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Louisville's sanctions bear close scrutiny at Ole Miss, North Carolina

Penalties being levied are becoming more consistent and predictable, which should worry schools awaiting adjudication.

The upcoming school year portends to be one of the most significant in recent history for the NCAA’s enforcement process. Three blockbuster cases loom over the collegiate sports landscape—Louisville, Ole Miss and North Carolina—that offer critical tests for the NCAA’s enforcement group and Committee on Infractions.

The NCAA overhauled of its enforcement staff amid persistent blunders in the University of Miami case, which concluded in 2013. NCAA enforcement has attempted to refurbish its reputation since that time, and these three cases should shine significant light onto how NCAA enforcement and the NCAA Committee on Infractions plan on handling business in future years.

The Committee on Infractions announced significant penalties against the University of Louisville on Thursday. Louisville will have to vacate its 2013 national title if it does not win an appeal, which would be the first men’s basketball title vacated in NCAA history. The penalties also included a five-game ACC suspension for coach Rick Pitino, the latest Hall of Fame coach to endure a significant punishment.

Louisville will appeal Pitino’s suspension and the vacated title, developments which will be followed breathlessly in the upcoming months. As the NCAA prepares to hear the UNC academic fraud case later this summer and the Ole Miss football extra benefits case sometime in 2018, the caliber and pattern of punishments in the Louisville should not be considered insignificant.

So let’s start here with a few disclaimers. It’s always dangerous to compare NCAA cases. This is because each case is a snowflake, and the NCAA enforcement process has consistently led to punishments that are wildly inconsistent. An escort scandal, football extra benefits case and nearly two-decade-long academic ruse certainly vary wildly.

NCAA case has Louisville making wrong kind of history—and likely vacating a national title

But in speaking to legal experts familiar with the NCAA infractions process on Thursday in the wake of the Louisville ruling, some notable patterns have recently emerged that could reverberate through the Ole Miss and UNC case. And the main theme they expressed is that while cases may wildly vary, NCAA punishments are becoming more consistent and predictable.

“The penalty structure now is far more fixed and there’s far less windage in it,” said Gene Marsh, a former NCAA Committee on Infractions chair. “The significant flexibility that used to exist no longer exists.”

Let’s start with Pitino, who was suspended for five ACC games for failure to monitor. In 2012, the NCAA began a movement to make head coaches more responsible for the actions in their program, no matter their involvement. Since that time, Syracuse’s Jim Boeheim and SMU’s Larry Brown received and served nine-game suspensions for their responsibility in their programs’s respective NCAA scandals.

“I think a trend has been set,” said Tom Yeager, the former commissioner of the Colonial Athletic Association and former chair of the Committee on Infractions. “I think a message has been sent. The old sacred cows are extinct. Louisville is a blue blood program, and Pitino is a Hall of Fame coach.”

Pitino passionately denied any knowledge of the strippers, sex acts and other tawdry inducements to recruits. The COI deemed that Pitino’s purported lack of knowledge didn’t matter. They held him accountable anyway. (This should cause some discomfort for Ole Miss coach Hugh Freeze, who the university went through great lengths to support in its recent response to the NCAA Notice of Allegations. With 15 Level 1 violations alleged, it’s appearing more like only a Houdini act will keep Freeze from some type of suspension).

Yeager sat for years on the committee and said he recalls cases where assistant coaches were “falling on the sword” for their head coaches. That fall-guy “rogue assistant” can’t take all the blame anymore. With the glory, salary and attention of a head coach clearly now comes responsibility.

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“You can pretty much say there’s going to be far more automatic suspension of head coaches,” said Marsh, a lawyer for Jackson Lewis in Birmingham. “You better get used to it. That’s the now and that’s the future.”

Pitino came off as indignant and lacking some self-awareness in a press conference on Thursday. His lawyer released a statement saying the finding against Pitino “is one of the weakest I’ve ever seen against a head coach.” Pitino called the punishments “over-the-top severe” and added: “Personally I've lost a lot of faith in the NCAA that I've had over the last 35 years.”

The reality is that the NCAA found over a period of three years “instances of adult entertainment and/or prostitution for 15 prospective student-athletes, three enrolled student-athletes, a friend visiting campus with one of the prospects and two nonscholastic basketball coaches.” The NCAA report would make Carrie Bradshaw blush, as it includes the terms “striptease,” “prostitution,” “oral sex,” “condom,” and “escort.” In most professions and at most other schools, virtually anyone in charge when such salacious activities occurred would have lost their jobs.

UNC has mounted a compelling response to NCAA notice of allegations

Tyrone Thomas, a lawyer for Mintz Levin in Washington D.C., said: “I think given the intent of the new penalty structure, the sanctions for Pitino were possibly lower than expected.” 

Louisville and Pitino could well end up losing—in name, anyway—the 2013 national title. (Louisville defeated Michigan in that game, but the Wolverines won’t be named the champion). There’s also 108 regular season games and 15 NCAA tournament victories that could be vacated. Marsh noted that when he served on the committee from 1999 to 2008, there wasn’t as tight a protocol for penalties. That’s changed.

“There’s a whole lot more precision,” Marsh said. “The idea now is that if players play while ineligible, it’s going straight to (vacation) as a default. If it happens to be a championship, that’s what membership voted for. The standard for overturning penalties is abuse of discretion, that’s a difficult standard.”

It’s foggier to project whether we can glean anything significant from this case in terms of North Carolina’s 2005 and 2009 national titles. UNC’s case has so many unprecedented variables from the scope to the unique defense—essentially telling the NCAA to buzz off—that it’s nearly impossible to compare anything. But it’s not insignificant as one blue blood school’s national title banner isn’t considered sacred. UNC’s titles certainly won’t be either.

Marsh warns that the importance of presenting the case before the Committee on Infractions can’t be overstated. He recalls the committee being ready to give Baylor basketball the death penalty before their appearance before the committee. (They ended up ruling that Baylor not play non-conference games in 2005-06 season). “There was a sea change from the start of that day to the end of that day on how people viewed Baylor’s situation,” Marsh said.

Considering how flawed and fumbling the NCAA enforcement process was perceived to be for years, it’s significant that this Louisville case played out with little fanfare about the investigation itself. In the wake of the Miami case’s “shocking” missteps, as they were described by Mark Emmert at the time, the enforcement staff has cobbled itself back under new enforcement vice president Jon Duncan. 

“I think Jon Duncan has pulled things together in a very solid way and got things back,” Yeager said. “The whole coaching world is going to be watching the outcome of a couple of these cases. If the enforcement staff is doing their job and presenting solid cases and the Committee on Infractions is imposing appropriate penalties, then things are working.”

In a big year for the NCAA enforcement process, the group has made an early statement that Hall of Fame coaches and blue blood programs will not be spared. And no one has been watching closer than officials at Ole Miss and North Carolina.