- With charges of 15 Level I violations and a lack of instituational control, Ole Miss and coach Hugh Freeze face a scandal of massive proportions. Determining their penalities, however, involves a lot of nuance, NCAA experts say.
As the NCAA’s case against Ole Miss slogged on amid speculation, conjecture and endless rumors, coach Hugh Freeze often used the pet phrase of “the narrative.” He disagreed with “the narrative” that Ole Miss bought players in recruiting. He pointed out that SEC rivals were jealous that Ole Miss rocked “the narrative” in which they should settle for being a second-tier SEC school.
A new narrative, with more clarity and direction, emerged Wednesday night with a flurry of news that will indelibly alter the future of Ole Miss football. The university announced in an awkward video that it faces a charge of lack of institutional control, a total of 15 Level I violations from the NCAA and it self-imposed a postseason ban in 2017.
After years of defiant downplaying, spinning and denying the magnitude of the NCAA’s investigation into the football program, everything changed for Ole Miss after it received the revised Notice of Allegations from the NCAA earlier this week. The new narrative is that Ole Miss football is in big trouble, and its ability to navigate the muddled NCAA investigative process will determine the extent of that trouble.
The university had already self-imposed 11 scholarships in May, among other penalties, as a pre-emptive measure. But the news of both the lack of institutional control charge against the school and the bowl ban puts the immediate future of the Rebels football program and Freeze’s career in jeopardy.
What happens from here? In a case defined by wild plot twists so far—a gas mask bong and leaked text messages, for starters—the rest of what will determine Ole Miss’s future is actually quite mundane. The university must continue working through the NCAA legal process, which could take another year.
There are myriad factors at play here, which make the results unpredictable. The two biggest issues facing Ole Miss are how successful the university is in defending itself against the lack of institutional control charge and how successful Freeze is in proving he’s not responsible for what happened. The school is standing by Freeze for now.
SI spoke with administrators, lawyers and people familiar with the NCAA process to figure out what happens next to the Rebels.
What does Wednesday’s news mean?
Tom Yeager is the former commissioner of the Colonial Athletic Conference and former chair of the NCAA’s Committee on Infractions. He had a clear interpretation of Wednesday’s announcement from Ole Miss. “That’s a significant statement from the university,” Yeager said in a phone interview. “I’m sure there’s always a lot of these places where the fringe element have fans who want to fight like hell. But the truth of the matter is that you better have an educated guess on what the consequences are going to be.”
Tyrone Thomas of Mintz Levin in Washington D.C. is a lawyer who works in NCAA cases. He’s not working the Ole Miss case but has tracked it and observed this from the outside. “Something as heavy as a bowl penalty for a year, that’s not something that’s taken lightly,” he said. “There’s clearly serious evidence the university didn’t discover [initially]. You’re trying to get ahead of what you hope the NCAA may do.”
What will the NCAA ultimately do?
This is nearly impossible to answer, as Ole Miss still needs to formally respond to the amended notice and appear before the Committee on Infractions. Of the 15 Level I violations, the most serious kind in the NCAA lexicon, seven of them are new.
Ole Miss is fighting a number of the charges, including lack of institutional control and Freeze’s failure to monitor. They are fighting some details of a serious charge that two boosters provided between $13,000 and $15,600 in illegal inducements and that the payments were facilitated by a former staff member. Their success in fighting these will ultimately determine the severity of the punishment. “Taking a postseason ban is a sign of a pretty serious set of facts,” said Gene Marsh, a professor of law at the University of Alabama and former chairman of NCAA Committee on Infractions. “The next part is reading tea leaves. Might it be worse? That’s complete conjecture. Unless you are Carnac [The Magnificent] from Johnny Carson, then all that is dramatic speculation.”
What further punishment could Ole Miss face?
Without delving too much into dramatic speculation, it’s safe to say that the one-year postseason ban and 11 scholarships are a bare minimum of what Ole Miss expected to get from the NCAA. “I don’t think I ever remember a case in which the COI actually accepted everything the school has done [and didn’t add anything],” said a veteran Committee on Infractions member who asked to remain anonymous.
Universities are extremely calculated and conservative in how they come up with self-imposed punishments. In other words, they’ve spent too many billable hours to punish themselves too severely.
“Never,” said Thomas, about being too strict on self-imposing. “Almost in capital letters. Never, ever.”
So there’ll be more, inevitably.
The school also forfeited its SEC football postseason revenue next year, expected to be $7.8 million. With seven additional Level I violations, there will be more than the initial 11 reduced scholarships self-imposed in May.
The biggest matters are simple. How many more scholarships? Will there be another year of a postseason ban? How many years will Ole Miss be on probation? What will happen to Freeze?
There’s too many variables to know for certain, as 21 total allegations have to be litigated. Generally, it’s safe to assume more punishments are coming. As one former NCAA investigator said: “If a majority of these charges are found by the committee, my guess is a one-year postseason ban won’t be enough. Chances are, Ole Miss is going to get another one.”
Will Hugh Freeze survive?
The most pragmatic way to characterize this would be with skepticism. None of the experts interviewed could recall a prominent football coach facing potential punishment in the new era of head coach responsibility. This makes the failure to monitor charge against Freeze a major football test case for NCAA Division I bylaw 18.104.22.168: “A head coach is presumed to be responsible for the actions of all the staff members who report, directly or indirectly, to the head coach. The head coach will be held accountable for violations in the program unless he or she can rebut the presumption of responsibility.”
