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On October 19, 2012, a Panel of five members of the Board of Trustees (BOT Panel) of the Utah High School Activities Association (UHSAA or Association) was convened to hear an appeal of a decision of the Panel of the Executive Committee (EC Panel) of the Association. The EC Panel held a hearing on October 17, 2012, in which it took evidence and heard argument from East High School and Region 6 regarding East’s admission that four ineligible players had participated in one or more contests over the course of the 2012 Football Season. East admitted in the hearing that at least one ineligible player had participated in every contest. The EC Panel adopted some of the Region 6 recommendations but used its discretion under the By-Laws to apply the forfeiture penalties to every contest in which any of the ineligible players participated. The EC Panel decided, in part, as follows: “ East must forfeit any contest in which it used an ineligible player. The Panel upholds the fine of $1500.00 to the school but vacates the other penalties including the suspension of the head football coach.” East has appealed that decision. East’s argument at the appeal included a summary of the lives of the four ineligible players, the football coach’s statement of affection for his team, letters of support for “the students” from some interested politicians and the Salt Lake City School District and a statement from East’s Principal. The Chair of Region 6 also spoke out against the use of forfeitures suggesting that some Regions use the penalty and others do not. In each case, the essence of the argument was that “innocent students” should not be punished for the mistakes of the administrators in whose legal and moral care they have been placed. While this BOT Panel sympathizes with the difficulties outlined for the four students, this matter is not really about them as individuals. Indeed, the discussion of them was irrelevant to our decision. They were and will remain ineligible as part of our penalties. Moreover, East’s attempt to shift the focus from its own wrongdoing to the plight of the students is unpersuasive and improper. As the EC Panel rightly concluded, “East’s abdication of . . . responsibilities constituted a severe lack of institutional control.” While East’s argument focused on the four players, it was not asking this BOT Panel to rule on their eligibility. Rather, it was asking us to relieve all other eligible players from the harsh consequences of East’s utter failure to adhere to the By-Laws. These were not mere “clerical errors,” despite East’s attempt to minimize its own recklessness. When questioned, East admitted that the errors here were not clerical but wholesale failures to follow the rules. There were at least four admitted instances in which students who should have submitted paperwork for a hardship waiver to establish eligibility were purportedly told by the AD that they did not need to do so. In each case, the excuse given in the hearings for this failure was based on untenable and unreasonable interpretations of the rules. These notions were so plainly wrong that no one, including any administrator, could have thought them correct. This was a pattern of indulgence and indifference. It was also a scheme that intentionally
violated the Association’s rules. The Association requires that the coach, the AD, the Principal and others take affirmative action to assure no ineligible player takes the field or court. In practice, the head coach is the person most likely to recognize and report new and possibly ineligible players. Clearly, under the Association’s rules, the East coach continued to have this duty, but the East principal circumvented it by suggesting that all the eligibility matters be placed on the shoulders of the AD. Consequently, by order of her principal, she could not expect help from either the principal or the coach. We cannot be certain that it was deliberate, but it set the stage for her to appear responsible for failures that actually belonged to the principal and head coach. These sorts of violations were, in our view, the inevitable result of this mismanagement of the rules by the principal. He is, after all, the official to whom the Association trusts with the responsibility of eligibility. Article 7 of the By-Laws requires:
It shall be the duty and responsibility of the principal or equivalent executive officer of a member school to determine that participants have met all eligibility requirements, to assure institutional control over all athletic participation and to maintain an atmosphere of compliance throughout the school and among the parents and those with a particular interest in the athletic programs of the school, i.e. boosters. Further, because forfeiture is the generally imposed penalty for playing and ineligible player, East’s administration either knew or clearly should have known that this pattern of neglect, indifference and/or willful ignorance vagueness could put all of its participating students at risk of forfeiting all of the football games this season. What happened to East’s eligible players when these violations were uncovered seems to us to have been something the officials at East should and could have foreseen and prevented. Perhaps, more importantly, it is something for which East bears full responsibility. During the argument, it was made clear that East’s AD had not been fired or resigned from her teaching position; she merely resigned as AD. As part of his argument, which included claiming these were “innocent” mistakes, the principal offered to resign if the Association would let East’s players continue into the post season. That offer, while dramatic, was disingenuous. The Association has no power to fire school administrators. This BOT Panel agrees with the EC Panel that forfeiture is the correct penalty for playing an ineligible player and should generally and regularly be used when a team has been found to have played an ineligible player. That said, the Association’s Rules permit this BOT Panel to “impose such penalties or fashion such relief as may be proper.” (By-Laws, Section 6 A) Moreover, while Section 6 has some specific types of penalties, sub-section A further states, “Without limiting the Association’s ability to enforce its rules, these are among the actions the Association may consider.” (emphasis added)
