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April 18, 2013
Flock Talk: Sticking point
Yesterday, Duck Sports Authority brought you our first part of a response to this newest release. In that piece we discussed those things that were learned from the most recent release of information from the university.
What we did not discuss yesterday was the area of the Summary Disposition Report submitted by the University of Oregon to the NCAA which has created the "sticking point" in this process. There are actually two sticking points to be discussed
STICKING POINT #1
The first point is not really a sticking point for the case in general but rather a sticking point for Oregon fans.
It is well known that Will Lyles worked with several universities, most notably Auburn, LSU, Tennessee and the University of California Berkeley. In addition to taking several prospective student athletes on unofficial visits to several of the schools as well as an official visit to Cal, Lyles is known to have sold his services to LSU and Cal.
In finding number one of the Oregon Summary Disposition Report, the university concedes that Lyles became a representative of the university's athletic interests. The confusing part for Oregon fans is why it is that he is considered a booster for Oregon when the services he provided to other institutions, including impermissible oral reports, were similar in nature.
The oral reports are not what led to Lyles being deemed a booster for Oregon. This is the sticking point that has been confusing to many as it seems that the lines between "booster" and non-booster are confused and distorted based on random differences between universities.
The reality as to why Lyles was deemed a booster for Oregon does not lay in oral reports or even his provision of recruiting or scouting services.
In May 2009 Lyles accompanied an assistant football coach to and during visits to several high schools during evaluations. Gary Campbell was attending the high schools in the Houston area performing player evaluations. The moment that Lyles accompanied any Oregon coach during an evaluation, he crossed the line from recruiting/scouting service provider to representative of athletics interests.
For the last two years, there has been much speculation as to how Lyles could be classified as such and finding number one of the Summary Disposition Report spells it out fairly clearly. By being present with a coach during an evaluation period at the campus of a prospective student athlete, Lyles had become something other than a simple scout or mentor.
To the credit of the NCAA, the enforcement staff recognized that this was not something the institution knew to be a violation at the time.
In his statement to the NCAA, former head coach Chip Kelly acknowledged that he and Lyles traveled in the same car and went into the high schools together. Though Kelly explained that it was with him as a representative of the university and Lyles being used more as a "human GPS" based on Lyles' collective activities up to that point, he became a representative of Oregon's athletics interests.
This is the difference between what Lyles provided to the University of Oregon and what he provided to other institutions. While there were some other travels that caught the eye of the NCAA, and in the case of Lyles receipt of money via a member of the Tennessee coaching staff for an unofficial visit, the wrath of the NCAA, there is one thing Lyles was not found to have done with any other institution; attend evaluations or visit prospects with the coach of the other institution.
As a formal booster, Lyles became subject to different bylaws that are the basis for subparagraphs (a), b), (c), (d) and (e) of Finding No. 1.
The NCAA found that through the relationships Lyles had cultivated, he was able to provide the staff with valuable information that would not typically be included in recruiting/scouting services written reports. The NCAA felt that this resulted in an indirect recruiting advantage in that it freed up time and resources early in the recruiting cycle that could be devoted to targeting prospects more open to considering Oregon.
It was felt that Lyles provided more than a trivial advantage in recruiting by providing oral background information about prospects to the coaching staff as well as serving as a conduit to facilitate communication with prospective student athletes.
So, there is the answer to the questions surrounding why Lyles was considered a booster for the Ducks and not other schools. Unless Lyles was discovered to have accompanied coaches from other institutions to visit recruits, then he will not be considered a booster for those other schools.
While it is difficult, at times, to see this objectively, in reality, the distinct difference between what Lyles' regular services and his accompaniment of coaches to recruit evaluations is a significant difference. Lyles had crossed over into a booster role at that point and any further contact he had with PSA's on behalf of the Oregon staff was impermissible.
The NCAA recognized that the university was unaware of his status as a booster.
STICKING POINT #2
This point is the sticking point between Oregon and the NCAA and centers around Finding No. 2 of the Summary Disposition Report.
