As is often said, "the cover up is often worse than the crime." I lived through Naval aviation's Tailhook Scandal, and saw first hand how trying to stonewall investigators can make a bad situation worse.I knew virtually nothing about the 2015 NCAA infractions case against the University of Hawaii, Manoa (UH); but after hearing that the Committee on Infractions (COI) had reduced penalties against UH after the Infractions Appeal Committee (IAC) had remanded the case back to the COI, I got curious and researched the case history. The coaches' actions in the UH case strike me as a perfect example of how a case with arguably trivial-sounding infractions turned into something worse thanks to their trying to cover up or misrepresent their actions.
You can read the chronology and narrative of the case in the (Remanded) Public Infractions Report and the Infractions Appeals Committee report, though there are other "untold" stories that you'd need to find elsewhere and assess their veracity for yourself. You'll find the usual complaints about NCAA enforcement run amok, and of institutions throwing athletics staff under a bus, finger-pointing, blame deflecting…we see it in practically every NCAA rules infraction case. Member institutions say they want fair, equitable yet strong enforcement, until the microscope gets pointed their way. Then, suddenly, it's someone else's fault or "the NCAA has an agenda."
The spirit of "ohana" is noble, unless it's warped to cover up rule-breaking out of a sense of loyalty. The case at the University of Hawai'i bears many hallmarks of athletics staff closing ranks, of finger-pointing between athletics personnel and the institution, and shifting of blame about the unfairness of an enforcement process that "blows things out of proportion." Frankly, it's often the closing of ranks in a skewed sense of "family" that causes the proportion-blowing.
This particular infractions case, as far as the institution's appeal is concerned, is not over the violations themselves, to which the institution conceded. Rather, it's the timing of the infractions since that determines whether the old penalty guidelines apply or the new ones. The recent remanding of the case by the IAC is being characterized as an indictment of COI ineptitude or malpractice. In fact, that is not the case at all.
As part of an extensive reform of NCAA infractions processes, the violation structure and penalty guidelines changed with the demarcation date for application being October 30th, 2012. Infractions that occurred before that date are subject to the old guidelines. Anything occurring after, or, if of a continuing nature, spanned that date, are subject to the new guidelines.
A key aspect of the case is that UH and the former men's basketball head coach (Gib Arnold) were not allied in their defenses against infractions allegations. UH had essentially agreed with the NCAA staff that Arnold and his former assistant (Bradyn Akana) had violated NCAA rules. UH removed both from their coaching positions in October 2014, while the NCAA investigation was in progress. The investigation revealed an acrimonious, "dysfunctional" relationship between the coach and the associate athletics director for compliance (Amanda Paterson) that contributed to the institution's compliance failure. Arnold reportedly didn't trust Paterson and Paterson supposedly wasn't forthcoming in helping Arnold avoid compliance miscues.
The "mistakes" were the kind of infractions the public normally thinks are trivial and even, at times, misconstrued. For instance, one of the infractions was an impermissible benefit allegation stemming from the assistant coach letting a player keep an iPad. A violation? Sure. But it could have been innocent. The "gifting" was minor and fixable. The failure to fix it, or even acknowledge it was something that needed fixing, is what makes it a bigger deal. This event occurred before the grandfathering date for penalties, but it was the shifting stories given by Akana during the investigation after the October 2012 date that made it worse than it had to be.
Same sort of thing happened with the incident of a senior player using the car of a "booster," for a couple of days. When you hear the player's version of the story, it could be understandably be seen as innocent and trivial. And it occurred before October 30th, 2012. But the choices of the coach to handle it "in house" and not report it to compliance, and later to deny knowledge to NCAA investigators turns it into a bigger deal; and THAT was ongoing after October 30th, 2012.
The conduct of the former director of basketball operations (Kerry Rupp) is even more piddling. Rupp was a former coach, hired by Arnold after Rupp was fired from Louisiana Tech to be director of basketball operations. It was apparently tough for Rupp to keep his hands out of coaching activities, even though that violated NCAA rules. And Arnold, seeing Rupp as a friend and mentor of sorts, let it go too often. Neither was thinking it was "cheating." It was just technically against the rules but potentially not a big deal. Rupp left the staff (for Montana) well before the October 30th, 2012 new penalties date, but it set the tone for how out of sync UH compliance was with Arnold's staff. What should have been, in the old parlance, a secondary infraction, had turned into, in the new parlance, a Level II infraction.