The penalty for forfeiture is found in Section 6 (A)(6) were it says, in relevant part, “In cases of the use of an ineligible player, the non-complying school may forfeit any contest, team title or team championship obtained when such an ineligible player competed as part of the team” (emphasis added) From these provisions, we find that we have the discretion to impose or decline to impose forfeiture in total or in part as we fashion proper relief. We believe that forfeiture is the appropriate sanction but for the rare circumstance where the forfeiture is unduly harsh and would impose not merely a sanction or penalty but an unreasonably burdensome hardship. We believe that in this case, the forfeiture of every contest and the resulting loss of eligibility to compete in the State Football Tournament for the eligible players is too harsh a result on the specific facts before us. Consequently, East shall be required to forfeit six of seven contests in which an ineligible player participated, and it shall forfeit those that will result in East being the fourth and last seed for the post season. We realize that in so doing, we are seeding it ahead of Cyprus, a team with no violations. We do so, in part, because at the end of the season, East had been in first place, with a three team tie for second. Cyprus was a distant fifth. In the exercise of our discretion, we are keeping the first four teams in the Region in the playoffs. Additionally, when the Region considered forfeitures, which would have placed Cyprus in the playoffs, Cyprus voted against those forfeitures. In so doing, Cyprus openly consented to East’s participation in the playoffs despite playing ineligible players.1 We are not unaware that in placing East as a fourth seed, it will be playing teams that otherwise would have faced lower seeds. Accordingly, we will require East to play every post season game on the road and suspend its head football coach for the first three games of the playoffs. We also require East to Forfeit its Region Championship title. We accept in full the findings of the EC Hearing Panel regarding East’s egregious violations of the rules. East willfully turned a blind eye to these problems and evidenced a total lack of institutional control. In so doing, East put the Association in the untenable position of attempting to salvage the eligibility of its students, notwithstanding that their eligibility was threatened not by any act of the Association, but rather by East’s own failures and violations. Whatever the Association did with the problem would bring a firestorm of criticism. Based on the record before this BOT Panel, we unanimously issue the following sanctions and penalties: 1. East shall be required to forfeit six of seven contests, and to forfeit those that will place it in the fourth and last post season position;
1 In an open meeting at the Association, after we had issued an outline of our decision, Cyprus expressed disagreement. It claimed that we had no basis on which to put East in the fourth playoff position and that that our decision seemed to be an arbitrary choice of East over Cyprus. Cyprus described it as the writing of a “magic pen.” As we have explained here, our decision, while disappointing to Cyprus, was based, in part on Cyprus’ on-field record and its consent in the Region meeting to East participating in the State Tournament despite its admitted violations. Cyprus had an opportunity to object to East’s continued participation and chose not to do so, thereby waiving any objection to that participation.
2. East shall forfeit its Region Championship title; 3. In the 2012 football season, East shall have no contest played at home. All games will be played at the home field of the opponent; 4. East’s head football coach shall be suspended from coaching the first three games of the 2012 football post season. In the event East does not play in three games in the post season, this suspension does not carry over in to the 2013 football season; 5. The four ineligible players, who have played nearly an entire season while ineligible, shall continue to be ineligible for the post season; 6. East shall pay to the Association the sum of Six Thousand Dollars ($6,000.00), which amount represents the maximum fine for only four violations, one for each ineligible player. The BOT Panel considers this fine more than reasonable inasmuch as it had the power to fine the school for each infraction of each player. 7. East shall be placed on probation for a period of three years, during which time it shall be subject to eligibility audits scheduled by the Association for each sports season, as well as such other discretionary audits as the Association may deem necessary. The costs of these audits shall be paid by East. The times and frequency of these audits shall be at the sole discretion of the Association. Should any of these audits disclose violation of the Association’s rules, the sport in which such violations are disclosed will be deemed ineligible for post season play. 8. If the BOT Panel is made aware of another proven or admitted violation of rules by the football program, this BOT Panel shall suspend East from whatever might remain of this year’s post season.
s/______________________________ Robert Park, for the BOT Panel
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