What the sticking point boils down to is whether this violation should be considered a major infraction or secondary.
To understand, let us look at the specifics of the facts surrounding this finding.
Finding 2-(a) centers around the use of Elite Scouting Services in 2008 and 2009. During those years, while Elite provided the proper written documentation required under NCAA bylaws, the university also received oral reports from both Charles Fishbein and Will Lyles.
Finding 2-(b) centers on the 2009 use of New Level Athletics owned by Baron Flenory. Much like the university's use of Elite, Flenory's company provided the proper written documentation, but Flenory also provided oral reports to Oregon coaches.
In December of 1987, the NCAA staff made an interpretation that expanded existing legislation surrounding earlier versions of recruiting/scouting services. It had been determined that companies who wanted to provide this service must not do so exclusively with oral reports; there must be written reports. In 1987, this legislation was expanded to say that all oral reports were a violation.
This ruling was obscure and the NCAA acknowledges that the 1987 interpretation was not universally known by the NCAA member institutions.
If Findings 2(a) and 2(b) were the extent of the use of oral reports in recruiting/scouting services by Oregon, the NCAA would have deemed both instances secondary violations.
The problem occurs that in 2010, the NCAA updated this bylaw and contends that this change was well documented and made known to NCAA membership. Finding 2-(c), supported by phone records and statements from involved parties, shows that the university continued to receive oral reports from Lyles while they did not receive any written documentation. Lyles sent an invoice to the University in February of 2010 and was subsequently paid in March. It wasn't until nearly a year later, in January of 2011 that the university requested written reports and it was exactly one year to the day when Lyles finally forwarded the now infamous outdated information.
Based on the combination of all three subparagraphs, the NCAA believes that the violations should be considered major in nature.
"However, when all three subparagraphs are taken collectively, especially when viewed with their nexus to other elements of the casem the enforcement staff believe Finding No. 2 should be considered major in nature."
The university contends two points that should make this a secondary violation rather than a major violation.
The first is that because the initial interpretation was intended to address services that provided only oral reports and has since been expanded in an originally obscure interpretation not well known that makes and oral communication about a prospect a violation even when the coach has also received permitted written reports, then the first two instances should be separated from the third and ruled secondary.
Their second argument, directed mainly at Finding 2-(c) is that the bylaw is actively directed at the service. In Oregon's interpretation of Bylaw 13.14.3, the requirements are set upon the service to provide the documentation and not on the institution to acquire the reports.
The problem with this is that, while the lack of receipt of proper written materials in a timely manner is a portion of this finding, the staff also received impermissible oral reports which had been recently clarified.
In July 2012 the university requested three additional items of information from the NCAA enforcement staff.
1) Case Summaries of any and all cases involving the use of scouting services that have been processed as secondary violations.
2) Case Summaries of any and all cases involving Will Lyles that have been brought before the Committee on Infractions.
3) Access to all information, including interview transcripts, held by the enforcement staff that illuminate the question of the general understanding in the industry of permissible communication with scouting services.
It is clearly the belief of the university that the Bylaw surrounding communication with the scouting services is not fully understood. What it appears their argument will likely be when the university appears before the Committee on Infractions is that based on the lack of understanding nationwide amongst all members regarding communication with scouting services, the oral reports should not be considered in the same context as the failure to receive proper documents from Lyles.
The NCAA has conceded that the university did receive proper written reports from both Elite Scouting Services and New Level Athletics. If they can prove that the receipt of oral reports was not generally understood by any members as a violation, they will likely try to separate findings 2-a and 2-b from the last finding of this section.
If they can successfully separate the two components and have Finding 2-c evaluated on its merits by itself, the university believes that it would be considered a secondary violation.
WHAT DOES IT MATTER?
This is the biggest question. The university has conceded that there are at least 6 other major infractions in this case so what does one more matter?
Considering that the university and their attorney will not answer questions regarding this topic, we are left, somewhat, to speculation. While it is not the best way to understand the case, that is what we are left with in this instance.
