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FOR RELEASE: CONTACT:February 20, 2009 Josephine R. Potuto, former chairNCAA Division ICommittee on InfractionsUniversity of Nebraska, Lincoln
INDIANA UNIVERSITY, BLOOMINGTONSUPPLEMENTAL PUBLIC INFRACTIONS REPORTON A REQUEST FOR RECONSIDERATIONBYFORMER ASSISTANT COACH A
On November 25, 2008, the NCAA Division I Committee on Infractions published InfractionsReport No. 287 which set forth findings of major violations by Indiana University, Bloomington, itsformer head men's basketball coach (the "former head coach") and former assistant men's basketballcoach ("former assistant coach A"). Prior to his employment at the institution, the former head coachhad committed violations at the University of Oklahoma. In that case the committee imposedpenalties affecting the athletically related duties of him and his staff at any NCAA institution thatemployed him. These penalties were adopted by the institution pursuant to its employment of theformer head coach.Among the findings of violations made by the committee in the Indiana case were that formerassistant coach A violated the penalties imposed in the Oklahoma case by making 94 prohibitedphone calls to prospects and their parents and legal guardians (Finding B-1-a), by engaging in 11prohibited three-way phone calls with the former head coach and prospects and a parent (Finding B-1-b), and by engaging in at least five prohibited "handoff" phone calls with the former head coachand prospects and others (Finding B-1-c). The committee further found that former assistant coachA made 30 phone calls to prospects and others that violated NCAA recruiting legislation (Finding B-2). 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 providingfalse or misleading information.On November 25, 2008, the day of the release of the public report, former assistant coach A madecontact with the committee to object that the committee made a finding of unethical conduct that wasnot alleged by the enforcement staff. By letter of December 19, 2008, former assistant coach A madea formal request for reconsideration of Finding B-4 and the committee penalties imposed on him. Ashe correctly states, to make a finding of unethical conduct not formally alleged by the enforcementstaff, the committee should first give notice of the possibility of such a finding and afford an affectedparty the opportunity to respond.
 
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Indiana University, BloomingtonPublic Supplemental ReportFebruary 20, 2009Page No. 2__________Pursuant to the request by former assistant coach A, the committee considered two objections toFinding B-4. First, former assistant coach A challenged a committee finding of unethical conductbased on all the prohibited phone calls included in Finding B-1. The enforcement staff allegedunethical conduct regarding the prohibited phone calls in Findings B-1-b and -c, but not Finding B-1-a. Second, former assistant coach A argued that the committee found that he acted unethically byproviding false and misleading information during the investigation when the enforcement staff didnot 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 conductregarding the prohibited telephone calls listed in finding B-1-a. The committee finding that formerassistant coach A committed unethical conduct in his commission of all the prohibited phone callsset forth in Finding B-1 is error to the extent that Finding B-1 includes the phone calls listed inFinding B-1-a.With regard to his second objection, however, the language of Finding B-4 is correct as it alludesneither to an investigation nor investigators but states only that former assistant coach A providedfalse or misleading information. Because there is language in the body of the original publishedIndiana 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 beclear as to the scope of the finding. The revised language of Finding B-4, as today determined by thecommittee, reads as follows:From May 25, 2006, through May 24, 2007, former assistant coach A acted contraryto NCAA principles of ethical conduct when he (a) knowingly violated committeepenalties 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 thegenerally recognized high standard of honesty normally associated with the conductand administration of intercollegiate athletics by providing false or misleadinginformation to the institution by submitting false telephone recruiting calldocumentation on multiple occasions.Former assistant coach A set forth three instances in the Indiana infractions report where thecommittee wrote that he made "false or misleading" statements "during the investigation" or "toinvestigators." The committee also described two of these instances as constituting unethicalconduct. (The committee made three revisions to the published report prompted by objections fromformer assistant coach A. These are set forth in Appendix A.) Although none of these statementswere part of the formal Finding B-4 unethical conduct, the committee nonetheless disavows them aserror based on the allegations formally made. The committee underscores, however, that its decisionin this case is not based on the characterization of the statements as "false or misleading;" suchcharacterization, without more, is descriptive of lack of credibility and not a finding of a violation.
 
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Indiana University, BloomingtonPublic Supplemental ReportFebruary 20, 2009Page No. 3__________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 determiningpenalties the committee improperly relied both on that portion of the unethical conduct findingrelated to Finding B-1-a phone calls and on a finding that former assistant coach A acted unethicallyby providing false or misleading information during the course of the investigation. In this lattercontext, former assistant coach A claimed that the committee erred not only in finding a violation notalleged, but that it also erred on the merits of the finding as the enforcement staff determined that hehad 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 findingbased on that conduct is procedural error. To the extent that committee penalties were influenced bysuch a finding, former assistant coach A of course is entitled to committee reconsideration of therecord and the penalties assessed. He is incorrect, however, in claiming that an assessment by theenforcement staff as to the nature and extent of a party's cooperation must be conclusive on thecommittee. Equally, he is incorrect that the record fails to support a committee factual findingcontrary to that which may have been made by the enforcement staff. The committee exercisesindependent judgment based on the full record before it in reaching its findings of fact, includingthose of credibility.In its reconsideration, the committee reviewed the record in the case, including its assessment of thecredibility of former assistant coach A and other evidence in the record. The committee conductedthis 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 werewarranted based on the findings properly made and the evidence before it.After reconsideration, what the committee stated in the Indiana infractions report remains applicableto the conduct of former assistant coach A, except as modified above. Upon reconsideration of therecord, and
 
particularly his statements at the hearing
,
the committee continues to find that formerassistant coach A lacks credibility. The committee found, and finds, that former assistant coach A'sviolations are serious and warrant the imposition of significant penalties. Nonetheless, and to assurethat the penalties imposed on former assistant coach A properly are based on formal allegations andon findings of conduct and credibility independent of any potential inclusion of informationimproper for committee consideration, the committee now revises the penalties imposed on formerassistant coach A as follows:
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