Boise State Appeal and Evaluating the Current Role of Case Precedent in the NCAA Enforcement Process

On October 10, 2012, the Division I Committee on Infractions affirmed its original decision that Boise State University must reduce the number of football scholarships by three for two more years. This decision was made after this penalty, which was appealed by Boise State, was remanded by the Infractions Appeals Committee for reconsideration. On appeal, Boise State had argued that football scholarship reduction penalties imposed by the Committee in past cases were inconsistent with the scholarship reductions in this case.

Perhaps the most important aspect of this decision was the Commmittee’s discussion of the use of case precedent. Since the University of Southern California Infractions Appeals case was decided in 2011, there has been an increased concern that the resolution of NCAA enforcement cases has been anything but consistent. Case precedent or “stare decisis,” essentially means cases must be decided the same way when their material facts are the same. A contrary decision would be an infringement on that party’s rights.

Here, the Committee again noted that they “cannot be strictly bound to decisions made years earlier.” The Committee further noted that they must “evaluate layers of fact scenarios when applying NCAA bylaws in order to determine whether a violation has indeed occurred, the degree of severity of that violation, and the appropriate penalties.” This viewpoint is understandable as the Committee should not be boxed in to a decision based on a prior case just because the facts and violations were somewhat similar.

However, of more interest and greater significance, is the Committee’s reliance on a point referenced from the 1995 Infractions Appeals Committee decision in the University of Mississippi case. The Committee quoted, “[b]ecause each case presents its own set of facts and circumstances, this comparison cannot be made by mechanically applying a formula.” The reference and reliance on this statement should cause the membership at least some concern because it may call into question the Committee’s willingness to show deference to the The Working Group on Collegiate Model – Enforcement’s proposed penalty guidelines. While the goal of the guidelines is to “provide notice” and “ensure consistency,” the Committee would still have the discretion to implement “other penalties as appropriate.”   While the report suggests that the penalties as outlined will apply unless “extenuating circumstances” are found by the Committee, it is impossible to ascertain the actual effect this “out-clause” would have until the new system is actually implemented and tested. The language relied on by the Committee in this case seems to suggest that there will still be plenty of subjectivity involved in the enforcement process. Should this “out-clause” be exercised consistently on a subjective basis the new model would essentially be a repackaged version of the current system.

The full Boise State report can be found here.