From the perspective of the University of Oregon, it seems like a lot of time wasted to belabor what seems to be a small point. After all, Finding 1 deals with a booster making impermissible contacts with prospective student athletes. Finding 3 deals with extra benefits provided by a booster (Lyles) to PSA's in recruiting. Finding 4 deals with excessive impermissible phone calls by the football operations staff. Finding 5 deals with extra coaches recruiting while Findings 6 and 7 deal with structural problems in the way the football operations staff was monitored. Comparatively speaking, Finding 2 would seem to be the least troublesome issue that is addressed in this report.
From the beginning of this investigation the Oregon staff has been steadfast in their assertion that they believe they had done nothing wrong in their use of the scouting services themselves. While some of the ancillary consequences of the use of said services created violations, the university strongly believes that the receipt of oral reports was not understood to be a violation. It is also clear that the Oregon staff believe it is the obligation of the scouting service to provide information in a timely manner quarterly, not the university's responsibility to acquire said information.
Again, though what would it matter if one more "major" violation were added to the six existing violations which are all considered major in nature?
While we considered the possibility that the Oregon athletic department could be attempting to avoid becoming the precedent and further supporting the rest of the member institutions, we just do not feel that Michael Glazier nor the university would put their necks on the line to avoid becoming the precedent.
Rather, it seems clear that the university believes that this particular finding being classified as major would likely create significantly harsher sanctions than those which were proposed as self-imposed sanctions.
While publicly, most people were talking almost exclusively about the probation and scholarship losses that were proposed, the list of proposed corrective actions is extensive and includes new staff members to monitor phone calls, a reduction in official visits, a reduction in staff evaluation days and the requirement that ALL permissible recruiting calls be made by countable coaches; even if they could permissibly be made by other personnel for one year. The university fined what is presumed to be Chip Kelly $20,000 and issued letters of reprimand to some personnel as well as letters of admonishment to others.
The staff must believe that the violations set forth in Finding 2, if deemed a major violation would likely incur significantly harsher penalties, most likely in the number of scholarship reductions. They believe their position is solid and are willing to face the Committee on Infractions rather than acquiesce and accept harsher penalties.
That position is likely further enhanced based on information they requested regarding the general understanding of members as well as other cases involving both scouting services in general and Will Lyles specifically.
Also from the onset of this investigation there has been widespread speculation that the NCAA would want to set a precedent regarding the use of scouting services. Clearly Oregon's case is the one that has garnered the most attention in this regard.
Further enhancing their position is the rule change in 2010 which was widely known and publicized to member institutions. At no point did the NCAA really concern themselves with the dollar figure spent. As we first reported two years ago, there were several services that charged $25,000 or more for similar nationwide packages. The NCAA acknowledges that the dollar figure was not an issue. Their point is that the violations are a result of the continued receipt of oral reports and the fact that Complete Scouting Service did not provide quarterly reports as required by NCAA bylaws.
The NCAA is firm in their position that it is always the responsibility of the institution to ensure that they are compliant with all applicable NCAA bylaws. Oregon paid for a scouting service in March of 2010 and took 10 months before they requested any written reports which were required to be submitted quarterly. That is a long time to be out of compliance and "blame" someone else for the lack of compliance.
Had the university requested documentation considerably sooner, they might have been able to successfully argue to the enforcement staff that they attempted to stay compliant but the vendor failed to live up to his obligations.
While the university has a very valid point regarding the obscurity of the oral report interpretation from 1987, their argument is still going to be very difficult. It may be possible to somehow get the Committee to agree to consider the first two points as secondary while then allowing the "major" argument be restricted to the third point in Finding No. 2.
Maybe that is a strategy that can work. However, it will be nearly impossible to convince the COI to consider the third point as secondary. The applicable bylaw clearly states that violation of said bylaw shall be considered a major infraction. The updated bylaw was communicated to NCAA members and there was not the confusion surrounding the written requirements that had been implemented.
The sheer magnitude of the length between invoice (2/2011) and request for proper documentation is likely just too lengthy to overcome.