Points for Appeal/Errors in Findings

[CoxMustangFan]

Points for Consideration on Appeal:

1. According to the NCAA Report, Frazier developed a private relationship with the academic assistant. She was the one that obtained his password and credentials and assisted him in the courses. The NCAA Report states that it was unknown "whether she was instructed to complete the coursework or determined to do on her own." Absent this key piece of evidence, the NCAA erred in determining that either Brown, Magili, or SMU knew that this was being done by the assistant. Think about it, why would the girl ( in a relationship with Frazier, do anything to hurt his eligibility and his/her future? Why would she tell SMU?);

2. According to the NCAA Report, once the academic assistant told Magili about her taking the course for Frazier, Magili failed to immediately communicate his findings to Brown. However, he did notify SMU compliance;

3. Ultimately, the course was not needed or essential to Frazier meeting the criteria to become academically eligible under the guidelines;

4. SMU compliance was actively involved in vetting out the information through a series of interviews in July -August 2014. During this period, the NCAA report states that Brown did nothing "with the information", yet what was he to do? The information was already being vetted through the administrative compliance department. Had Brown gotten involved, in any way, I am of the opinion that they (NCAA) would've concluded he was tampering or trying to effectuate an outcome. From a compliance standpoint, the NCAA erred in concluding that Brown was somehow responsible by omission. Unless Compliance comes knocking on your door, you stay out of the way and let them do their job. This is what Brown did (essentially) ;

5. The NCAA report finds that Brown did nothing with the information he learned relative to the on-line course, the academic assistant and Frazier from July 25-August 4 and that he withheld providing SMU compliance with the information he knew when they interviewed him on September 9, 2014. I find this conclusion problematic from a legal standpoint. From an evidentiary standpoint, Brown did not have personal knowledge of any of the events and was probably advised not to provide second hand/hearsay evidence which he himself had not substantiated. With SMU compliance already having the information verified by Magili, I am of the opinion that Brown had no personal knowledge and therefore, was not withholding any information known to him. Thus, the NCAA findings are erroneous to find that Brown failed to provide information when the report finds that he had no personal knowledge of the events and conversations. Again, SMU compliance had this information already so what exactly was he withholding? ;

6. Conclusions: If the information was provided by Magili to the compliance department, and they determined that the source of the information and the scope of the parties were essentially Magili (setting up the course for Frazier), Frazier and the assistant (having a relationship and the assistant taking the course), how can the NCAA conclude that Brown failed to report information which had (1) already essentially been reported and, (2) of which he had no personal knowledge. One can argue that when the NCAA or investigative body comes calling you tell everything you know: personal knowledge, hearsay, scuttlebutt, rumors, bathroom writings, etc... But this is NOT EVIDENCE. I believe the error in these findings by the NCAA center on the conclusion that Brown had a duty to disclose rumors/hearsay and stories communicated to him. If I were his attorney, I would advise him as I do all my clients, "do not speculate, do not draw conclusions, do not restate things you have no knowledge about. You state what you know, what you saw and what you can raise your right hand to and say, "I know this to be the truth."

6. The sanctions against Brown and Frazier are overreaching. I do not know the appeal process for the NCAA. If this went to a US District Court, it would be thrown out much like the sanctions against Tom Brady. A lot of suspicion and innuendo, but no real hard proof against Brown and SMU. Look I hated that Brady "got away" with the whole deflate thing. But from a legal standpoint, I knew that report and its findings were flawed and erroneous. That's not to say the investigator didn't do his job, he simply could not connect the dots to Brady.

Here, there are no dots connecting anything to Coach Brown other than the dreaded "lack of control." But with compliance already involved, with him having no knowledge, I have no earthly idea what was he supposed to control? The private things that happen in apartment between a young man and young woman? Hell, please don't investigate me because I wrote a couple of essay papers for a hot girl in college who later became my wife. I suppose the Dean of the School should have known about that one!

[sadderbudweiser]

Don't forget the policy points for all the idiots saying what are these kids supposed to do when they don't go pro and they've been helped all the way through school. These errors were a result of getting Keith into school so that when he doesn't have a pro career he can fall back on a college education; NCAA and its supporters are arguing KF was too dumb to have been allowed the college opportunity. NCAA is saying if you are a not well educated innercity kid, you have no place in college and you should be left behind; athletic talent should not be leveraged to provide the disadvantaged with opportunities they otherwise would not have had.

This is right on the money and needs to be repeated over and over. There are kids shooting dope today instead of basketballs who, given a chance, might have benefitted. Keith and SMU could eventually be a shining example of not just using a great athlete who is a marginal student…rather this could be the rare occasion where both benefit. And frankly, THAT pisses me off more than the f***ing sanctions.

[ojaipony]

Very well done. 2 things:

1 - Email this to Hart and Turner!

