Alabama's Rebuttal Makes Strong Points

Americans accustomed to a judicial system designed to be fair and open have difficulty understanding the workings of the NCAA staff and committees charged with upholding the rules of the organization. That's in part because it frequently works in secret, in part because it routinely ignores its own rules and precedent.

Alabama's football team was forced to vacate 21 victories from 2005 through the middle of 2007 because of a situation in which athletes defeated The University's system of monitoring textbook distribution.

The University announced immediately its intention to appeal, which it did in July. The penalties were handed down by the NCAA Committee On Infractions (COI). The appeal is to a different body, the Infractions Appeals Committee. NCAA protocol has The University make its appeal, which was made public at the time in July. The COI then makes a rebuttal to the Infractions Committee, which is kept secret. The University then makes a rebuttal to the rebuttal, which was submitted September 17 and made public October 14.

The textbook problem would never have been known had not UofA administrators discovered the problem and reported it. Those same administrators fixed the problem and punished those who had abused the system.

Enter the NCAA Committee On Infractions, which did nothing but decide the penalty. Most penalties were agreed upon by The University, although it's still galling that the victim of the crime – The University – was forced to pay a fine to the NCAA that was double the cost already sustained by UofA. That's like fining a store owner who is the victim of a robbery.

This dead horse has been oft-beaten, but must be smote again. It is difficult to believe the NCAA staff and committees are not flawed, either by bias or incompetence or something else, perhaps more sinister. Alabama's history with the NCAA Investigative Staff and subsequent committees strongly suggests collusion among the bodies that will not be overcome on appeal, although when the appeal was announced, Alabama Athletics Director Mal Moore was "hopeful that the Committee will consider the appeal fairly and with care."

(That probably got a chuckle in Indianapolis.)

The University has put its appeal and its rebuttal into light, while the COI keeps its brief secret from public scrutiny. For that reason, there is this caveat: we can only deduce the COI response from Alabama's rebuttal. It is possible, though unlikely, that The University has been as derelict in its duty to address the issues as the COI response seems to have been.

As it did in its appeal, The University was not timid in its attack on the COI. It began:

"The brief submitted on behalf of the Committee on Infractions (‘COI') in this matter is distinctive in two respects: an omission and an addition. First and most strikingly, the COI Brief omits any discussion of other textbook cases that have come before the NCAA, a factor which is both relevant and necessary for the determination of whether the penalty in this case is an abuse of discretion. The fact that no vacation-of-wins penalty was entered in any prior textbook case is a fact which cannot be avoided, and a fact which warrants a reversal of that unprecedented penalty in this case.

"Second, the COI Brief compounds its initial error of omission with the error of addition, adding a justification for its vacation-of-wins decision beyond that set out in the Public Infractions Report. That purported justification—the University's status as a repeat violator—is not a stated basis for the actual decision of the COI; is contrary to the statements made by the COI during its oral explanation of the decision; and, even if supported by the decision, would be further evidence of an abuse of discretion, as it ignores bylaws and precedent addressing repeat violation penalties."

The NCAA generously allows its members to appeal decisions of the COI without being subject to retribution, at least in theory. Alabama cannot receive additional penalties from the Infractions Appeals Committee in this action.

Alabama's original appeal was a 27-page brief, one-third of which was devoted to the history of the COI in prior textbook cases, none of which resulted in a vacation-of-wins penalty. Incredibly, according to The University's rebuttal, "In this case, the COI has failed not only to explain its departure from textbook case precedent..., the COI has compounded that error by failing even to acknowledge the existence of those prior textbook issues in its brief."

The rebuttal reminds the Infractions Committee of the many examples it cited in its appeal, including those in which the Infractions Committee overturned decisions by the COI. The rebuttal also pointed out errors of fact in the COI brief related to its previous rulings.

It appears the COI brief, with no substance to stand on, resorted to name-calling. Although in its initial decision its chairman, Paul Dee, praised The University for its compliance efforts, in the brief the University is called a "serial repeat violator" which was the "driving force behind the imposition" of the vacation-of-wins penalty; that the penalty is justified by the University's "abysmal infractions track record" that the University's "extensive recent history of infractions cases is unmatched by any other member institution in the NCAA;" and that "[w]hat truly distinguishes this that the COI faced an institution with an appalling and unprecedented recent infractions history."

No one is whitewashing the recent history of Alabama before the NCAA, but The University's rebuttal took the COI brief to task on numerous factual fronts, many of them citing previous COI statements.

And, The University pointed out, even if that had been the motivation of the COI (though not stated at the time penalties were assessed on June 11), the vacation-of-wins penalty is not appropriate under NCAA rules and precedent.

It seems the COI elected to use a non-public "policy document" developed by its own subcommittee rather than NCAA rules and precedent.

Alabama's rebuttal concluded, "Such a penalty is a clear abuse of discretion in this case. It involved the application of incorrect legal standards, misapprehended substantive legal principles, was based in part on erroneous factual conclusions; failed to consider materials factors; erred in judgment to such a degree to be arbitrary, capricious, and irrational; and was based on irrelevant and improper factors."

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