HOPE FOR BAMA?
Aug 4, 2002
By THOMAS MURPHY
Sports Reporter
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.