Indiana Supplemental Report

FOR RELEASE: February 20, 2009

CONTACT: Josephine R. Potuto, former chair NCAA Division I Committee on Infractions University of Nebraska, Lincoln

INDIANA UNIVERSITY, BLOOMINGTON SUPPLEMENTAL PUBLIC INFRACTIONS REPORT ON A REQUEST FOR RECONSIDERATION BY FORMER ASSISTANT COACH A

On November 25, 2008, the NCAA Division I Committee on Infractions published Infractions Report No. 287 which set forth findings of major violations by Indiana University, Bloomington, its former head men's basketball coach (the "former head coach") and former assistant men's basketball coach ("former assistant coach A"). Prior to his employment at the institution, the former head coach had committed violations at the University of Oklahoma. In that case the committee imposed penalties affecting the athletically related duties of him and his staff at any NCAA institution that employed him. These penalties were adopted by the institution pursuant to its employment of the former head coach. Among the findings of violations made by the committee in the Indiana case were that former assistant coach A violated the penalties imposed in the Oklahoma case by making 94 prohibited phone calls to prospects and their parents and legal guardians (Finding B-1-a), by engaging in 11 prohibited three-way phone calls with the former head coach and prospects and a parent (Finding B1-b), and by engaging in at least five prohibited "handoff" phone calls with the former head coach and prospects and others (Finding B-1-c). The committee further found that former assistant coach A made 30 phone calls to prospects and others that violated NCAA recruiting legislation (Finding B2). Finally, the committee found that former assistant coach A committed unethical conduct (Finding B-4) by the knowing commission of the violations set forth in Finding B-1 and by providing false or misleading information. On November 25, 2008, the day of the release of the public report, former assistant coach A made contact with the committee to object that the committee made a finding of unethical conduct that was not alleged by the enforcement staff. By letter of December 19, 2008, former assistant coach A made a formal request for reconsideration of Finding B-4 and the committee penalties imposed on him. As he correctly states, to make a finding of unethical conduct not formally alleged by the enforcement staff, the committee should first give notice of the possibility of such a finding and afford an affected party the opportunity to respond.

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Pursuant to the request by former assistant coach A, the committee considered two objections to Finding B-4. First, former assistant coach A challenged a committee finding of unethical conduct based on all the prohibited phone calls included in Finding B-1. The enforcement staff alleged unethical conduct regarding the prohibited phone calls in Findings B-1-b and -c, but not Finding B-1a. Second, former assistant coach A argued that the committee found that he acted unethically by providing false and misleading information during the investigation when the enforcement staff did not allege unethical conduct on this basis and he asserts that the charge is factually untrue. Former assistant coach A is correct that the enforcement staff did not allege unethical conduct regarding the prohibited telephone calls listed in finding B-1-a. The committee finding that former assistant coach A committed unethical conduct in his commission of all the prohibited phone calls set forth in Finding B-1 is error to the extent that Finding B-1 includes the phone calls listed in Finding B-1-a. With regard to his second objection, however, the language of Finding B-4 is correct as it alludes neither to an investigation nor investigators but states only that former assistant coach A provided false or misleading information. Because there is language in the body of the original published Indiana infractions report regarding the conduct of former assistant coach A during the investigation, however, the committee concludes that it is appropriate to revise the Finding B-4 language to be clear as to the scope of the finding. The revised language of Finding B-4, as today determined by the committee, reads as follows: From May 25, 2006, through May 24, 2007, former assistant coach A acted contrary to NCAA principles of ethical conduct when he (a) knowingly violated committee penalties set forth in Infractions Report No. 250 and applicable to the institution (Findings B-1-b and B-1-c) and (b) failed to deport himself in accordance with the generally recognized high standard of honesty normally associated with the conduct and administration of intercollegiate athletics by providing false or misleading information to the institution by submitting false telephone recruiting call documentation on multiple occasions. Former assistant coach A set forth three instances in the Indiana infractions report where the committee wrote that he made "false or misleading" statements "during the investigation" or "to investigators." The committee also described two of these instances as constituting unethical conduct. (The committee made three revisions to the published report prompted by objections from former assistant coach A. These are set forth in Appendix A.) Although none of these statements were part of the formal Finding B-4 unethical conduct, the committee nonetheless disavows them as error based on the allegations formally made. The committee underscores, however, that its decision in this case is not based on the characterization of the statements as "false or misleading;" such characterization, without more, is descriptive of lack of credibility and not a finding of a violation.

