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Sep 17, 2002

Appeals committee does not come to rescue

Featuring: Robert T. Cunningham

By Tom Farrey 

As a vast, member-driven organization, the NCAA can be an impossible creature to fathom. Initiatives ebb and flow, decisions are made and un-made, and it's sometimes hard to know where they came from, sort of like those Shamrock shakes at McDonald's. 

But when it comes to NCAA-style justice, this is all you need to know about the power of the Division I Committee on Infractions: It can only be as tough on cheating as its appeals committee allows. 

You want a level playing field where your favorite team has a fair shot in recruiting? 

You want a scenario in which Saturdays aren't run by booster money? 

You need a firm, supportive NCAA Infractions Appeals Committee. 

For a change, that's exactly what the appeals committee was on Tuesday. In announcing that it was denying requests from Alabama and Kentucky for relief from the moderately serious sanctions handed out to those football programs last winter, the four-member committee -- chaired by Clemson athletics director Terry Don Phillips -- effectively sent the message that their group isn't necessarily the Red Cross. 

Crimson Tiders, of course, are most shocked and perhaps justifiably so. After all, Alabama previously had successfully appealed penalties in a 1995 case, in which scholarship cuts levied by the infractions committee were later cut in half. 

"In the briefs and evidence presented by the university to the Infractions Appeals Committee, we carefully analyzed the history of sanctions imposed against other institutions since 1988, when the principle of institutional control first became part of NCAA jurisprudence," said Robert T. Cunningham Jr., an attorney who represented Alabama before the appeals committee. "That history shows, without contradiction, that no institution has ever received a postseason ban of any length in the absence of specific findings of lack of institutional control, failure to monitor, or unethical institutional conduct." 

This argument was the basis of the Alabama appeal. In the past, it's been effective. In fact, LSU basketball used that rationale to get a postseason ban lifted in 1999. After the infractions committee dished out penalties stemming from violations in the recruitment of Lester Earl, the appeals committee disagreed, clearing the Tigers for action on the eve of the SEC tournament that year. 

The NCAA values the notion of institutional control -- virtually inventing the phrase -- because it needs the cooperation of schools to police themselves. It's been reluctant to bring the hammer down when school officials appear to be doing everything possible to discourage boosters and athletes from breaking the rules. It's been extremely reluctant to do so when school officials cooperate with NCAA investigators, as in the Alabama and Kentucky cases. 

But this time, the appeals committee broke with form. Alabama's two-year bowl ban stands, as did Kentucky's one-year prohibition. 

"You have to understand that there's a pattern of abuse by boosters that has to be dealt with," Phillips said during a national teleconference to announce the findings in the Alabama case. 

But if the appeals committee has adopted a new get-tough posture, Phillips isn't conceding as much. In an interview with after the teleconference, he insisted the committee's decision was based purely on a review of the facts in the case. That, and a strong articulation by the infractions committee on the reasons it issued the bowl ban. 

He said there has been an "evolution" in recent years in how the infractions committee explains its actions. 

"In the LSU case, we vacated the postseason penalty because we didn't know how the committee got to that decision," said Phillips, who was on the appeals committee at the time. "Now, they're writing in (their reasons)." 

So maybe Tuesday's decisions are just a reflection of the NCAA's enforcement process finally coming full circle. In the early 1990s, coaches and critics howled that the infractions committee was mean-spirited and arbitrary, leading to the formation of the appeals committee. That new check on the system reduced penalties in some cases, and embarrassed the infractions committee in other cases -- most notably in the 1995 Alabama case when the school's faculty athletic representative was wrongly pegged to a violation. 

Ultimately, the scrutiny of the appeals committee may have better prepared the infractions committee to make tough penalties stick when the violations call for such action, said Tom Yeager, who is in his first year as chair of the infractions committee. 

"If we're going to be tough on cheating, we need all of our facts in order," said Yeager, whose day job is as commissioner of the Colonial Athletic Association. "Just as we hold the enforcement staff responsible for bringing good cases to us, the appeals committee needs to know that we're not making off-the-chart decisions that are inappropriate." 

Or maybe the NCAA is just tired of being perceived as a toothless watchdog. 

Either way, the word is out now for any big-money program that suspects it can talk its way out of any trouble that the infractions committee dishes up. These Shamrock shakes might have to be swallowed. 

Tom Farrey is a senior writer with He can be reached at

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