeliness – you thought the NCAA was slow? How about the federal government. The Office of Civil Rights took 14 years investigating a Title IX complaint into USC’s rowing facilities. 14 years! (For more on this check out the Chronicle of Higher Education and the Title IX Blog.) So there’s definitely a risk that with the federal government you’d be replacing bad with worse.
I do, however, think there is real merit to the idea of outsourcing the enforcement process to an outside group. It may not have subpoena power, but at least it can operate objectively and without the natural conflicts that exist when you’re policing your own membership (I think this is something that should be looked at with individual campuses as well – outsourcing the investigation / enforcement component of the compliance function to avoid conflicts within the department). I’d also be interested in exploring the possibility of placing language in employment contracts for coaches and staff, and financial aid agreements for student-athletes, which imposes a penalty for not cooperating with investigations for some limited amount of time after they leave the institution. This could certainly be financial or for student-athletes it could be something like putting a hold on transcripts. For non-university people of interest, you could impose penalties similar to what the NCAA currently does for “boosters” found to have participated in violations: no involvement with the university’s athletic program (e.g. can’t donate, can’t sponsor) for some period of time. Further steps could include bringing the professional sport leagues into the process so that players and coaches can’t avoid cooperating by going to the next level.
The NCAA’s investigation and enforcement process is certainly broken; it will be interesting to see what, if anything, is done in the coming months and years to fix it. In the meantime, at least the NCAA can say it doesn’t take 14 years to complete an investigation.
Follow Daniel on Twitter: @DanielHare
What: New NCAA Enforcement Program–Created by a 13-member group of presidents, athletic directors, commissioners, and others in the collegiate athletic community
When: Effective August 1, 2013
Who: Affects accountability of Head Coaches in the NCAA
Where: NCAA Campuses across the nation
- To increase accountability of coaching staffs to uphold integrity of collegiate model of athletics in wake of some of the worst scandals in NCAA history
- To provide a stronger deterrent for individuals who believe that the benefits and advantages of violating NCAA regulations outweigh the severity of punishment
- To better differentiate between who was actually responsible for violations by making coaches bring the penalties they incurred individually to a new school if they decide to change jobs
|Old System||New System||Why the Change?|
|Levels of Violation||2 (Major and Secondary)||4 (Ranging from severe breaches of conduct to incidental infractions)||Makes the Violation Code Less Rigid|
|Division I Committee Members||10||Up to 24||Allows less severe cases to be dealt with in a more timely manner by creating sub-groups|
|Hearings for Level I Cases by Committee on Infractions||5 times annually||10||To deal with severe cases more efficiently and effectively|
|Basis of Penalties for Head Coaches||Did Head Coach Know of Violations or Have “Presumption of Knowledge?”||Presumed responsibility, unless proven otherwise||To ensure that head coaches provide ample materials informing assistant coaches on how to properly act|
BY: LAURA STRAUB
University of Miami fans might be content with the team’s 4-4 start this season, but problems off the field, in particular scandals within the booster program in the past two years, have the potential to plague the success of the program. As with most private universities, Miami’s sports programs are supported through financial support from alumni, professional players, professional businesses and fans, but this system of funding was rocked in the wake of the Nevin Shapiro scandal.
The scandal, which broke during 2010 and 2011, came in the form of a Yahoo Sports Report. The report, complied and written by Charles Robinson implicated over 70 current and former Hurricanes players and coaches for numerous NCAA violations including illegal recruitment tactics such as prostitutes, strip clubs and expensive dinners.
The epicenter of the scandal fell on former Miami University booster Nevin Shapiro and his Ponzi scheme. Through his Ponzi scam, he swindled investors out of over $900 million. Shapiro is now imprisoned and out of the picture; however, this situation has left many questioning whether Miami University will still be able to raise as much money for their athletic programs as they had prior to the scandal.
The University of Miami booster program, The Hurricane Club, has rallied in the face of this scandal and has not only surpassed the 2011 membership mark, but has reached its membership goal of 5,500. The Hurricane Club is celebrating its 40th anniversary with the additional goals of raising scholarship support to $10.1 million and upping participation in their 40/40 program to 40 percent.
