There’s a system and precedents, but predicting what punishments Tennessee will receive is still anyone’s guess — including the Committee On Infractions'
Former Tennessee coach Bruce Pearl, left, accepts a UT jersey from former UT president John Petersen while Pearl is introduced as the Vols basketball coach at a news conference in March 2005 at Thompson-Boling Arena.
The NCAA never has seen a major infractions case like the one that has University of Tennessee officials, Bruce Pearl, Lane Kiffin and a number of others headed to Indianapolis for next week's long-awaited meeting with the Committee on Infractions.
The phone calls. The barbecue. The lies. Orange Pride. The self-imposed sanctions. The bump. The dismissals.
No case in the NCAA database has all of these particular moving parts wrapped into one all-encompassing enterprise.
At least that's what the COI, a group comprised of law professors, active attorneys, league executives and athletic administrators from across the country, will lead you to believe when it finally hands out its penalties to the various parties involved.
"The committee decides penalties case-by-case," according to the NCAA's recently revamped enforcement website. "Each case is unique, and applying case precedent is difficult (if not impossible) because all cases are different. Each case has its own aggravating and mitigating factors, and the committee considers both sides in assessing penalties."
Michael Buckner, a prominent Florida-based attorney who has represented coaches and universities in NCAA infractions cases, doesn't see it that way.
In response to the NCAA's approval of recommendations presented by a task force to clarify roles of its infractions and appeals committees, Buckner recently sent a letter with his own recommendations to college sports' governing body. Most notably, Buckner raised concerns about the task force's recommendation to inform the NCAA's institutions that "Committee on Infractions and Infractions Appeals Committee reports in prior cases are not binding in future cases."
Potentially violating institutions' rights in an "unlawful, arbitrary or malicious manner" could lead to intervention from outside courts, Buckner wrote.
"The Task Force's recommendation may lead to widely inconsistent and arbitrary decisions - which could be seen by the membership, media and the public as the committees using favoritism for certain schools or coaches," Buckner wrote.
The appeals committee's recent decision with the University of Southern California football program to uphold a slew of severe penalties, which included massive scholarship reductions and a two-year postseason ban, did just what Buckner predicted. A number of prominent national columnists slammed the NCAA for blatantly "sending a message" at the Trojans' expense, while USC president C. L. Max Nikias said he was concerned that "the historical value of case precedent and the right to fair process in the NCAA adjudicative process" had been "substantially eroded."
"They want to give these committees wide discretion," Buckner said. "It allows them to basically treat the one university differently from another. I don't think that's fair."
What's to be expected?
So what kind of treatment should be expected for UT, pinpointed specifically in just one major violation for failure to monitor the phone calls of its former men's basketball staff?
Will it mimic the unprecedented penalties handed down on Southern Cal? Or will it be viewed as a "slap on the wrist" to outsiders like the recent verdicts passed with the University of Michigan, for its violations in football, or the University of Alabama, for its department-wide violations for a text book scandal?
"I don't think there's ever been an institution that thought that their case needed to be the one through which a message was sent," said Mike Ermert, a Birmingham (Ala.)-based attorney who represented Alabama in a 1994 case against the NCAA. "It's often frustrating for an institution that feels like it's been punished for somebody else down the road even though no one has ever felt that kind of penalty with the same kind of infractions."
Pearl could potentially see his future as a college basketball coach hindered by a lengthy show-cause penalty. Or, he could get off with a relatively light sentence like University of Connecticut men's basketball coach Jim Calhoun, who recently was hit with a three-game suspension for his involvement in a major violations case.
Kiffin, who already is hampered by the sanctions he inherited upon taking over at USC, could see his life as a coach become even more difficult. Penalties stick with the coach from one job to the next and can vary from minor annoyances to full-blown inhibitors.
The 10 members of the COI, who currently are poring over the exhaustive details of UT's response to the 12 major violations it received in February's Notice of Allegations, will have to balance all sorts of variables when they ultimately decide how to reprimand the guilty parties.
"I think sometimes institutions are blindsided by the penalties they receive because they look at what they consider to be other, similar cases and they didn't see the same level or type of penalties," Ermert said. "Those issues can often be so different from one case to the next.
"I think it has troubled the committee and made it difficult for them to come up with a set of guidelines to follow in assessing penalties."
A guideline - not a manual - does, in fact, exist.
The NCAA typically tailors its penalties - which should be "sufficient to deter an institution from breaking the rules again and should remove any competitive advantage that may have been gained by cheating to the violations," according to the NCAA's website - to the offense that was committed. Because none of UT's violations involved ineligible players seeing the field, one of the NCAA's most common, retrospective punishments - the vacation of wins from a previous season or seasons - likely is off the table.
Also out of consideration is a TV ban. A posh penalty in the 1980s and early 1990s, TV bans have all but vanished because of the difficulties encountered with new, billion-dollar league contracts. The penalty hasn't been used in Division I since 1996, when Maine hockey was slapped with it.
"It would affect not just one school, but multiple schools," Buckner said.
The only given is probation, which is all but standard in any major violations case. A public reprimand and censure also are commonplace.
