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ARGUMENTS FELL ON DEAF EARS

Sep 18, 2002

GREG WALLACE
BIRMINGHAM POST-HERALD

TUSCALOOSA — At every turn, the NCAA Infractions Appeals Committee had an answer.

Each objection voiced toward the NCAA's Infractions Appeals Committee was met with an equal, legitimate and strong retort.

And when the dust settled Tuesday morning, the University of Alabama was no further along than it was on the afternoon of Feb. 1, when the Committee on Infractions levied heavy sanctions against the UA football program.

In a conference call Tuesday morning, Infractions Appeals Committee Chairman Terry Don Phillips repeatedly stressed that if not for the diligent efforts of Alabama's compliance department, there would be no football program to speak of.

With that, Phillips and the rest of the Infractions Appeals Committee emphatically quashed any lingering hopes of relief among the Alabama faithful, announcing the university's appeal had been categorically denied in all areas.

"This case was very much about the institution's cooperation," Phillips said. "But for the unequivocal cooperation of the university (with NCAA investigators), the death penalty would most likely have been imposed. To their credit, they sought out the facts and saved the university from the ultimate penalty. The university was very diligent and vigorous in the appeal, but the result is not what they would desire."

Now, the UA football program must face the ugly truth: It won't play in a preseason or postseason football game for the next two seasons, and will lose 21 scholarships over three recruiting classes, which began with 2002's class and will extend through 2004. The overall number of scholarship players allowed has been reduced from 85 to 80 through 2004, and the five-year probation imposed will remain intact.

That means UA and Coach Dennis Franchione must avoid another major violation within the probation period, or face the NCAA's first "death penalty" punishment since 1987, when SMU received the first and only NCAA-mandated program shutdown. They also must figure out how to turn around the program by the NCAA's harsh terms of probation, with no wiggle room or relief allowed.

A vigorously worded appeal brief and rebuttal raised hopes of a successful appeal. It was prepared by four lawyers: Robert Cunningham of the Mobile firm of Cunningham, Bounds, Vance, Crowder and Brown; Charles Cooper, an Alabama alumnus and partner in the Washington firm of Cooper and Kirk; Rich Hilliard, an Indianapolis lawyer of the firm of Ice/Miller and a former NCAA investigator; and UA counsel Stan Murphy.

The brief stated all penalties above the 15-scholarship cut imposed by the university should be vacated, including both years of the postseason ban and the six additional scholarships revoked.

The appeal hinged on three main points, and systematically, the Infractions Appeals Committee shot each one down, like a hunter bagging clay pigeons in a flat, deserted farm field.

* Point No. 1: UA argued the NCAA made errors in its applications of rules on violations involving the recruitment of Stevenson defensive lineman Kenny Smith, who allegedly received $20,000 from now-disassociated "rogue" boosters to sign a national letter of intent with Alabama. Smith never qualified academically to play at Alabama.

UA's defense team contended that NCAA enforcement officials knew of potential violations involving Smith in 1996 and never told Alabama compliance officials. UA also argued those violations were beyond the four-year statute of limitations when they were investigated in 2001.

The Infractions Appeals Committee disagreed, saying the "willful pattern" of violations made it a valid charge, and the fact that booster misconduct continued in the Albert Means case, which happened within the four-year statute of limitations formed the pattern.

"We found that the enforcement staff's application of the statute, based on legal history, was correct," Phillips said. Would Alabama have been able to prevent violations had it known they were occurring in 1996? That, says the committee's report, is "speculation."

Strike one.

* Point No. 2: Alabama officials argued testimony of a "secret witness" was used against them incorrectly. According to the Infractions Appeals Committee, UA officials knew the identity of the secret witness, whom they interviewed as part of a joint investigation.

Alabama officials contend they never consented for the witness's testimony to be used as anything but background information in the Smith case. Instead, it was used to prove a pattern of booster violations.

The NCAA contended that when Alabama allowed the secret witness, it allowed complete freedom of testimony.

"The institution's written waiver contains no such limitation on the use of information obtained from the confidential source," the report reads. "Nor did the institution articulate any such limitation at the Committee on Infractions hearing. The institution argued on appeal that its waiver related only to using the confidential source information in connection with other allegations because that was the context in which the NCAA enforcement staff had discussed using it. If an institution that waives its rights under Bylaw 32.7.5.5.1 does so on a limited or conditional basis, it must articulate those conditions in its waiver."

Furthermore, Phillips said there was plenty of evidence to support the violations without the witness.

"Take out the witness, and there was still ample information beyond what the committee provided," he said.

Strike two.

* Point No. 3: Alabama officials argued the two-year bowl ban was inappropriate because the school had not been charged with lack of institutional control or failure to monitor. Furthermore, only one current or former UA employee — former Alabama football assistant coach Ronnie Cottrell — was implicated in the findings. Cottrell's appeal of violations of NCAA "principles of honesty and cooperation" was denied Tuesday.

In an appeal brief, Alabama noted it was the only school in the past 14 years to receive a ban without being charged with institutional violations.

The Infractions Appeals Committee challenged the notion, saying a 2001 UNLV basketball postseason ban came at no fault of the institution. This is incorrect; UNLV was charged with failure to monitor, an omission Phillips apologized for on the teleconference when prompted.

"We believe the UNLV case actually supports a reduction of that sanction," Alabama lawyer Robert Cunningham said. "And we are astounded by an error so fundamental."

But the mistake had "absolutely nothing to do with our findings," Phillips said. "It was a pattern of abuse that involved boosters."

The report concluded that a ban involving boosters is appropriate, regardless of institutional findings, because the boosters involved were "not the typical representatives," but enjoyed "favored access and insider status." That special access, the report said, "fosters the belief that their conduct is sanctioned by the university."

Furthermore, even though Alabama received praise for its handling of a major violation involving former men's basketball assistant coach Tyrone Beamon in 1999 (for which no penalties were handed out), it remained a two-time repeat violator. Excellent compliance mattered, the Infractions Appeals Committee said, but not enough to lift sanctions.

"Even if the nature of the 1999 case mitigates the institution's status as a two-time repeat violator, the institution remains a repeat violator as a result of the 1995 (football case)."

Strike three.

From the beginning, the odds were stacked against Alabama receiving significant relief. One line from Tuesday's final report spells out the findings: "The Committee on Infractions determines the credibility of the evidence."

To overturn a ruling, Alabama had to prove its case beyond a shadow of a doubt, a difficult task considering it was playing in the NCAA's court, not a neutral site.

That meant the defense team not only had to show how the Committee on Infractions incorrectly handled its case, but also prove the missteps significantly altered the final result.

In the end, the Infractions Appeals Committee examined the evidence, but didn't find it compelling enough to overturn the Committee on Infractions.

Now, Alabama and Dennis Franchione must go on with their lives, rebuilding a program tarnished by two NCAA probations in six years.

"I believe in Coach Fran and his staff and am confident he is the man who can lead this football program back through these trying times," Alabama Athletics Director Mal Moore said. "Through this adversity, we will move forward and become stronger than ever."

The alternative is unthinkable.

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