Membership in the Hurricane Club can be attained through the purchase of priority seating for either the University of Miami football or basketball games or by an outright annual donation. The annual donation can be made at six different levels with dollar amounts ranging from $40 to $30,000. Annual donations come with an assortment of perks, including lapel pins and car decals, priority to purchase tickets for rivalry and bowl games, and priority seating.
Although Shaprio is currently in prison over his unethical involvement with Hurricane Club funds, the program has had a successful year in reaching their funding goals, evidently showing the significant impact a winning record has in terms of fundraising.
However, attendance at Hurricane’s home football games does not seem to compliment the team’s nor the booster program’s recent success. According to CBS Sports, attendance at the Hurricane’s home opener was 39,345 fans. Yet, a picture taken by Tim Reynolds of the Associated Press from the press box in the second quarter shows an unsettling ratio of empty orange seats to excited fans.
It seems only logical that the success of an athletic program could impact fundraising efforts. This money would go towards more program improvements. Nevertheless, the question of whether or not the fans are overlooking the success of the team because they are disenchanted by the Nevin Shapiro scandal remains to be answered.
Research by BusinessofCollegeSports.com Staff
A five-year snapshot of Penn State’s athletic department finances per filings with the Department of Education and IRS Form 990s.
It’s important to note that Department of Education filings do not always include all expenses. The 2010-2011 numbers include the information provided by Penn State regarding expenses not reported. Those notes are not available for previous years but the situation was likely similar in previous years.
Net Revenue: $53,228,446
Net Revenue: $31,619,687
*Note to Penn State’s report says: “As is referenced in the Caveat box in the Total Expenses section, Grand Total Expenses does not include $19,580,022 of debt service expense and $14,980,216 spent during the year on capital expenditures. Subsequent to addressing our debt service obligation, any remaining excess revenue is/will be used in funding current/future capital projects.”
Net Revenue: $50,427,645
Net Revenue: $26,354,087
Big Ten distribution: $20,039,504
Net Revenue: $42,635,760
Net Revenue: $19,478,286
Big Ten distribution: $19,172,047
Net Revenue: $37,228,333
Net Revenue: $12,294,879
Big Ten distribution: $18,785,520
Net Revenue: $29,404,224
Net Revenue: $4,353,456
Big Ten distribution: $14,010,190
Yesterday, the Washington City Paper reported that Howard University, a Division I school which competes in the Mid-Eastern Athletic Conference, “. . . suspended all of its intercollegiate athletics teams for what appears to be a violation of the NCAA rules.”
The magnitude of this announcement surprised many, as the suspension of an entire athletic program seemed drastic. When it was announced that the entire athletics program had been suspended, one Division I compliance official who spoke to BusinessofCollegeSports.com on the condition of anonymity said, “I would speculate that the potential problems are department-wide and not necessarily limited to specific teams.” This person further explained that, “Schools are supposed to police themselves and hold out student-athletes who are believed to have been involved with NCAA violations.”
Given this, I contacted Howard’s communications Director, Kerry-Ann Hamilton. Hamilton responded as follows:
“Howard University is conducting an internal investigation of possible NCAA rules-violations. As a result of this process, the University temporarily withheld a number of student-athletes from competition as a self-imposed action. Most teams will compete as scheduled. We are working diligently to fully resolve this matter as quickly as a possible. In order to protect the integrity of this review, we are unable to share additional details at this time.”
Thus, contrary to the Washington City Paper’s initial report, Howard did not suspend its entire athletics program. Rather, it appears that Howard’s actions in this matter run the typical route of NCAA compliance, which requires internal investigations and self-policing.
Later yesterday afternoon, the Washington City Paper reported that a bowling team member said that the investigation was the result of textbook vouchers given to student-athletes. Given that Howard is unable to share additional details, this has not been confirmed by BusinessofCollegeSports.com.
NCAA Bylaw 15.2.3 provides, “A member institution may provide a student-athlete financial aid that covers the actual cost of required course-related books.” Per NCAA Bylaw 126.96.36.199, “There is no dollar limit for books a student-athlete may receive, provided each book is required for a course in which the student-athlete is enrolled. The institution may provide the student-athlete with cash to purchase books, as long as the amount of cash provided is equal to the actual cost of the books purchased.”
