On May 26, 2011, the NCAA Division I Infractions Appeals Committee issued its decision in the University of Southern California (USC) enforcement case. USC appealed the decision of the NCAA Division I Committee on Infractions. USC argued in its appeal that: (a) the penalties imposed on the institution should be reduced because they “are not supported by the facts and are excessive”; and (b) the Committee on Infractions’ findings of violations B-1-b, B-2, B-2-a, and B-7 “are contrary to the evidence, based upon facts that do not constitute a violation and compromised by procedural error.” The appeals committee upheld all of the Committee on Infractions’ findings and penalties.
One aspect of the appeal case will loom large on subsequent NCAA infractions decisions (hello, Ohio State, Tennessee, etc.). Specifically, the appeals committee’s stance on whether the Committee on Infractions is obligated to adhere to case-precedent (i.e., prior infractions decisions) is the most important part of the case. In upholding all penalties in the case, the appeals committee concluded the Committee on Infractions did not commit error and did not depart from prior decisions (emphasis added):
“The institution placed particular reliance on the Committee on Infractions’ decision in the 1996 Florida State case, arguing that the case “illustrates how the [Committee on Infractions] historically has penalized universities for amateurism violations.” (Written Appeal Page No. 8) While the institution’s observation regarding that case may be correct, we also must make clear that the principle of guidance from prior decisions is not an unyielding directive. It is instead a matter of considered judgment to be applied along with all other factors which this committee has recognized should guide the Committee on Infractions and this committee. And, one very important factor in the application of that principle, and in determining the extent to which a prior decision should guide a present decision, is change in the matters to which the decisions of the Committee on Infractions and this committee are directed. The Committee on Infractions should not be strictly bound to a decision made fifteen years earlier, when the circumstances of intercollegiate athletics were qualitatively different than those which presently obtain. This, of course, does not mean that prior decisions provide no restraint on or guidance to the Committee on Infractions and this committee, or that insignificant changes in the environment in which NCAA member institutions operate can justify ignoring those prior decisions. It means only that the guidance provided by prior decisions is, and always has been, a matter of judgment. In this case, we cannot say that the Committee on Infractions improperly exercised that judgment.”
The appeals committee has opened the door for the Committee on Infractions to assert as a pretext that it properly exercised its judgment when it determined case-precedent was not applicable in any case. The appeals committee decision leaves the Committee on Infractions with too much subjective room to ignore case-precedent when it desires. Further, the Committee on Infractions ignoring case-precedent may adversely impact the due and fair process rights of parties in the enforcement process. In particular, the NCAA is a voluntary association. Federal and state law recognizes a general principle of judicial noninterference in the internal affairs of voluntary associations. However, courts will intervene when a voluntary association violates a member’s property or civil rights or when an association enforces its rules in an unlawful, arbitrary or malicious manner. For example, an association’s decisions that are inconsistent with comparable cases may implicate court interference. Accordingly, NCAA case-precedent attaches a specific “consequence to a detailed set of facts in an adjudged case or [infractions] decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same” or lower infractions committee. See Allegheny Gen. Hosp. v. Nat’l Labor Relations Bd., 608 F.2d 965, 969-70 (3rd Cir. 1979). The appeals committee decision in the USC case may lead to widely inconsistent and arbitrary decisions—which could be seen by the membership, media and the public as the committees using favoritism for certain schools or coaches. The recommendation also could serve as a basis for litigation between aggrieved parties and the NCAA on due and fair process grounds.