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USC faces an uphill battle in appeal

School's stance is that it didn't know about Reggie Bush violations, but NCAA recently changed its bylaws to make it tougher for penalties to be lessened.

June 10, 2010|By Baxter Holmes

USC announced Thursday it would appeal NCAA sanctions it considers "excessive." And even before those plans became official, Trojans football coaches were calling recruits and getting out the message that the penalties could be reduced.

"They're trying to appeal it and at least cut it in half," said incoming freshman Giovanni Di Poalo, an offensive lineman from Ventura St. Bonaventure High who said he spoke to Trojans line coach James Cregg.

However, if recent history is any indication, Trojans players and fans shouldn't get their hopes up.

Since a key change to an NCAA bylaw was made in January 2008, only one in 11 appeals has been successful.

The change: An appeal will be granted only if the offended party shows "the penalty is excessive such that it constitutes an abuse of discretion" by the NCAA Committee on Infractions.

Before, an appeal could be won if, upon review, it was determined that a penalty was inappropriate based on the evidence and circumstances.

"It's a tougher standard to meet," said Mike Glazier, the head of Collegiate Sports Practice group at the Kansas office of Bond, Schoeneck & King, who for 20 years has been working with universities during the NCAA investigation process. "It was changed for that purpose — to make it harder to be successful on appeal."

USC officials were not commenting specifically about their appeal plans Thursday, but the university released a letter from school President Steven B. Sample addressed to "Members of the Trojan Family," and in it he said he "sharply" disagreed "with many of the conclusions reached by the NCAA Committee on Infractions."

Among those conclusions was that USC knew or should have known that star running back Reggie Bush and members of his family were receiving extra benefits from would-be marketers and prospective sports agents in violation of NCAA rules. As a result, the Trojans' football program was hit hard — too hard, the university feels — with penalties including 14 vacated victories, a two-year ban from participating in bowl games and a loss of 30 scholarships.

"…monitoring and regulating human behavior is complex at best," Sample's letter continued. "…In this environment, we need to make sure that we are doing everything we can…to protect our students, their families — and ultimately the university — from unscrupulous sports agents and others who seek to exploit our elite student-athletes or their families."

USC's stance is that violations with Bush took place — but they had no way of knowing about them. Bush has denied wrongdoing from the time allegations surfaced years ago.

Glazier said such an appeal would be "a pretty big uphill battle." He added: "Just to be successful on appeal because you claim the penalties are too harsh, your chances are not very good."

Michael Buckner, a Florida-based attorney and private investigator who has worked on NCAA cases, agreed that "most of the penalties" would be upheld. However, he said the loss of 10 scholarships a year "might be excessive," noting that the NCAA usually reduces scholarships at the rate of two for every one ineligible player.

Buckner, a USC alumnus, said it appeared to him the infractions committee "did what they should have done and imposed the appropriate penalties" considering USC's status as a repeat offender that was failing to properly monitor its athletes.

Buckner's firm represented Alabama State — the only school to be successful with an appeal since the bylaw was changed.

That change was prompted, experts say, by a string of successful appeals that overturned certain aspects of sanctions against Oklahoma (2008), Ohio State (2007), Georgia (2005), Georgia Tech (2004) and Michigan (2003).

NCAA spokeswoman Stacey Osburn said the bylaw change was "part of the normal legislative process to constantly be evaluating what is happening in our structure and what's being addressed and what's being successful."

Alabama State had its penalty of five years probation for widespread academic fraud shortened to three years in 2009 after Buckner's firm asked the appeals committee to consider how federal and state courts had defined "abuse of discretion."

Using Alabama State as a template, the NCAA now has a five-part test that defines "abuse of discretion" if the penalty was:

Not based on a correct legal standard or was based on a misapprehension of the underlying legal principles.

Based on a clearly erroneous factual finding.

Failed to consider and weigh material factors.

Based on a clear error of judgment, such that the imposition was arbitrary, capricious or irrational.

Based in significant part on one or more irrelevant or improper factors.

That the NCAA would toughen rules on appeals came as no surprise to its membership.

"It's like anything," said Brian Battle, the compliance director at Florida State, which had an appeal denied in January. "Any time somebody wins something, they'll say, 'Where did we … do something that caused this separate group of people to overturn the decision?"

Times staff writers Mike Hiserman and Eric Sondheimer contributed to this report.

baxter.holmes@latimes.com

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