By THOMAS MURPHY
While the Mobile lawyer handling the University of Alabama's appeal has conceded it will be tough for the Crimson Tide football program to earn significant relief from stern NCAA sanctions, recent rulings may give school officials a ray of hope.
The NCAA Committee on Infractions slapped Alabama with a two-year postseason ban and docked it six additional scholarships over the self-imposed 15 the university offered over three years. Additionally, the committee imposed a scholarship limit of 80, down from 85, for the next three years.
In its Feb. 1 report, the infractions committee held up Alabama's "rogue booster" case as an example, citing the "engrained culture of non-compliance" among some contributors to Crimson Tide football.
In piling the penalties on Alabama, the committee noted the "insider" status granted to former booster Logan Young and others, and warned of the dangers of not monitoring those boosters and keeping them in compliance with NCAA rules. Alabama was not cited for lack of institutional control but because of its repeat-violator status, committee chairman Thomas Yeager issued his infamous declaration: The Tide was "staring down the barrel" of the death penalty.
When he joined UA's legal team as lead counsel for the appeal, heavy-hitting Mobile attorney Robert Cunningham Jr., recognized the odds of success seemed slim.
"We do understand, and everyone interested in this appeal should understand, that we face a very difficult uphill battle," Cunningham said in February.
Cunningham, who accepted the case without payment, will argue Alabama's appeal before the NCAA Infractions Appeals Committee at the Westin Hotel in Chicago on Aug. 16.
But recent rulings by the NCAA's Committee on Infractions and the Infractions Appeals Committee may also give Alabama reasons to be optimistic.
In the Howard University case, which involved widespread violations and lack of institutional control, the appeals committee reduced the period of probation from five to three years, citing exemplary cooperation by the university.
Cases involving California football and Minnesota women's basketball -- both repeat violators and both found guilty of lack of institutional control -- might also provide some legal footholds for Alabama.
Cal football was sentenced to a one-year postseason ban and five years of probation for violations involving academic fraud, academic eligibility, extra benefits and recruiting.
Minnesota's women's basketball program did not receive a postseason ban and lost one scholarship the next two seasons for violations involving extra benefits, recruiting, ethical conduct and institutional control.
Alabama's legal team has filed submissions for the record citing these rulings.
The school's revamped legal team, which also includes UA attorney Stan Murphy and Indianapolis-based Rich Hilliard from the original hearing, is also receiving input from Charles J. Cooper and Derek Shaffer of the Washington, D.C., firm Cooper & Kirk. Cooper, a 1977 Alabama School of Law graduate who placed first in his class, has an extensive appellate background.
Cooper, a founding partner in the Washington firm Cooper & Carvin (now Cooper & Kirk) in 1996, was a clerk for Supreme Court Justice William H. Rehnquist in the late 1970s, then served more than seven years as a U.S. Department of Justice official.
Cunningham's reputation has soared in recent years as one of the lead lawyers in Cunningham, Bounds, Yance, Crowder and Brown's legal victories for the State of Alabama in recovering royalties from major oil and gas companies.
A former Marine helicopter pilot who goes by the name Bob-O, Cunningham helped the State of Alabama win the largest jury verdict in state history -- $3.5 billion -- in a case against Exxon Mobil dealing with offshore natural gas drilling. The decision, which included $3.42 billion in punitive damages, was made in December 2000, and is still under appeal to the Alabama Supreme Court.
In a Register story, Cunningham called the Exxon case "the pinnacle of all we have ever done."
Cunningham, Bounds, Yance, Crowder and Brown also won a $24.5 million jury award for the state against Hunt Petroleum and settled a similar case against Shell Oil Co. in March for $27 million.
Sources close to UA's appeal are guardedly optimistic about the legal arguments the defense team will present. Whether that will convince the four-member appeals committee to relent on some or all of the additional sanctions is purely a matter of speculation.
Murphy's notice of appeal laid out clear lines of defense.
He argued the infractions committee's application of the repeat-violator status was procedurally incorrect.
Murphy also argued the committee's reliance on information from unidentified sources was in direct violation of an NCAA bylaw.
He claimed the committee's analysis and application of the NCAA's statute-of-limitations policy was in error. And he felt the committee did not take into account the NCAA enforcement's staff's failure to provide Alabama timely notice of violations or potential violations.
Alabama's appeal will be heard by an atypical appeals committee, as chairman Mike Slive, the new commissioner of the SEC, has recused himself.
The four remaining members are Terry Don Phillips, Oklahoma State athletics director; Noel Ragsdale, faculty athletics representative at Southern California; Allan Ryan, Harvard University attorney; and Robert Stein of the American Bar Association, the committee's public member. Ironically, Alabama's 1995 appeal was also heard by a four-member committee.
Phillips, serving in his fifth year, has the most committee experience of the foursome and is expected to serve as acting chair in Slive's absence. Slive's time on the committee is scheduled to end in September as he wraps up his third three-year term.
Alabama's entourage is expected to include the attorneys, plus director of athletics Mal Moore, former UA president Andrew Sorensen and interim president J. Barry Mason.
Jerry Parkinson, dean of the University of Wyoming law school who sat in on Alabama's original hearing, will present the NCAA Committee on Infractions' case in Chicago.