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Here, however, the committee described these statements as constituting unethical conduct. In his December 19 request for reconsideration, former assistant coach A alleged that in determining penalties the committee improperly relied both on that portion of the unethical conduct finding related to Finding B-1-a phone calls and on a finding that former assistant coach A acted unethically by providing false or misleading information during the course of the investigation. In this latter context, former assistant coach A claimed that the committee erred not only in finding a violation not alleged, but that it also erred on the merits of the finding as the enforcement staff determined that he had cooperated fully with its investigation. Former assistant coach A was neither given notice nor an opportunity to be heard on the question of his conduct during the investigation. He is correct, therefore, that any unethical conduct finding based on that conduct is procedural error. To the extent that committee penalties were influenced by such a finding, former assistant coach A of course is entitled to committee reconsideration of the record and the penalties assessed. He is incorrect, however, in claiming that an assessment by the enforcement staff as to the nature and extent of a party's cooperation must be conclusive on the committee. Equally, he is incorrect that the record fails to support a committee factual finding contrary to that which may have been made by the enforcement staff. The committee exercises independent judgment based on the full record before it in reaching its findings of fact, including those of credibility. In its reconsideration, the committee reviewed the record in the case, including its assessment of the credibility of former assistant coach A and other evidence in the record. The committee conducted this review to determine whether and the extent to which its penalties were based on the inclusion of the B-1-a phone calls in the unethical conduct finding as well as whether its factual findings, including those of credibility, were supported by "information presented to it that [is] credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs." NCAA Bylaw 32.8.8.2. The committee reviewed this matter to be sure that its penalties were warranted based on the findings properly made and the evidence before it. After reconsideration, what the committee stated in the Indiana infractions report remains applicable to the conduct of former assistant coach A, except as modified above. Upon reconsideration of the record, and particularly his statements at the hearing, the committee continues to find that former assistant coach A lacks credibility. The committee found, and finds, that former assistant coach A's violations are serious and warrant the imposition of significant penalties. Nonetheless, and to assure that the penalties imposed on former assistant coach A properly are based on formal allegations and on findings of conduct and credibility independent of any potential inclusion of information improper for committee consideration, the committee now revises the penalties imposed on former assistant coach A as follows:

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1.

The period in which the show-cause order is in effect will be 30 months from November 25, 2008, rather than three years. The period will end, therefore, on May 24, 2011, (rather than on November 24, 2011, as originally imposed).

2.

The period during which Penalty 13-(f) will be in effect is November 25, 2010, to May 24, 2011, (rather than to November 24, 2011, as originally imposed).

3.

Former assistant coach A must attend the 2009 and 2010 NCAA Regional Rules seminars (but not, as originally imposed, the 2011 Regional Rules seminar).

All other penalties set forth in Infractions Report No. 287 remain in effect. NCAA COMMITTEE ON INFRACTIONS Eileen K. Jennings Alfred J. Lechner, Jr. Edward (Ted) Leland Gene A. Marsh Andrea (Andi) Myers James Park, Jr. Josephine (Jo) R. Potuto, chair Dennis E. Thomas

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APPENDIX A Changes to Public Infractions Report No. 287, Indiana University, Bloomington The changes set forth below have been made to the public infractions report available on the NCAA website; the underlined language was in the original public report and has been deleted. 1.

Page 6, first full paragraph.

Both coaches violated the principles of ethical conduct not only by their intentional commission of the phone violations but by making false and misleading statements during the investigation. The intentional violations by the former head coach and his staff also led to findings against him of failure to monitor his program and failure to promote an atmosphere of compliance within it. 2.

Page 33, paragraph that precedes Finding B-5.

For the above reasons, along with the information provided in the full record of this case and the discussion provided throughout this report, the committee finds that former assistant coach A acted unethically in that he engaged in prohibited phone calls with knowledge that he was violating committee penalties and in that he failed to submit accurate telephone logs and statements. Finally, the committee finds that his statements in the course of the investigation were intended both to conceal his commission of violations and to conceal that he acted with knowledge. That his statements were false or misleading is incontrovertible. That he acted unethically is equally incontrovertible. 3.

Page 47, Penalty 13, first paragraph. 13.

Former assistant coach A committed telephone violations that both were prohibited under fundamental and basic NCAA telephone recruiting legislation as well as violations of three separate committee penalties set forth in the Oklahoma report. Conduct constituting violations of several different rules or penalties is more serious than equivalent conduct that violates one rule. Former assistant coach A committed these violations intentionally and with knowledge that they were violations. Violations so committed are more serious than the same violations committed inadvertently or with lack of knowledge that they are violations. Former assistant coach A committed the violations with full knowledge that the men's basketball program was under heightened scrutiny, particularly with regard to violations involving telephone calls. His explanations for the telephone calls, particularly the three-way and handoff calls, were both inconsistent and unbelievable. In an

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atmosphere requiring heightened scrutiny to compliance matters, former assistant coach A routinely signed forms attesting that he did not use home phones in recruiting while at the same time he was making home recruiting telephone calls. He also provided false and misleading information to investigators. For these and other reasons, more fully set forth throughout this report, the committee imposes a threeyear period beginning on November 24, 2008, and ending on November 24, 2011, during which, as set forth in (c) through (i) below, it restricts the athletically related duties of former assistant coach A at an employing institution.