Where the committee will have to use its discretion most is in the department of scholarship reductions and recruiting restrictions.
The latter is inevitable because UT feasibly gained an advantage in recruiting in both men's basketball and football. Both the former football and men's basketball staffs made impermissible phone calls to prospective student-athletes. The controversial barbecue with unofficial visitors at Pearl's home and the "bump" violation committed by Pearl and assistant Tony Jones with a prospect just four days after UT's news conference to announce it received a Notice of Inquiry from the NCAA also fall under the recruiting umbrella.
The NCAA has the power to limit official visits, prevent coaches from recruiting off campus and hinder schools during initial contact periods when phone calls are essential. The lengths and strengths of those respective penalties are up to the committee members, who can use previous cases as guidance for the one currently in front of them.
Or they can't.
"When I've represented universities and coaches in the past, I pretty much could guess or estimate within some reasonable certainty on the vast majority of the penalties and where they may come down," Buckner said. "Within the last year or two, that's been increasingly difficult to do so."
The NCAA typically follows a two-for-one formula when it takes away scholarships. For every one player involved in a violation, two future scholarships will disappear.
Because UT's violations largely involved its coaches and high school players, it's unclear how the NCAA will justify applying this type of penalty, if it chooses to do so. According to the multiple parties involved, scholarship reductions are very much in play.
Postseason bans rarely are applied, but also remain a possibility for UT men's basketball. At a Tipoff Club meeting last month, new coach Cuonzo Martin said the Vols can "weather the storm" as long as it doesn't receive a postseason ban because of the unquantifiable stigma that comes with it.
"That's one of the things (recruits) constantly talk about," Martin said Tuesday. "We sell them and sell them and now it's a matter of 'OK, coach, once we hear this, then we can make some moves.' And I think it will really help us, one way or the other, to solidify some things."
According to NCAA protocol, "language" during enforcement proceedings advises that "the interests of innocent individuals should be taken into account when imposing penalties."
At some point, though, someone and something has to be punished.
"The simple fact is that the punitive nature of NCAA-imposed sanctions make it unavoidable that the penalties imposed on institutions as a result of their involvement in major infractions will have some negative effect on innocent student-athletes," the NCAA writes.
How harshly UT, as an institution, is hit with penalties ultimately will come down to how culpable the department is viewed for the actions of Pearl, who was fired in March, and Kiffin, who resigned in 2009 after one season with the Vols, and their respective staffs.
Josephine Potuto, a Nebraska law professor who served on the COI from 2000-08, said an institution's separation from a coach who committed violations is considered a "corrective action."
That UT waited through the 2010-11 basketball season before it fired Pearl, rather than do it immediately after it learned he and his assistants misled NCAA investigators during their initial interviews, adds a wrinkle to how the COI will view the strength of UT's "corrective action."
"It goes to how you're going to insure it doesn't happen again," Potuto said. "It is imperative to the assessment of the penalty.
"Nobody expects perfection. If you have a cheater, he's going to be smart enough to get away with it for a while. That's just the way it is. The issue is should the school have known and it's not should the school have known if it had bad policies in place, it's if they have the right appropriate policies in place, would it have picked it up?"
Charges of unethical conduct and show-cause penalties go hand in hand, so prior precedent would indicate that Pearl will be kept away from college basketball for at least a season or two.
His assistants also could be subject to the penalty, though it's all but certain their sentences would not be as severe as Pearl's. Of the past 20 cases that involved an unethical conduct charge, all but one resulted in a show-cause penalty.
How the COI determines the length of a show-cause penalty is much like how it determines its other penalties. Precedent can be utilized as guidance, but nothing says it has to be followed.
"We make the best judgment based on the information," Potuto said. "It's how culpable you think the actor was and how severe the violations were."
A tough, thankless job
Even though he recently has hammered at some of the Committee on Infractions' and Infractions Appeals Committee's flaws, Buckner conceded that, more often than not, the penalties that come out of these hearings are fair and justified.
Ermert said he is sympathetic to the committee members, whom NCAA president Mark Emmert described as the "ultimate volunteers" because they're not paid for their services, because the violations they're penalizing against now differ significantly from those of a decade ago.
"You've got new technology that's impacted the way people communicate and the way people get information," Ermert said. "That has resulted in the NCAA having to address areas that 10 years ago were not even contemplated because the opportunities to have violations in those type of circumstances didn't even exist."
Emmert recently suggested that the NCAA break up its violations into five different categories, a move that, in theory, would provide clearer precedents during the penalty phase. Currently, violations fall into just two categories: major and secondary.
"I do worry we have too much of a bivariate model," Emmert said. "I personally would like to see whether we can have two, three or five different sort of categories and maybe that would make the cases go a little more expeditiously."
The NCAA is expected to roll out numerous changes to its enforcement infrastructure later this month.
That, of course, doesn't do anything for UT and its former coaches, who will make the transition from one waiting game to another after the hearing.
"We'll have to go see," UT athletic director Mike Hamilton said this week. "Certainly we have thoughts of what it might look like but you don't know until you go through the process and see what might come out."