2 - interested to hear what stallion thinks

[ojaipony]

Don't forget the policy points for all the idiots saying what are these kids supposed to do when they don't go pro and they've been helped all the way through school. These errors were a result of getting Keith into school so that when he doesn't have a pro career he can fall back on a college education; NCAA and its supporters are arguing KF was too dumb to have been allowed the college opportunity. NCAA is saying if you are a not well educated innercity kid, you have no place in college and you should be left behind; athletic talent should not be leveraged to provide the disadvantaged with opportunities they otherwise would not have had.

From the PR side, this is an excellent point to keep driving home: SMU took a chance on giving a kid (and his kid) a shot at a better future; he faltered at first, but has since done everything within his power to take full advantage of that opportunity and as Coach said yesterday is on track to graduate with a degree next year. Some people did some stupid [deleted] before he got here; we know it, NCAA knows it, and they have been/are being held accountable in different ways. But from the moment Keith started taking classes AT SMU he has worked, stumbled, worked harder and is on track to succeed. As an alum, I have NO problem with my alma mater trying to give this kid a chance that NOBODY else was going to give him. The Brett Shipp's of the world that think kids like KF "aren't worth the headache" can kiss off; they are EXACTLY the kids that are worth putting in a position to succeed because they appreciate the opportunity more than many who have had their lives handed to them.

^^^^^^ Top 5 post of the year candidate ^^^^^

[Oliver]

Let's be real, and I love this story and believe it to be true. Those of us around the program have seen that Larry, RGT and the SMU community care about Keith and want him to succeed above all else.

That said, there's no way in my mind that this negates the academic fraud that took place. The NCAA's argument is simple "you took in a kid without a chance of making it in college and showed him that cheating was ok...oh and he was brought in to help you win basketball games in the first place" The media is already all over SMU, and it would be hard to turn the tables by getting people to feel sorry for Keith IMO. Even though we know LB cares about him, while the NCAA is only interested in it's own agenda and making $$.

I'm more interested in Larry's knowledge of the situation at the time he was interviewed, and how we can delay or appeal the postseason ban, because screwing the seniors already in class holds more weight in my mind.

[RyanSMU98]

Let's be real, and I love this story and believe it to be true. Those of us around the program have seen that Larry, RGT and the SMU community care about Keith and want him to succeed above all else.

That said, there's no way in my mind that this negates the academic fraud that took place. The NCAA's argument is simple "you took in a kid without a chance of making it in college and showed him that cheating was ok...oh and he was brought in to help you win basketball games in the first place" The media is already all over SMU, and it would be hard to turn the tables by getting people to feel sorry for Keith IMO. Even though we know LB cares about him, while the NCAA is only interested in it's own agenda and making $$.

I'm more interested in Larry's knowledge of the situation at the time he was interviewed, and how we can delay or appeal the postseason ban, because screwing the seniors already in class holds more weight in my mind.

I agree with you; academic fraud is unacceptable and cannot be tolerated. However in this case, the person who committed the fraud (the admin) is no longer associated with the University, nor is the Assistant Coach who may have known nor the Compliance Officer responsible for investigating. Other than perhaps timing of reporting (and the question of what Coach Brown knew and when and what he did with that information), what else is a school supposed to do? You can't fire the staff that's already gone and you don't expel a kid who has successfully completed coursework. As for the admissions decision in the beginning, the Provost made the call to grant an exception (we can speculate all we want but it never explicitly says what the rationale was because admissions folks are like HR folks and know better than to write that stuff down). And as for the student? He has NEVER been accused of impropriety during his college coursework; when found not to be making the grade he was correctly declared ineligible, worked to restore that eligibility, and is now in good standing. Compare that narrative to 20 years of systemic academic fraud at UNC and see how well that all plays in the press. That kid "without a chance" is about a year from graduating with a degree; how bout them apples?

[ponyscott]

Thanks guys..that's some great work unearthing some factoids from this mess we find ourselves in..great stuff!

[Oliver]

I agree with you; academic fraud is unacceptable and cannot be tolerated. However in this case, the person who committed the fraud (the admin) is no longer associated with the University, nor is the Assistant Coach who may have known nor the Compliance Officer responsible for investigating. Other than perhaps timing of reporting (and the question of what Coach Brown knew and when and what he did with that information), what else is a school supposed to do? You can't fire the staff that's already gone and you don't expel a kid who has successfully completed coursework. As for the admissions decision in the beginning, the Provost made the call to grant an exception (we can speculate all we want but it never explicitly says what the rationale was because admissions folks are like HR folks and know better than to write that stuff down). And as for the student? He has NEVER been accused of impropriety during his college coursework; when found not to be making the grade he was correctly declared ineligible, worked to restore that eligibility, and is now in good standing. Compare that narrative to 20 years of systemic academic fraud at UNC and see how well that all plays in the press. That kid "without a chance" is about a year from graduating with a degree; how bout them apples?

