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Aug 23, 2002

UA attacks sanctions as unfair

Featuring: Robert T. Cunningham

Alabama appeal based on contention that heavy sanctions are unprecedented and inappropriate for the violations committed 

Sports Reporter 
Mobile Register 

In appeal documents released Monday, the University of Alabama attacked the NCAA Committee on Infractions' reasoning and its application of bylaws in handing down sanctions against the Crimson Tide football program, which the school called "draconian" and "fundamentally unfair." 

The university, led by Mobile attorney Robert Cunningham Jr., argued for relief from the sanctions -- which included a two-year preseason and postseason ban and the loss of six scholarships on top of the 15 self-im posed by Alabama -- last Friday before the NCAA Infractions Appeals Committee. The committee, which can uphold the COI's penalties or vacate any or all of them, is expected to make a ruling within eight weeks. 

The language in Alabama's appeals brief and its rebuttal to the COI's response is emphatic in demonstrating Alabama's conviction that the NCAA treated the university unjustly. 

Throughout the documents, in which legal jargon was strikingly sparse, Alabama's legal team repeatedly pointed out the school was subject to institutional penalties where no institutional fault was found. At one point in its appeal, the university termed that act a "perverse break from precedent," and in another it called the two-year bowl ban "eviscerating the ultimate goal of any football season -- a college bowl game." 

Alabama's case, perhaps the most widely reported in NCAA history, revolved around alleged improper payments from boosters, the most sensational of those being charges that Memphis businessman Logan Young arranged to pay high school football coach Lynn Lang as much as $115,000 for Lang to steer star player Albert Means to Alabama. The university agreed to a lifetime ban on boosters Young, Ray Keller and Wendell Smith. 

Some of the most forceful writing in the documents came early in the school's rebuttal when it launched into the COI with this argument: 

"If this approach by the COI somehow wins the day, it will cripple much more than the university's football program. It will make a mockery of the precedent carefully developed by this committee in order to ensure that specific penalties correspond to underlying violations and that similarly situated institutions are treated the same. And it will destroy the vital principle of cooperation by which the NCAA and its members are meant to be allies, not adversaries, in pursuing the shared goal of compliance; for that principle cannot survive if a model institution's best efforts are to be disregarded -- indeed, turned against it -- by the COI in a unilateral, scorched-earth campaign against rogue boosters." 

Alabama's legal footholds focused on basic constitutional ideals like due process and fundamental fairness. 

The university pointed out it was the only school in NCAA history to receive a postseason ban when none of the "big three" findings of lack of institutional control, failure to monitor and unethical conduct were pinned on it. It also pointed out Alabama was the only school to receive five years of probation without being found to have a lack of institutional control or failure to monitor. 

Alabama's attorneys cited recent decisions by the COI in repeat-violator cases involving Kansas State and Wisconsin, which Alabama considered comparable to its own case. Wisconsin did not receive a postseason ban in its 2001 case, which involved a failure-to-monitor charge. 

In the Kansas State case of 1999, which involved boosters providing cash to a football player, no postseason ban was leveled. 

Alabama's legal team pointed out the seeming inequality in meting penalties, writing, "In this case, as the NCAA has acknowledged, Alabama's conduct was no less exemplary than KSU's, yet it received crippling institutional penalties previously reserved for outlaws, including five years of probation, a ban on pre- and post-season eligibility for two years, and losses of scholarships beyond those that Alabama had already self-imposed." 

Alabama's appeal centered on several factors in which it claimed: 

-- The penalties did not fit the findings. 

-- The enforcement staff relied on information obtained from a secret witness, in opposition to its bylaws. 

-- The NCAA reached beyond its four-year statute of limitations to find violations from 1996, even though the enforcement staff had knowledge of the violations in 1996 and did not inform Alabama. 

-- The repeat-violator penalties were improperly applied because Alabama's case involving men's basketball in 1998 was held up as a model of compliance. 

The COI's response has not been released to the public. However, Alabama's legal team made reference to the response when it wrote that the COI sought support for its penalties from one precedent, the University of Mississippi's case in 1995, which included a two-year postseason ban. 

Alabama's legal team wrote in its rebuttal: "That case differs so vastly from this one that it discredits the COI's position. The penalties in that case were imposed in the face of myriad, egregious violations by boosters that occurred with the recurrent complicity of the university itself, which was guilty of a complete failure of institutional control and numerous findings of unethical conduct reaching to the highest levels of its department." 

Alabama's legal team underwent an overhaul since the COI's report was released on Feb. 1. 

Faculty athletics representative Gene Marsh, a member of the COI, and director of compliance Marie Robbins both had only minimal input into the appeal. Cunningham, who departed on a fishing excursion after returning from Friday's hearing in Chicago and could not be reached for comment, took over as lead counsel, with help from holdovers Stan Murphy of the UA Office of Counsel and Rich Hilliard, an expert on NCAA bylaws. Robbins also stepped away from her compliance duties and took over as Alabama's senior woman's administrator.

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