All of these relatively "minor" infractions occurred before October 30th, 2012. All else being equal, they should be subject to the old penalty structure. But what the Committee on Infractions determined was that the continuing unethical behavior by the former coach and his assistant that attempted to obscure or misrepresent the infractions to UH compliance and to NCAA investigators was worse, and those occurred after the October 30th, 2012 date. The UH compliance officer's souring of relations and communications with the coach was the institution's culpability in that dysfunction.
For some reason, the Infractions Appeal Committee disagreed. My read is that because the University had fired the coaches in 2014, and the coaches' unethical behavior during the investigation was largely committed after they were no longer UH employees, UH should not be held responsible for what made the infractions worse.
I can see that. And I can appreciate UH's position of wanting leniency since it had accepted its responsibility for the role it had played in not policing the coaches; and, having divorced itself from those coaches, hoped the COI would not hold it responsible for their actions after that separation. The COI ultimately did grant UH that leniency, but only after the case was remanded and for reasons other than why the case was remanded.
Whether UH deserved leniency or not, the COI's application of the new penalty structure was correct. Not all of the unethical misconduct of the former coach and former assistant coach occurred after they were fired. There was a period of time after October 30th, 2012 and before October 28th, 2014 when either one or both were committing unethical acts described in the infractions that weren't trivial. For instance, Akana doctored a financial document for a recruit to help the recruit gain admission to the University. That's pretty serious, if you ask me; and it happened after October 30th, 2012. And when confronted about it during the investigator, prior to his firing, he lied about it.
Now, the IAC said there should be a "nexus" between the coaching staff and institution's accountability for the actions of its staff. What IS that? Are institutions NOT institutionally responsible for their employees when it comes to compliance? If coaches fail to act ethically, are member institution's immune because compliance or leadership weren't, themselves, involved?
Except for claims that Paterson's actions helped sink Arnold (she reported the document forging to NCAA without confronting the coaches first), the non-coaching institution staff members didn't act unethically. If the institution acted promptly and correctly once it learned of the coaches' unethical conduct, should the institution be held responsible for the unethical conduct of the coaches?
The IAC seems to say "no." The COI seems to say "yes." That discrepancy exists whether the application of the new penalty guidelines was correct or not. However, the COI was correct that the worst elements of the infractions occurred after October 30th, 2012, which included a period of time when the coaches were still employed by the institution. The COI reaffirmed its original rationale, contrary to the IAC's reason for remanding. The reason the COI conceded to reducing the penalties was for a leniency decision entirely different from the reasons for remanding.
What does any of this have to do with UNC? This is, after all, a blog focused on and critical of UNC's response to its own scandal. It is not blog dedicated to the defense of the NCAA infractions process. By no means do I think NCAA Enforcement is faultless or that there aren't flaws in some COI decisions. But UNC partisans like to jump on any perceived failure by NCAA infractions process and claim it undermines the NCAA case against UNC. This "remanding" isn't the indictment of Greg Sankey's Committee on Infractions that UNC advocates try to make it out to be.
The only real significance I can see of this UH case development is that it reinforces the notion that the allegations of unethical conduct by Julius Nyang'oro and Deborah Crowder for not cooperating with NCAA investigators will probably not be chargeable to the institution since neither was in UNC's employment or sphere of influence when they failed to cooperate. If the COI does wind up handing down sanctions for UNC, it ought to be according to the pre-2012 penalty guidelines since the institution's only liability is for actions occurring prior to that. The only infractions alleged after that date have been the non-cooperation charges against Nyang'oro and Crowder.
Note: I'd also like to point out the error casual readers (like Jay Bilas) have made that the IAC "overruled" the COI's decision. It did not, even though it does have that authority. In this case, rather than overruling the COI decision, it disagreed with the application of the rule regarding penalties and sent the case back to the COI for the panel to reconsider. But the COI was not under obligation to defer to the IAC in this instance, and in fact it did not. The COI upheld its ruling on the application of penalties, changing penalties for reasons not considered in the remanding.
And just for general information, here are the members of COI panel and the IAC panel that considered the Hawaii infractions case.
Committee on Infractions:
Greg Christopher, Chief Hearing Officer
Britton Banowsky
Michael Adams
Carol Cartwright
Bobby Cremins
Joel Maturi
Jill Pilgrim
Infractions Appeals Committee:
David Williams, chair
Ellen Ferris
W. Anthony Jenkin