Ole Miss and Freeze plan to vigorously rebut that presumption. The university’s initial posturing from the video it released shows it’s standing by Freeze and will fight his responsibility in this case. But the school’s tenor has changed dramatically over the course of the investigation. Before Wednesday, Ole Miss officials went through great lengths to spin how many of the allegations happened before Freeze’s tenure or in other sports. The spin was viewed as technically true but generally disingenuous.
Everything changes with the new wave of violations. It’s safe to say that Freeze is fighting for his career. At the least, he faces a potential suspension, much like the ones served by Syracuse’s Jim Boeheim, UConn’s Jim Calhoun and SMU’s Larry Brown. “This is an interesting test case under the new rules,” Thomas said. “Football has the most scholarships and the most staff. It does raise the question at some point of how close are we going to hold the head football coach to things that happened down the chain.”
The entire college coaching fraternity viewed Ole Miss’s anomalous recruiting success with skepticism. And there’s a strong curiosity in the coaching world of how the NCAA will handle Freeze. “If it’s a willful and intentional violation of rules, he should not be allowed to coach, “ said a Power 5 coach. “The rule says that coaches can’t coach [when NCAA issues occur]. We’re going to find out about the whole head coach control thing.”
If Freeze survives the NCAA process and potential suspension, he still has to win games at a watered-down program. Ole Miss went 5–7 last year and then lured a recruiting class so poor that Freeze labeled it “a penalty to be under the cloud we're under.” It’s hard to imagine Freeze surviving the fickle NCAA process and the inevitable dip that Ole Miss is expected to take on the field.
What’s the timeline?
The only consistent thing about NCAA cases is that they unfold slowly. Ole Miss obviously wants this to end as quickly as possible. The school tried to spin the news this week as the end of the investigation.
The reality here is that the hearing before the Committee on Infractions won’t likely happen until the fall. Then there’s an appeals process. And considering the severity of the charges and how much Ole Miss is contesting, it’s hard to imagine things not being appealed. “This is going to be resolved in 2018 if it goes the distance,” Thomas said. “We’re looking at 2018. It’s a matter of when.”
What do 15 Level I violations mean?
No one SI spoke to for this story downplayed the 15 Level I violations. A former committee member, who asked to remain anonymous, has seriously tracked NCAA cases for more than 15 years and couldn’t recall a case with that many. (Violations used to be classified as major and secondary, which makes comparisons imperfect. Now they are broken up from Level I to Level IV. Level I is the most serious). “In terms of sheer numbers, I can’t recall anything that matches this,” the former committee member said. “I just don’t recall anything that’s more serious.”
How will the penalties ultimately be determined?
This is where things get confusing, even to the people intimately involved in the process. In 2013, the NCAA introduced a new penalty matrix. (It did so with the not-so-subtle headline of, “Violator Beware.”) The idea was to make penalties more consistent, something like federal sentencing guidelines. (If you commit armed robbery, there’s a minimum prison sentence. If you commit a Level I NCAA violation, there’s a consistent punishment).
It’s not that simple, though, as the allegations the Committee finds valid will get classified as aggravated, standard or mitigated. And that nuance ultimately determines the punishment, which leaves a lot of room for variables. Not all of the alleged violations occurred after 2013, so the entire case may not even flow through the matrix.
A handful of cases have gone through the new matrix, but all the people interviewed this week didn’t feel comfortable using those cases to predict what could happen at Ole Miss. “The matrix is kind of baffling, and I understand penalties better than most people,” said the former committee member who asked to remain anonymous. “We have seen a few cases all the way through. We don’t have enough of a body of case law to make any statements or accurate predictions.”
Take a peek at the chart. It’s easy to see how with 15 Level I violations, fans of SEC rivals could project years and years of postseason bans. Alternatively, Rebels supporters could be optimistic about mitigating many of the charges and receiving little more punishment. No one really knows.
The only safe assumption is that this matrix, which the NCAA unveiled in 2013, is about to have its first heavy dose of public scrutiny. “Even with a matrix, you have undecided major issues that have yet to be litigated and decided,” Marsh said. “You still have human beings involved [in the Committee on Infractions].”
What is the most important issue here?
The charge of lack of institutional control is the scariest one for Ole Miss. There are so many variables to determine that the experts didn’t venture a guess on predicting what could happen. One point a few brought up is that the totality of everything alleged shouldn’t be overlooked. The scholarship losses, bowl bans and Freeze’s future will occupy a lot of the headlines. But there are some serious issues for the Committee On Infractions to sort through.
One factor in this case rarely talked about is a serious academic fraud component, something the Committee historically takes seriously. These allegations trace back to former coach Houston Nutt and involve ACT fraud orchestrated by a former Ole Miss assistant and staff member. “This fraud was an isolated occurrence planned, directed, and/or carried out by two rogue staff members long-since separated from the University,” Ole Miss said in its response to the initial allegations.
When determining things like institutional control, a significant academic charge should not be downplayed. Despite some of Ole Miss’s initial spin on this story rooted in placing the most serious violations under Nutt, it doesn’t really matter when the infractions happened. That spin is now moot with the revised letter, but the seriousness of the academic piece could loom large.