This section could be stated simply: USC had no meaningful appeal. That said, the appeal did provide SC the opportunity to put the NCAA appeal process to the test. Head-scratching ensued.
Before
the ink on the Committee on Infractions ("COI") report had even dried,
the NCAA suffered an appeal setback: it let Paul Dee talk. The COI
Chairman spoke to reporters on the day the NCAA announced the sanctions
against McNair and the university. While the NCAA report was silent on
the standard used to assess the bowl ban and scholarship reductions, Dee
was not.
"Frankly, it was the number of bowl games that the individual participated in."
"The sanctions that were put in place, we believe, most properly respond to the benefits gained by the institution through the notoriety that occurred during these periods of time, which led to enhanced recruiting, which led to their ability to recruit other athletes. And consequently we thought, at least in the area of the scholarship limitations, that that would be an appropriate penalty."
These
standards are remarkable for their complete lack of support in NCAA
bylaws or case precedent. USC seized on this fact in its appeal. Pressed to respond, the COI (according to USC) conceded that Dee's bowl ban statement was not a proper legal standard for use in assessing penalties, but downplayed the statement as an "off the cuff response by one member of the Committee" that "does not represent the standard used by the COI in this case."
However, NCAA bylaws specify that Dee was speaking as chairman on behalf of the COI. Consider NCAA bylaw 32.9.2.2, entitled Public Announcement and Comment at Release:
"The chair or a member of the Committee on Infractions shall make the committee's public announcement related to major infractions when the committee determines that an announcement is warranted in addition to distribution of the written report."
Dee's statement at the press conference was thus not just the unofficial opinion of one man, but rather the committee's public announcement as contemplated by NCAA bylaws.
SC's appeal also contained a thorough analysis of past case precedent:
"By any measure, the penalties imposed on USC are the most severe ever levied against an institution's football program since the so-called SMU "death penalty" case in 1987. Until the Committee's Report in this case, no institution, no matter how egregious its conduct, has ever suffered both a two-year post-season ban and a loss of 30 or more scholarships - even for systematic and intentional violations involving an institution's coaches or staff. Moreover, before this case, the Committee had never reduced the total number of scholarships to 75 for a single year, much less three years."
The university pointed to a number of cases where lesser penalties were given for greater violations involving actual institutional involvement (as contrasted to SC's non-involvement in the Reggie Bush violations). Most notably were the 1996 Florida State University case and the 1995 University of Miami case where, while Dee was athletic director, the Hurricanes were found to have committed some of the most egregious extra benefits violations in NCAA history. USC argued:
"In the Miami case, which also involved violations in multiple sports, the institution was found to have direct culpability in providing more than $630,000 in impermissible benefits over a five-year period (1989-1994) to student-athletes (primarily football). See University of Miami Public Infractions Report (1995), Ex. 5 to Appeal. Unlike USC’s case, Miami’s violations arose, in part, from the direct participation of an athletics staff member who assisted with the completion of $220,000 in fraudulent Pell Grant forms. The institution also provided an additional $412,000 in direct extra benefits to student-athletes, and fifty-five football student-athletes competed while ineligible. In addition, the head football coach and head of compliance failed to report their knowledge of a “pay for play” pool in which student-athletes were paid for big plays. The institution also failed to follow its student-athlete drug testing policy, allowing elite football student-athletes who tested positive for drugs to continue to compete. Although Miami lost 31 initial scholarships over three years (one more than USC’s 30), its total scholarships were only reduced to 80 (as opposed to USC’s 75), and it received only a one-year post-season ban. The penalties imposed against USC cannot be reconciled with those imposed in the Miami case given the extraordinarily egregious misconduct in that case in terms of financial amount, number of student-athletes involved and institutional intent."
USC also pointed out the 1998 Texas Tech case:
"That case involved 76 student-athletes in eight sports, including football, who competed while ineligible. Texas Tech University Public Infractions Report (1998), Exhibit 25. Members of the Texas Tech football coaching staff provided tuition assistance and committed academic fraud by completing significant portions of student-athletes' course work. Finally, a Texas Tech booster provided free bail bonding and legal services to three football student-athletes. The Committee found a total of 42 instances where a football student-athlete competed while ineligible during the university's four bowl appearances in this period. The Committee further found that the football staff provided money to a student-athlete before and after his enrollment and also found an assistant football coach guilty of unethical conduct. In the face of the direct institutional conduct, which caused the violations, a finding absent in USC's case, the Committee imposed a one-year bowl ban and reduced initial scholarships by eight, six and four (a total of 18) over three years with a total cap on scholarships for two years. Again, the Committee has no justification for the disparity between the Texas Tech case and this case."
USC also drew comparisons to the cases of Florida State (1996), Alabama (2002), Kentucky (2002), Michigan (basketball - 2003), and Oklahoma (2007).
Normal appeals take 5 weeks from oral argument to decision. Todd McNair's appeal decision took 5 months and 15 days, and was resolved in 6 pages. USC's appeal decision took 4 months and 4 days, and was resolved in 7 pages. So what took so long? One possibility is that the NCAA waited for the issuance of a task force report which "reminded" member institutions that case precedent was not binding because, among other things, "no two set of facts are exactly the same." The task force report also noted the "limited role" of the Infractions Appellate Committee (the "IAC").
The task force report was published on April 28, 2011. McNair's appeal was denied the next day. USC's appeal was denied a month later. In rejecting USC's precedent-heavy argument, the IAC echoed the task force report, noting:
"While the institution's observation regarding the [1996 Florida State] case may be correct, we also must make clear that the principle of guidance from prior decisions is not an unyielding directive."
But it is hard to imagine what, if not case precedent, can meet an appellate standard of review that was significantly strengthened in 2008. Since 2008, COI penalties will not be overturned on appeal unless the COI abused its discretion. USC Athletic Director Pat Haden recognizes the conundrum:
"If we have to prove an abuse of discretion and there is no standard because you can't use past precedents, how do you prove an abuse of discretion? It's kind of circular. I don't know how you overcome the burden."
The NCAA's disfavor of case precedent has drawn sharp criticism. Sports Illustrated's Andy Staples noted:
"No two robberies are the same. No two Ponzi schemes are the same. No two DUI cases are the same. Yet every day, judges in real courts weigh precedents and try to find the most similar cases so they don't issue a sentence out of step with the sentences handed to those who committed similar crimes. Is it too much to ask that the NCAA give its member institutions the same kind of justice?"
The NCAA's disdain for case precedent was short-lived. As noted by Michael Lev of the Orange County Register, the COI's Boise State report, issued four months later, cited heavily to past cases in support of the penalties imposed on BSU.
Even more contradictory was the NCAA's decision on BSU's appeal. The NCAA appeals committee reversed the scholarship penalty against BSU because it accepted BSU's argument that's the penalty assessed in that case was more severe than eight of ten comparable cases.
So for those keeping score at home:
1. USC penalty more severe than cases involving greater infractions = NCAA says don't look at case precedent.
2. BSU penalty more severe than 8 comparable cases but less severe than 2 comparable cases = NCAA says penalty an abuse of discretion for that reason.