What are Ole Miss’ chances of winning its NCAA appeal?
Published 6:00 am Monday, December 18, 2017
Ole Miss officially started the appeals process in its NCAA infractions case over the weekend, filing a written notice with college sports’ governing body of its intent to appeal the Committee on Infractions’ final ruling.
That ruling came Dec. 1, nearly two years after the school received its original Notice of Allegations, 10 months after it was issued an amended NOA that increased the number of alleged rules violations to 21 and 80 days after the school concluded its hearing with the Committee on Infractions. It included another bowl ban for the 2018 season and four years of probation running concurrent with the current probation period.
The additional postseason ban, which was tacked on to the school’s self-imposed ban for this season, is Ole Miss’ main contention with Chancellor Jeffrey Vitter calling the penalty “excessive” and that it “does not take into account the corrective actions that we have made in personnel, structure, policies and processes to address the issues.”
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So what are Ole Miss’ chances of winning its appeal? David Ridpath, an associate professor of sports administration at Ohio University and a former compliance officer, said that depends on what the school would consider a success.
“It’s pretty hard to come out and say that something found by the Committee on Infractions is not a violation by any stretch,” said Ridpath, who’s also president of the Drake Group, which “defends academic integrity in higher education from the corrosive aspects of commercialized college sports,” according to a mission statement on the group’s official website. “Procedural errors are pretty tough to prove. Most every appeal is trying to get penalties reduced. You’re not going to get the whole case overturned.”
Schools can appeal penalties as well as findings, something Ole Miss plans to do. In addition to the multi-year bowl ban and a limit on unofficial recruiting visits, the school is also fighting the ruling that it lacked institutional control, one of 15 Level-I charges levied against Ole Miss.
Kansas City-based attorney Scott Tompsett, who has more than 20 years of experience representing institutions and coaches in NCAA infractions cases, said the COI’s decision in any case is given deference with high standards needing to be met in order to get a reversal. Making things trickier for Ole Miss is that schools can’t introduce evidence during their argument with the Infractions Appeals Committee that wasn’t part of their COI hearing.
“You’re arguing based only on what the information presented to the Committee on Infractions was, so you don’t get to add new factual information or come up with new facts or new witnesses or anything like that,” said Tompsett, owner of Tompsett Collegiate Sports Law. “You just have to say, ‘Look, here’s what was argued with the Committee on Infractions and they got it wrong.’ And not that it was just a close call. It has to be clearly contrary to the evidence presented for getting a finding reversed or there has to be some procedural error. To get a penalty overturned or reduced, there has to be an abuse of discretion.”
Ole Miss believes the COI did that in assessing another bowl ban, said athletic director Ross Bjork, who called the committee’s decision an “excessive application of the penalty structure” for a Level I-standard case after the school self-imposed a bowl ban for this season. Ole Miss’ other self-imposed penalties included 11 scholarship reductions over a four-year period starting with the 2015-16 academic year (which was increased to 13 total scholarships over that period by the COI), recruiting restrictions for coaches found to have committed violations and three years of probation.
Ridpath, who served as the assistant athletic director for compliance and student services at Marshall University from 1997-2001, said he also found it “a little bit strange” that the COI handed down the recruiting penalty that it did, which would limit all football prospects to one unofficial visit to campus per academic year for the duration of Ole Miss’ probation. Ridpath said that specific punishment may be unprecedented.
“To me, it seems a little bit out of line and maybe a little bit abusive of the COI’s discretion to say that somebody can’t take as many unofficial visits as they want because if it’s an educational institution, you or I could go visit Ole Miss as many times as we want if we were looking at it,” Ridpath said. “But if I’m interested in athletics, I should be able to go there and also look at that.
“I have to admit that’s one I have not seen. If unofficial visits have been restricted before, I can’t think of one off the top of my head where that’s happened.”
As for getting the lack of institutional control reversed, Ridpath said that’s going to be the toughest sell for Ole Miss considering the booster involvement within the program. Fourteen boosters were identified in the investigation with six of them disassociated indefinitely while others have been disassociated for at least the length of the probation period.
The COI in its ruling also made reference to booster involvement in Ole Miss’ infractions cases in 1986 and 1994, referring to the school’s booster culture as “unconstrained.” Bjork said the citing of cases that far back is “not applicable to our current case” and that it is “a gross misapplication of the charge of lack of institutional control.”
Ridpath said it’s the level of involvement, including the school’s acknowledgment that former staff members and boosters were working in cahoots to provide impermissible benefits to recruits, that has the NCAA justified in its finding in the current case.
“I’m not saying they can’t persuade the (appeals) committee, but I think it’s pretty tough to say Ole Miss had control when you look at it from an institutional perspective,” Ridpath said.
The most serious booster allegations came from information provided in immunity interviews by Mississippi State linebacker Leo Lewis, who claimed that former administrative staffer Barney Farrar arranged for him to receive cash payments totaling as much as $15,600 from boosters when he was a recruit. Ole Miss agreed that Farrar, who was hit with a five-year show-cause penalty, facilitated contact between Lewis and the boosters but argued in its response to the amended NOA there was no evidence that Lewis ever received the payments, pointing out inconsistencies in Lewis’ three interviews with NCAA enforcement staff.
Lewis also reportedly testified at Ole Miss’ COI hearing that he got a $10,000 cash payment from the father of MSU teammate Farrod Green. But the enforcement staff found Lewis credible as did the COI, so it’s unlikely, Ridpath said, that the appeals committee will disagree.
Having spent three years as a professor at Mississippi State from 2004-06, Ridpath said he’s followed Ole Miss’ case “pretty close” and believes the COI may have been trying to send a message with its penalties given the history that Ole Miss and Mississippi State, which was hit with probation and a bowl ban in 2004 for violations committed by assistant coaches and boosters under former head coach Jackie Sherrill, have with boosters being connected to their infractions cases.
“The reputation, a lot of people say it shouldn’t weigh into it and that the appeals committee only looks at the hearing record and same with the Committee on Infractions, but everybody knows what’s going on,” Ridpath said. “There’s no secret with what’s been going on between Ole Miss and Mississippi State for 100 years.”
Tompsett didn’t want to speculate on how the appeals committee might rule in a case he’s not involved in. Ridpath said “there’s no guarantee that (Ole Miss) is going to get something back, but schools have had a pretty high rate of success of at least having some relief.”
Both said it’s up to Ole Miss to make an appeal that’s more than convincing.
“I can just tell you that any time you’re trying to argue in front of the appeals committee, it’s an uphill battle in both getting findings reversed and getting a penalty overturned,” Tompsett said. “It’s a very high standard.”