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by Vince Nicastro*

In a surprise announcement last week, the University of Louisville announced they are self-imposing a postseason ban on their basketball program for 2016, as a result of preliminary findings in the on-going investigation of the allegations levied against them last fall.  Aside from the debate regarding the appropriateness of such bans and their impact on individuals who were not involved in the activity (another topic for another day), let’s look at where things seem to be heading for Louisville.

First, give credit to the leadership at Louisville for acting swiftly and forcefully.  A post-season ban is one of the more severe sanctions that can be handed down. The leadership there could have easily been tempted to delay any action until after the basketball season – especially considering that the Cardinals were poised to have made a long run in the NCAA Tournament.

Obviously, Louisville’s motivation to act now was impacted by the information they were presented as a result of their preliminary investigation.  Generally, what occurs in these processes is that the NCAA and the school work in tandem on discovery.   After conducting various interviews, reviewing documents, and evaluating other facts surrounding the allegations, the two parties will meet to discuss their preliminary findings. This is apparently the stage they are in, and it is obvious that both parties likely agree that there are some significant NCAA rules violations.

The next step is a formal notice of allegations provided by the NCAA enforcement staff to the institution which details the alleged Level 1 and 2 violations in writing.   The institution would then have 90 days to file a response.  In their response, the institution would typically attempt to correct any factual errors in the notice, search for any procedural issues that could help their case, and/or provide some type of argument to mitigate their potential exposure with regard to penalties.  The self-imposed sanctions are included in the response and are usually viewed as a positive, proactive effort by the school to help demonstrate their commitment to rules compliance, as well as to possibly reduce any additional sanctions being handed down by the NCAA and/or the Committee on Infractions (“COI”).

Louisville can choose two paths as it nears the finish of the process (which could still take many months to complete).   Of course, an appearance before the COI (a hearing) is generally the path chosen most often, as schools tend to want to exhaust all of their procedural options.  Even if schools are skeptical that a hearing will help in terms of reducing sanctions, they often feel compelled to request one in order to placate some constituents who insist on having their “day in court.”

The other course of action, used less frequently, is the summary disposition route.  This is an option which can be used when the facts and sanctions are agreed upon by the school and the NCAA.  No hearing is required and both parties move on quickly – and less expensively.

Keep in mind that it is also not uncommon for additional rules issues, unrelated to the original allegation (or allegations), to be uncovered in the course of an inquiry of this nature.  If this is the case, these additional violations would be simply rolled into the case, so there is the potential for this to go beyond the allegations that were made public in the fall.

The strategy of self-imposing penalties in order to mitigate additional sanctions being handed down by the NCAA or the COI is important.  It sends a message to the COI that the school took their institutional control responsibility seriously.  However, in my observations, there are almost always additional sanctions that are included above and beyond the self-imposed variety.   It will be interesting to see if things like reduced recruiting opportunities and scholarship reductions are part of the final disposition of this particular case.

Finally, head coach Rick Pitino could certainly be vulnerable from a rules perspective here.  The principle of head coach responsibility has been applied more assertively over the past few years.  Two high profile examples, Jim Boeheim and Larry Brown, both recently served 9 game suspensions under the application of this rule.  Pitino, although denying any knowledge of the impermissible recruiting practices, could still face punishment as a result of the presumption that he is responsible for the actions of those reporting to him.


*Vince Nicastro is the former Athletic Director for Villanova University, and currently serves as Associate Director for the Jeffrey S. Moorad Center for the Study of Sports Law.









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