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Sep 17, 2002

Sanctions stand

Featuring: Robert T. Cunningham

By Cecil Hurt 
tuscaloosanews.com 

TUSCALOOSA | The NCAA Infractions Appeals Committee on Tuesday pointedly rejected the University of Alabama’s appeal for relief from sanctions imposed on the football program by the NCAA in February, repeating much of the same rhetoric that the Infractions Committee used in its original report. 

Terry Don Phillips, who spoke for the appeals committee at the 10 a.m. teleconference, said that the penalties imposed on Alabama were “appropriate" and that “[except] for [Alabama’s] institutional cooperation, the death penalty would very likely have been imposed." 

However, Ala-/sbama officials continued to dispute that view after the decision and to distinguish UA from Southern Methodist University, which received the so-called death penalty in 1987. 

“It is absolutely ludicrous to compare this case to the SMU case," said Robert “Bobo" Cunningham of Mobile, who served as Alabama’s lead attorney in the appeal. “It’s like a judge telling a shoplifter, ëWell, I could have given you the death penalty, so just be thankful that I gave you life in prison.’" 

Asked if there was any avenue which UA could pursue, Cunningham said that there was “no right of review" of Appeals Committee decisions within the NCAA, and seemed to discount the possibility of legal action. 

“There is nowhere for us to go," he said. 

The penalties that remain in place/sinclude a reduction of 21 scholarships, including 13 over the next two recruiting classes at UA; a two-year ban from postseason play; lifetime disassociation of three boosters, and other restrictions on recruiting and booster access. 

Alabama also received a postseason football ban as part of a 1995 NCAA probation. The current two-year ban prohibits UA from competing for the Southeastern Conference championship in 2002 and 2003, and will mean that the Crimson Tide will miss postseason play in consecutive years for the first time since 1957-58. 

The Infractions Appeals Committee echoed the Infractions Committee in/srejecting several of the specific arguments made by UA in its appeal. 

In rejecting Alabama’s argument that violations committed in the recruitment of defensive lineman Kenny Smith of Stevenson in 1995 and 1996 were outside the four-year statute of limitations, the Appeals Committee found that statute was not applicable because there was a “pattern" of violations that made the charges current. Although the Appeals Committee acknowledged that the NCAA enforcement staff used a “confidential source" to ascertain that “pattern," it held that the use of such a source was permissible because Alabama had waived its right to exclude such testimony from its November hearing before the Committee on Infractions 

While Alabama acknowledged that it had granted limited use of confidential sources in a November, 2001, memo from Gene Marsh, the faculty athletics representative, to the NCAA, it contended that the use of that testimony was limited to charges involving Memphis lineman Albert Means. 

The Appeals Committee further added that, even though the NCAA relied heavily on confidential source testimony to support allegations that booster Logan Young conspired to pay a high school coach to obtain Means’ signature, there was “ample evidence supporting the findings," even if the use of the secret witness had been barred. 

Phillips acknowledged at least one factual error in the Appeals Report, a mistaken reference to Nevada-Las Vegas’ appeal in 2000. The Infractions Appeals report spent several paragraphs in which the UNLV case was cited as a precedent for the imposition of a postseason ban on institutions who were not found to have a lack of institutional control or a failure to monitor. UNLV was in fact cited for a failure to monitor in its case. 

Despite the prominence of the references to UNLV, Phillips, after acknowledging the factual error, said it had “absolutely nothing to do with the findings in the case." 

Cunningham said that response was “incredible." 

“After all the time and effort we put into the appeal," he said, “they ignored our central argument and the lame answer they attempted to give in citing the UNLV case was flawed and showed just the opposite of what they intended it to show." 

The dismissal of procedural arguments left only one issue to be settled ó the appropriateness of the penalties imposed. 

The Appeals Committee noted that the two-year postseason ban is “one of the longest imposed by the Committee on Infractions." However, it said the ban was justified because UA was a “two-time repeat violator" (although the report later states, contradictorily, that the 1999 UA case served to “mitigate" penalties as well as enhancing them), because of the “very serious nature" of the recruiting violations, and because the “institution bears some responsibility for the special status" enjoyed by Young and another booster, Ray Keller of Stevenson. 

Phillips said that the Appeals Committee agreed that “favored access and insider status (of the boosters)" created “greater university responsibility" for their actions. 

Young, reached by The News at his home in Memphis, said he “could not talk at this time" on the advice of his attorneys. 

“I’ll have my day, but my lawyers have told me not to say anything at this time," Young said. 

The closest that the Appeals Committee came to criticism of any NCAA entity in the case came when it acknowledged that the Enforcement Staff had failed to share information concerning possible violations in the Smith recruitment in 1996. 

“All the parties regretted this lapse by the enforcement staff," the Appeals Committee report read. In subsequent questioning, Phillips said that enforcement staff error “could be a (penalty) mitigator in the future," but offered no insight into why it did not mitigate penalties in the present case. 

In a related case, the Appeals Committee also turned down an appeal by former UA assistant coach Ronnie Cottrell. 

Cottrell had appealed a finding of unethical conduct based on a “failure to make complete disclosure" in an NCAA interview during the UA investigation. Cottrell contended he had answered the questions asked, but the Appeals Committee simply noted that the finding of unethical conduct “was not contrary to the evidence." 

Cottrell was not immediately available for comment on Tuesday.

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