With an appeal lost and a lawsuit almost written, Arkansas Tech Athletic Director Steve Mullins said he couldn’t believe what came across his desk in January.
There, in the new NCAA booklet, was a rule change that made it legal for institutions to waive or pay for an incoming athlete’s room deposits. It was the same rule that had forced Arkansas Tech University to forfeit 205 victories by its men’s and women’s basketball teams from 2009-2013.
“You’ve got to be kidding me,” Mullins recalled saying. “You’re stunned: Here’s the thing we’re arguing, and it’s about to be changed.”
Mullins and other Arkansas Tech officials also had reason to believe the NCAA’s Infraction Appeals Committee was aware of the rule change when it denied Arkansas Tech’s appeal. In September 2015, nearly six months before the decision, there was proposed legislation to make an institution’s payment or waiver of pre-enrollment fees, such as room deposits, legal because “the institution is not gaining a recruiting advantage.”
The Infraction Appeals Committee later denied Arkansas Tech’s appeal using the opposite reasoning.
“Felt like it was unfair,” Mullins said.
The grievance became part of the lawsuit Arkansas Tech mailed to the NCAA president’s office Wednesday, which demands the NCAA return the 205 victories to the Arkansas Tech basketball programs. The NCAA has not been served the lawsuit, said Arkansas Tech attorney Thomas Pennington. The organization will have 30 days to respond once served.
The lawsuit makes three claims for relief, stating the NCAA breached contract in its procedures, treated Arkansas Tech unfairly and made decisions based on ambiguous terms in the NCAA constitution.
An NCAA official replied to attempts for comment but could not offer one as of press time Thursday.
The issue began in August 2013, when Mullins said the athletic program realized it had been incorrectly waiving room deposit fees for incoming athletes. A newly hired housing director told women’s basketball Coach Dave Wilbers that his athletes hadn’t paid their $250 room deposits. Wilbers hadn’t been told about room deposits since he was hired in 2007.
Mullins said the athletic department previously acted on “faulty information” that other student non-athletes were receiving waivers, which would have enabled the athletic department to offer the same waivers for athletes.
Arkansas Tech self-reported the violation to the NCAA, which led to an NCAA investigation that found a total of 57 athletes had their $250 on-campus apartment housing security deposit waived or paid by Arkansas Tech from 2009-2013.
The school submitted self-imposed penalties that included scholarship and official visit reductions. The NCAA’s Committee on Infractions decided to propose further penalties that included two years’ probation, a $5,000 fine and vacating the 205 victories in which the 57 players competed.
It was Arkansas Tech’s first major violation.
“It was a shock to me,” Mullins said. “They went through all the penalties, but on top of all that, [they’re] going to take away all those wins?”
‘PERSONAL PUNISHMENT’
There have been 272 cases of vacated games in NCAA basketball since 1952, and there have been 162 cases in football since 1910.
Some of the cases also included fines, others suspension of scholarships — such as Syracuse, which lost 12 scholarships over four years when a 2015 NCAA investigation revealed academic misconduct, extra benefits, the failure to follow its drug testing policy and impermissible booster activity.
The loss of victories penalizes an institution in a way other methods can’t.
“It’s a very personal punishment,” said former Arkansas State athletic director Dean Lee, whose program forfeited 45 victories over four sports from 2005-2007 because the school used ineligible players. “We’re there for the student-athletes first. Secondary to them is the coach, their careers, their legacies, those things. You have a loss of your record books from that side, and in some cases, without involvement with the situation at all. It’s very personal, and something they would like to get back.”
The University of Southern California was stripped of its 2004 BCS national championship in football. Running back Reggie Bush also was stripped of his Heisman Trophy because he was ruled to have lost his amateur status while playing. The University of Memphis forfeited its 2008 men’s basketball national championship appearance because the NCAA alleged Derrick Rose had used a fraudulent SAT score. Ohio State forfeited its 12-1 football season in 2010 because players traded autographs and memorabilia for cash and tattoos.
Those programs’ victories were not returned.
Penn State was returned 112 victories in football after the NCAA previously had forced it in 2012 to forfeit them because of the Jerry Sandusky child molestation scandal.
Penn State’s case was cited within Arkansas Tech’s lawsuit, paired with a 2010 case involving the University of San Francisco, which had incorrectly purchased $13,907.48 worth of materials from the university bookstore for 108 athletes.
San Francisco was not required to forfeit games.
“We’re just seeking consistency in the application of the vacating wins penalty,” Pennington said.
‘EXCESSIVE’ AT ISSUE
After the Committee on Infractions denied Arkansas Tech’s request to reconsider its penalty, Mullins and Arkansas Tech in December 2015 decided to appeal to restore their 205 victories.
According to the NCAA rules, an institution can only appeal a penalty “on the grounds that the penalty is excessive such that it constitutes an abuse of discretion.”
On March 4, 2016, the Infraction Appeals Committee ruled the Committee on Infractions’ penalty was not excessive. The term “excessive” became another grievance in the lawsuit.
“[The NCAA constitution] does not define the term ‘excessive’ or the phrase ‘abuse of discretion,’ ” it reads.
The NCAA by-laws “at issue are so vague that they cannot be fairly enforced and member institutions cannot comply with them.”
“As you try to determine what is ‘excessive,’ there are no defining terms to that,” Mullins said. “You just don’t know.”
In the years since the Arkansas Tech women’s team vacated its 2013 Great American Conference Tournament title, it has made the Division II NCAA Tournament three times. The men have since reached the Division II NCAA Tournament twice.
“Our program hasn’t changed any,” Mullins said. “Our men’s and women’s teams have remained competitive. Nothing has changed since this has happened.”
As for the past victories, there is no certain time frame on the process. If the case goes forward, it would be heard in Pulaski County Circuit Court.
“We just have to see how things play out,” Mullins said.
Timeline
AUG. 27, 2013
Arkansas Tech self-reports violation that it waived a $250 room deposit for women’s basketball players.
JAN. 23, 2014
NCAA enforcement staff conducts investigation.
NOV. 7, 2014
NCAA enforcement staff submits investigative report.
FEB. 5, 2015
NCAA penalizes Arkansas Tech, which included revoking 205 victories, for paying or waiving deposit fees for 57 men’s and women’s basketball players from 2009-2013.
MARCH 31, 2015
Arkansas Tech makes first appeal to the NCAA Infraction Appeals Committee.
JUNE 4, 2015
IAC denies first appeal.
SEPT. 25, 2015
NCAA proposes legislation to allow an institution to waive, or pay for pre-enrollment fees, for athletes.
DEC. 14, 2015
Arkansas Tech makes second appeal to the IAC.
MARCH 4, 2016
IAC denies second appeal.
JAN. 21, 2017
NCAA Division II unanimously approves proposal that allows an institution to waive, or pay for pre-enrollment fees, for athletes.
MAY 31, 2017
Arkansas Tech mails lawsuit to the NCAA president’s office.