Thus, a potential NCAA violation may arise, if a student-athlete who is given a voucher to purchase books for classes he or she enrolls in, drops one of the classes for which he or she obtained a book using that voucher and then returns the book and holds onto the cash received.
If book vouchers are given to every student-athlete, this is a situation which could potentially cause a large majority of student-athletes to be in violation of the NCAA bylaws. Hence, this may provide some insight as to why it was initially reported that Howard had suspended its entire athletics department.
Ultimately, it is to be seen what the investigation unearths. If the investigation was the result of student-athletes obtaining money from selling books, expect there to be large public outcry against the NCAA, and also further pushes for student-athletes to receive a higher cost of living allowance.
Earlier this week, I explained the history of the death penalty in collegiate athletics and why Miami is unlikely to receive it. Today, I want to show you the financial implications of the death penalty if Miami were to receive it. I also want to suggest an alternative solution that inflicts severe punishment without devastating the program long-term in the way the death penalty decimated the SMU football program.
University of Miami is a private school and thus not subject to open records requests. To look at the financial impact of the death penalty on the football program, I’ve chosen to use fellow conference member Georgia Tech’s football program as an example. Here’s how the two schools compare financially in football when you look at the data each provided to the US Department of Education for the 2009-2010 school year:
Georgia Tech Football
Overall athletic department revenue and expenses are similar at the two schools as well, with Miami bringing in a total of $56 million and spending $51 million and Georgia Tech at $47 million on both accounts. Miami has 417 athletes and Georgia Tech 387. The cost of grants-in-aid is much higher at Miami because it is a private institution, but that doesn’t play into today’s comparison. Also, Miami leases Sun Life Stadium, whereas Georgia Tech owns a stadium on campus. Although Georgia Tech’s financial situation is not identical to Miami, it is close enough to give an idea of how the death penalty would impact the program.
Here’s a brief list of revenues that would be lost (at Georgia Tech) if the death penalty was instituted for one year, based on the Georgia Tech Athletic Department’s audited financial statement for fiscal year 2010: Read the rest of this entry
Since the Yahoo! report detailing improper benefits allegedly given to a number of University of Miami football and one basketball player, I’ve received a lot of questions about whether the NCAA would levy the death penalty against the football program. This week, NCAA President Mark Emmert made it clear that he’s willing to use the death penalty if the circumstances warrant the harsh penalty.
The death penalty is when the NCAA bans a school from participating in a sport for one or more years. The death penalty is mainly reserved for repeat violators who have a second major violation within five years of being on probation in the same or another sport. However, the NCAA has the power to levy the death penalty in instances where there is no repeat violation if the violation at issue is serious enough in nature, such as when the NCAA determines a program is a “willful violator.” The penalty can bar competition in the sport for one or two seasons.
The NCAA’s silver bullet has only been used five times, only three of which were in Division I: Kentucky (basketball; 1952-53 season), Southwestern Louisiana, now University of Louisiana at Lafayette (basketball; 1973-74 and 1974-75 seasons), SMU (football; 1987 and 1988 seasons), Morehouse (men’s soccer; 2004 and 2005 seasons), and MacMurray (men’s tennis; 2005-06 and 2006-07 seasons).
Kentucky’s death penalty arose from the arrest of three former Kentucky basketball players who were arrested for shaving points during the 1948-49 season. Another player, who was still enrolled and playing at Kentucky, was accused and investigated and eventually suspended from the University. In the end, the NCAA placed all sports at Kentucky on probation and banned each sport from post-season competition for the 1952-53 season. The NCAA then pressured all other schools into not scheduling Kentucky, effectively cancelling the season for every sport.
Southwestern Louisiana’s basketball program was found to have a number of different violations following the 1972-73 season, which ranged from academic fraud to improper benefits to recruiting violations. Among the most serious violations were instances of academic fraud, including five players who were allowed to compete despite having GPAs below the NCAA’s requirement. In one case, an assistant coach forged the principal’s signature on a recruit’s high school transcript. The NCAA banned the basketball program from play for two seasons in 1973-74 and 1974-75.
The most famous death penalty case was when SMU lost two football seasons in the late 80s. Read the rest of this entry