ANALYSIS
Confronted with allegations of more than 100 violations of NCAA rules by its men’s basketball team in the mid-1970s, the University of Minnesota did the then-unthinkable.
It self-imposed some penalties before it faced its judge and jury, the powerful NCAA Committee on Infractions.
By the time the University of Hawaii gets its day in NCAA court on what has, so far, been a four-month investigation, experts in the field of college sports law say, UH is expected to do likewise to some extent.
In the 38 years since the Gophers were credited with making enforcement history, "it is a very rare case for a Division I institution not to self-impose at least some penalties when there has been wrongdoing," said Gary Roberts, a sports law specialist and dean emeritus of Indiana University’s McKinney School of Law. "If it (failing to self-impose) has happened recently, I’m not aware of it."
Rodney Uphoff, a University of Missouri law professor and member of the committee on infractions, declined to directly address UH’s situation but said, "As a general matter, the COI does weigh a school’s cooperation with the enforcement staff in making any penalty decision and certainly considers the school’s self-imposed penalties as well."
Depending upon the circumstances, schools have leveled self sanctions by suspending players and suspending or firing coaches or administrators deemed to have been involved or had oversight when violations have taken place. They’ve also voluntarily cut back on practice hours, reduced scholarships or removed themselves from conference tournament or postseason consideration — all prior to appearing before the committee on infractions, which is responsible for meting out punishment to offenders.
It was an approach UH did not take in its 1977 case, apart from reassigning basketball coach Bruce O’Neil to an assistant athletic director’s position, after the athletic program was cited for 77 violations. Despite cooperation, the sanctions included a two-year probation that hobbled the men’s basketball program for much of the next decade.
Athletic director Ben Jay declined comment last week on whether UH is currently considering self-imposing penalties.
UH engaged the Alabama law firm of Lightfoot, Franklin & White on Aug. 5 to help with the results of the ongoing NCAA investigation. Its lead attorney, William H. King III, also declined comment.
But by hiring a firm that has handled numerous high-profile NCAA cases, including the eligibility of Heisman Trophy winners Johnny Manziel and Cam Newton, experts in the field say UH is following a familiar and prudent strategy. "Hiring a firm like that, which specializes in these cases, is a step that looks good in the eyes of the NCAA," said Richard Karcher, a professor and specialist in sports law at Eastern Michigan University. "By hiring a third party to investigate your situation it shows you are taking it seriously."
With so much in ticket and television revenue riding on the outcome of infraction cases, college sports law and NCAA infractions cases have become a lucrative field.
"These firms have carved out quite a niche for themselves," Karcher said. Some of the practicioners, such as Michael Glazier of Kansas City-based Bond, Schoeneck & King, are referred to as "cleaners" for their ability to tidy up even the messiest infraction cases and limit the severity of sanctions.
They don’t come cheap, with tabs sometimes running into the hundreds of thousands of dollars, depending on the complexity and duration of the case. Michigan, for example, paid Lightfoot, Franklin & White $600,000 for its help in 2009-10, while Auburn anted up $160,000.
UH, which contracted with LFW seven months after discovering the alleged violation that apparently touched off the investigation, an altered certified bank form, has an agreement calling for a $20,000 ceiling, plus travel and expenses. King is to be paid at a rate of $275 per hour.
UH’s agreement, which was obtained by the Honolulu Star-Advertiser under the state’s open records law, calls for the firm to investigate, evaluate probable results and make recommendations for resolution strategies. The contract said that includes, "summary disposition," which would mean UH and the NCAA agreeing on a penalty before a hearing.
"There is a lot of work involved in doing an exhaustive investigation and having a firm that is skilled and expert in handling these kind of cases is essential," Roberts said. "It is a matter of efficiency and, secondly, you can have a lot riding on the outcome. Well, these firms have people who used to work for the NCAA or they know people on the enforcement staff or committee, so they have connections that give you credibility. You’re buying not only their expertise but their connections and credibility as well."
For example, King works extensively with Gene Marsh, who served for nine years on the committee on infractions and was its chairman from 2004 to 2006.
In a 2012 case held up as a standard by the committee on infractions, the NCAA lauded the University of South Carolina and LFW’s approach to its investigation and self-imposed penalties.
The case largely centered on impermissible benefits for athletes and a failure to monitor its athletic program. The committee accepted the school’s self-imposed penalties, including a reduction of six football scholarships and cuts in number of recruiting visits.
"This has been one of the best cases I have seen from a process standpoint," chairman Britton Banowsky said in a statement. "In this case, it was obvious to the committee that the university wanted to get to the truth."
Michael Buckner, whose Florida firm has specialized in sports law for 18 years, said, "You want the committee to look at what you have done and see that you have taken advantage of the process and realistically addressed the situation."
Finding the appropriate degree of punishment "is a balancing act," Buckner said. "You don’t want to over-penalize yourself or under-penalize yourself. You want to make sure the penalties are in line with what the committee has done in the past. If you under-penalize yourself, you are opening the door for the committee to come and say you didn’t take the process seriously and (inflict) even heavier penalties."
Buckner calls it searching for the "the sweet spot" when taking a bitter medicine.
