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Appeals committee upholds Florida State penalties

Specifically, the Committee on Infractions determined that the university committed a major rules violation when it failed to assure NCAA rules compliance within its football program by not monitoring adequately the involvement of sports agents with student-athletes and by failing to take sufficient actions to investigate possible violations of NCAA amateurism rules.

The penalties included one year of probation, beginning February 3, 1996, and a requirement of recertification of current athletics policies and practices.

The Committee on Infractions issued its report March 19, 1996. Florida State filed a notice of appeal March 29, 1996, and the appeal itself May 2, 1996. The Infractions Appeals Committee heard the case June 22, 1996.

Florida State raised three issues in its appeal:

* The Committee on Infractions' designation of a "major violation" for "failure to monitor" is without precedent, is not provided for in the contract with member institutions, fails to recognize the lack of any Association definition of adequate monitoring and is incompatible with the committee's own description of the institution's programs.

* The Committee on Infractions' process was flawed by a procedural error that denied the university a fair hearing.

* The evidence does not support the Committee on Infractions' departure from the conclusions of the NCAA staff.

The first issue is related to the role and authority of the Committee on Infractions and the NCAA enforcement staff in determining whether a violation is "major" or "secondary." The enforcement staff recommended a finding of one secondary violation. The Infractions Appeals Committee found that the Committee on Infractions had explicit authority under the bylaws to disapprove that recommendation and make its own determination.

The Infractions Appeals Committee also noted that a finding of a violation of the section of the NCAA Constitution requiring adequate monitoring and thorough investigation of possible NCAA rules violations was not without precedent. Thirteen major infractions cases since September 1, 1985, have included a statement of violation of this particular rule.

The Infractions Appeals Committee noted that while the Committee on Infractions recently had provided to the member institutions a set of principles concerning the NCAA's rule on institutional control, most Association rules have no clarification beyond the NCAA Manual and rules interpretations. Therefore, the Committee on Infractions' finding of a major violation in this case was appropriate despite the alleged "lack of any Association definition of adequate monitoring."

Florida State cited the Committee on Infractions' description of the university's programs, asserting that these favorable descriptions precluded a finding of failure to monitor. The Infractions Appeals Committee pointed out that the Committee on Infractions noted that Florida State had adequate policies and procedures in effect to ensure compliance with NCAA rules, but those policies and procedures were not being adequately monitored or enforced.

On the second issue, the university argued that a procedural error denied it a fair hearing. The alleged error involved the appearance at the hearing of a former student who testified before the committee.

Florida State argued that the appearance was unprecedented and a violation of NCAA rules. However, the Infractions Appeals Committee noted that on at least four occasions, the Committee on Infractions had permitted testimony from individuals not directly affiliated with an NCAA institution. It also noted that the Committee on Infractions, under the bylaws, is not restricted in its authority to permit the attendance of additional witnesses.

The institution alleged that notification of the appearance of the former student was inadequate. The Infractions Appeals Committee examined the unusual chronology of the hearing, which occurred because Florida State had requested an expedited hearing. It determined that under the circumstances, the notice provided the university was "as adequate as it could be."

Florida State also expressed concern that it did not have the opportunity to cross-examine or summon rebuttal witnesses. The Infractions Appeals Committee pointed out that the Committee on Infractions' hearings are not formal judicial trials. It noted that the institution's representatives could have questioned the witness or asked that the committee question him regarding any matter, but they did neither of these things.

On a more general basis, Florida State did not raise before the Committee on Infractions any objection regarding the appearance or testimony of the witness. At no time before or during the hearing did the university object to the committee's decision to permit the witness to appeal and testify, ask the committee to reconsider the decision or raise any of the matters asserted in support of this argument on appeal. The Infractions Appeals Committee concurred with the Committee on Infractions that because the institution did not object before or during the hearing, it cannot raise the issue for the first time on appeal.

On the third issue, Florida State asserted that the evidence did not support the departure of the Committee on Infractions from the conclusions of the enforcement staff. The Infractions Appeals Committee, however, found that the facts developed by the enforcement staff and found by the Committee on Infractions in this case were sufficient to support the committee's finding of a major violation.

Florida State asserted in its notice of appeal that the repeat-violator penalty was excessive or inappropriate but did not raise it in the appeal itself. The Committee on Infractions took the position that the penalty issue had been waived by the institution. The Infractions Appeals Committee stated that the Committee on Infractions' position was not without merit. However, the Infractions Appeals Committee noted that the five-year repeat-violator penalty is automatic under NCAA rules and is not a penalty imposed by the Committee on Infractions.

The members of the Infractions Appeals Committee who heard this case were Marshall M. Criser, attorney with Mahoney, Adams and Criser; Katherine E. Noble, assistant commissioner, Big Sky Conference; David Price, associate commissioner, Pacific-10 Conference; Michael L. Slive (chair), commissioner, Conference USA; and John W. Stoepler, University of Toledo.

The full report of the Infractions Appeals Committee will be published in the November 4 issue of The NCAA Register.