Totally agreed, just think that the appeal to pity for Keith wont work against the NCAA. We hopefully have solid ground to prove Larry did what he could with what he knew. I'm more upset about scum like Dookie V trashing Larry, when you look at the actual case by case scenarios at UCLA, KU and SMU, you see Larry took the fall for situations mostly out of his control (Sam Gilbert/Keith Frazier....other than giving a recruit a few hundred dollars to visit his dying grandmother at KU, Larry was at worst just going with the flow and focusing on coaching basketball) His reputation should not take a hit, the man is a basketball genius, a true teacher and a genuinely good person who cares about people, I'll do whatever little I can to protect someone like that.

[jpe747]

I appreciate the points made. I am not educated in the area of law especially as it would affect SMU and the NCAA. However, if all else fails and the sanctions remain in force, I have wondered if a Class Action Lawsuit would be a legitimate possibility? I stand with those who feel these sanctions went way beyond anything reasonable and I am very upset with the NCAA findings.

[Smulaw90]

I appreciate the points made. I am not educated in the area of law especially as it would affect SMU and the NCAA. However, if all else fails and the sanctions remain in force, I have wondered if a Class Action Lawsuit would be a legitimate possibility? I stand with those who feel these sanctions went way beyond anything reasonable and I am very upset with the NCAA findings.

A class action is filed with you a have a large group of people (i.e., a class) of people all of whom have suffered/sustained the same injury. They work well when say, Bank A charges everyone a $3.50 monthly charge that it did not have authority to charge. No one is going to file a lawsuit for $3.50. However, if there are 250,000 people impacted, a lawyer will file a suit for all 250,000, have the class certified, and then sue on their behalf. Regrettably, in the end, the individuals get a coupon or credit for $20.00 and the attorney makes off like a bandit with $2,000,000.00 in fees.

The right step is aan appeal. But let me preface my comment by saying this, I have no doubt that SMU has the absolute best team of lawyers/staff giving due consideration to an appeal and weighing all the options. I wish I could be a fly on the wall during that discussion.

I truly believe that as a matter of law some of the findings by the NCAA are not fully supported by the record and the evidence. The crux of the findings are rooted in the contention that academic fraud occurred. Assuming for the sake of argument that that is a given, the next point is "what if anything did SMU/LB have to do with it." The NCAA's findings were that LB did not have knowledge that the fraud was taking place. Therefore, in my opinion, the punishment of LB is not for what he knew or did not know, it was because the investigators felt he was not forthcoming with information when they interviewed him.

From an appeal standpoint, I would want to see how the question was asked, and how it was phrased.

Example No.1:

Question: Did you know that the admin asst took the exam on behalf of KF?

Answer 1: Yes, I did. Ulric told me. (In my opinion that is a wrong answer. LB did not have personal knowledge that the admin took the exam. The NCAA has already concluded he did not know.)

Answer 2: No, I did not know that. (this is the correct answer based on how the question is asked).

Example No. 2:

Question: Based on information gathered by your staff, and the compliance department, were you made aware that the admin asst. took the exam on behalf of KF?

Answer 1: Yes. Ulric told me. (This is a correct answer based on how the question is asked).

Answer 2: No. I did not know that. (This is an incorrect answer because he was informed by staff and thus, he would be lying).

So you see, how the question is asked dictates the proper response. To most non-lawyers, they see semantics. Gamemanship. Evasion. Manipulation.

To me, I'm answering based on how the question is presented. It's your job to phrase the question correctly. Its not my job to give you the answer based upon what I think you are asking.

I think the investigators asked LB questions employing the terminology of the first example. Based on those words, and after consulting with his lawyer/counsel, he corrected his answer and from this, the NCAA derived that he was not being forthcoming and had "lied."

That conclusion, is legally flawed. You can't create evidence of guilt from a response based upon an erroneous and legally flawed question.

From my 25 years of practicing law I've learned many things. One of them is that honest people, try to be honest when answering questions by someone investigating. Especially when they believe they've done nothing wrong. They don't operate in the technical fringes of verbage, innuendeo, slight of hand. In contrast, the investigative group (FBI, police, NCAA), they operate in those fringes and they ask questions knowing that the question will elicit the response they want.

[Oliver]

smulaw....I can only hope there's a team of people thinking about this the way you are right now...

[Tx_Mustang10]

What's the legal standard for NCAA compliance? Propensity of the evidence?

Also, it sounds like SMU did not have the ability to make its case. Rather, it seems NCAA asked the question and drew its conclusions (creating a self-fulfilling prophecy). Is that correct? If so, it goes against the American system of civil justice, entirely...