Of all the ongoing NCAA investigations, none is more vexing than the Oregon case. Miami is a basic extra benefits case, as far reaching as it appears to be. UNC’s smoldering academic scandal is a bit tougher for the NCAA to deal with given the greater deference to institutional autonomy in that area, but the case is only one or two key findings away from getting very simple.
Oregon’s Case is Different
If you forgot, Oregon’s case involves the purchase of a $25,000 recruiting service subscription by the football team from Willie Lyles, who was connected to a number of prospects, a couple of which eventually enrolled at Oregon. Lyles then allegedly only sent profiles of recruits long after the fact at the request of Oregon’s coaches to justify the payments.
Oregon’s case is the first major investigation involving a relatively new version of NCAA bylaw 13.14.3. The bylaw defines which recruiting services schools may subscribe to. To be permissible, a recruiting or scouting service must:
- Be publicly available to all institutions at the same published price;
- Publish information at least four times per year;
- Identify the geographic scope and provide broad-based coverage of that geographic area;
- Provide individual analysis beyond demographic information or rankings; and
- Provide access to samples or previews of the information.
The changes to Bylaw 13.4.3 were originally started for basketball. The scam was that someone connected to a prospect, like a coach or handler, would offer a “recruiting service” which was normally little more than rankings, heights and weights, or even edited or copied information from legitimate recruiting services. To get access to the prospect(s), coaches would have to buy a copy of the recruiting service, which may run into the thousands of dollars. Better access or more favorable influence could sometimes be bought by purchasing (or having boosters purchase) multiple copies of the services.
The rule was expanded to all sports for a while but now applies just to football and basketball. It is an odd rule because it does not prohibit exactly what it is trying to combat: institutions buying subscriptions to recruiting services to gain access to prospects. Instead, the rule attempts to separate legitimate recruiting services from faux ones designed as a front for payoffs from coaches. It is a highly detailed and technical rule aimed at a fuzzier problem.
What it means for Oregon is that even if the NCAA never proves that Oregon’s coaching staff intended the purchase of Lyles’ recruiting service to get them access to prospects or had much contact with Lyles, the school could still face severe penalties. All the enforcement staff might need to prove is that Oregon paid for a recruiting service that did not meet the requirements. The fact that prospects connected to the owner of the recruiting service enrolled at Oregon would be an aggravating factor.
Legally, the Case Sets up Poorly for Oregon. Politically, the Case Sets up Even Worse
Oregon’s alleged violation can easily be cast as something most people want to stop: paying off a third party in order to secure a recruit’s enrollment. There’s an increasingly vicious debate about where that money should go (nowhere vs. to the athlete himself) but almost no one wants much or any of it to go to some adult who latches on.
Severe penalties based on no evidence of Oregon’s intention in the case would be a form of strict liability. Except the arguments against strict liability do not apply in this case because the NCAA changed the rules once again. Now the NCAA approves all football and basketball recruiting services. It would not settle all potential issues with recruiting services, but it certainly gives schools a much clearer charge than finding out and monitoring whether recruiting services are compliant.
On the flip side, letting Oregon off with a slap on the wrist would potentially gut a needed rule (albeit one that could be improved upon) in an area where regulation is needed. It would provide arguments to both schools who check the NCAA database and never anything else as well as schools who “accidentally” subscribe to services not approved by the NCAA. The message sent by severe sanctions on Oregon plus the new rule changes would be “We are serious about this type of violation, but we are trying to help you out.” It’s a good mix of vengeance (on Oregon) and mercy (on everyone else).
More importantly, a harsh punishment for Oregon continues what should be seen as the bigger lasting impact of the Penn State sanctions. For a long time, many have argued and the NCAA has often entertained the idea that no one should be the first or last one to be punished for anything. Hence in the Penn State the solution that many argued of letting Penn State off the hook but changing the rules for the next time. Too much of this creates a continual case of always claiming that this time will be the last free ride, that next time we have to get serious. Until the next time becomes this time, except with just enough difference to justify waiting until the next next time.
With Penn State the NCAA (both the members and the national office) said “no more.” There would be an effort to impose sanctions on Penn State, either by consent or unilaterally. If that meant using extraordinary measures, then extraordinary measures would be used. The process of figuring out regular processes for dealing with such a scandal was still going to happen, but not at the expense of letting Penn State escape without punishment.
One of the constant themes in NCAA enforcement has been that the NCAA is always playing catch-up. In reality, the NCAA has closed a big portion of that gap in recent years. Witness this summer’s action against four AAU teams before violations jeopardized the eligibility of prospects as an example.
All of this is not to say that Oregon’s case will be decided by how big of a message the Committee on Infractions would like to send. Rather, it addresses the fact that regular people who work on campuses or in conference offices make these judgments. And in this case, there will be little fear of a public backlash or setting an unworkable standard in the backs of their minds.
That means the case largely comes back to whether there is evidence about some other motive for the payments beyond buying recruiting profiles and whether that even matters if the school is found to have paid a large sum of money for an impermissible service. And while the NCAA cannot simply rely on media reports, what has been reported does not look good for Oregon.