Why the chances of a successful appeal by Georgia Tech are low

After the men’s basketball team was hit with a one-year postseason ban, probation and recruiting and scholarship restrictions for the next four years for its major NCAA violations, Georgia Tech athletic director Todd Stansbury took issue with the severity and duration of the penalties. One of the next steps, he said, was to consider the athletic department’s appeal options.

Tech probably doesn’t want to get its hopes up too high, as the batting average for previous appellants is dismal. Since 2013, when the NCAA created a four-level violation structure based on the severity of the violations and also standardized the penalties accordingly, there have been 21 schools or coaches who have appealed their penalties. All but six appeals were upheld. And the details of the six winners should hardly be encouraging to Tech.

Particularly if it attempts to challenge the postseason ban, Stansbury and coach Josh Pastner face a steep slope. The problem is that the one-year postseason ban falls within the parameters of potential penalties for teams found guilty of Level I violations (severe breaches of conduct). That is how Tech’s misconduct was categorized, an assessment with which the school agreed.

There are three degrees of Level I violations – aggravation, standard and mitigation – with corresponding levels of penalties. Judging by its self-assessed penalties, Tech evidently believed its violations amounted to Level I-mitigation. The NCAA’s infractions committee deemed them Level I-standard. Tech’s recent past with the NCAA (this was the third major violation in the past eight years) helped seal its fate. The NCAA report said that the violations “show a pattern of compliance issues at Georgia Tech with specific issues that continue to arise within the men’s basketball program.”

The postseason ban options for Level I-standard violators are either one or two years, meaning Tech actually received the lighter treatment. It can be reasonably argued that postseason bans are unfair as they penalize athletes who didn’t do anything wrong. However, that is an immaterial argument, as postseason bans are part of the penalty structure that was created and approved by NCAA member schools, including Tech.

Further, according to an attorney who has significant experience representing schools before the NCAA, Tech was at further risk of being hit with a postseason ban.

“The general rule, if you have had an ineligible player in the postseason, whether it’s a bowl game, NIT or NCAA tournament, then it is a postseason ban,” said attorney Michael Buckner, one in 2009 became of the rare lawyers to help his client win an appeal against the NCAA.

The Yellow Jackets competed in the 2017 NIT with two players, Josh Okogie and Tadric Jackson, who should have been ruled ineligible, as they began receiving impermissible benefits from former booster and Pastner friend Ron Bell as early as November 2016, the start of Pastner’s first season.

Another problem for Tech is that rulings are reversed or modified only if schools or coaches can prove one of the following – the ruling was contrary to the evidence, the individual or school didn’t actually break NCAA rules, the findings of a violation were due to a procedural error or the penalty was excessive.

Given that Tech already agreed that a Level I violation had occurred, it would be difficult to contend for a reversal on the basis of any of the first three arguments. Given that the one-year postseason ban is within the guidelines, the case that the penalty was excessive is difficult to make, also.

“If you go based on the penalty matrix, as a school, if you’re trying to appeal the penalties, it’s a little bit harder to argue if the school is within certain criteria on the matrix,” Buckner said.

Of the six schools or coaches that were successful in their appeals, they were generally able to win using technical arguments. For instance, two cases were overturned or modified because the infractions panel handed out penalties that were outside the guidelines.

Former Louisville assistant Brandon Williams was initially found guilty of refusing to cooperate in the investigation centering on another staffer paying women to have sex with and dance for players and recruits because he did not produce phone records. In the appeal, he successfully argued that he should not be held responsible for not producing the records because the phone belonged to his mother, and his mother – not compelled to cooperate with the NCAA – was the one who wouldn’t provide them.

What Tech might have done earlier in the process was offer up more in its self-assessed penalties, even if it didn’t believe that its violations rose to the level of Level I-standard. The most significant penalties that Tech imposed upon itself were a reduction of eight official visits over a three-year period and 14 “recruiting-person days” (one coach on the road for one day of prospect evaluation counts as one day). Both were within the Level I-mitigation guidelines.

“My client was up for a postseason ban, and what we did was we offered much more increased scholarship reductions over two or three years rather than a postseason ban,” Buckner said.

Buckner said that Tech could still try to offer up a beefier scholarship or recruiting reduction in exchange for the postseason ban in a motion for reconsideration, “but that’s probably not going to (be successful).”

Tech can begin the appeals process by sending a notice of its intent to appeal to the NCAA by October 15.