This is the way the world ends

This is the way the world ends

This is the way the world ends

Not with a bang but a whimper.

The Hollow Men, T.S. Eliot

I open with Eliot's post-WWI poem exploring themes of hopelessness, despair and moral and spiritual death because the NCAA and the COI revealed themselves today to be the embodiment of these themes. I have read the entire infractions decision, twice, and have read the transcript of the NCAA press conference. 

The decision very cleverly included a broad general statement of no real legal effect that would serve as a linchpin around which all its otherwise unexplainable deviations from the penalty structure, past practice and previous pronouncements of policy would revolve:

In prescribing appropriate penalties, the panel also considered the current landscape of college athletics, which quite literally changed in the midst of the two-day in-person hearing. University of Michigan, Public Infractions Decision, August 15, 2025, p. 49 (hereafter UM PID).

For those who have read the decision (those of you who have not, I urge you to do so) it is glaringly obvious that the COI was acutely aware of the current evolution of college athletics and seized upon this as an additional convenient excuse to deviate from general penalty guidelines wherever it seemed to feel it required additional support.

Notwithstanding the COI's exhaustive recitation of bad acts by individuals both during and after the implementation of the scheme, the woeful lack of effective compliance oversight due primarily to the outright and open hostility the football program's administration had for the compliance department, the fact that Michigan, the institution, was a repeat violator, and the finding of ample aggravating factors sufficient to sustain a Level 1-Aggravated case classification, no truly meaningful or impactful penalties were imposed.

The COI plainly stated that a postseason ban was required as a core penalty in this instance

A postseason ban is required in this case. Michigan’s case is Level I-Aggravated. See Bylaw 19.12.7.1 (establishing that postseason bans are reserved for Level I cases that lack exemplary cooperation and shall be prescribed in Level I-Aggravated cases). Michigan is also a repeat violator. See Bylaw 19.12.6.2 (identifying that repeat violator status is sufficient grounds to prescribe a postseason ban, even in cases where the institution earned exemplary cooperation). Given those facts, a multi-year postseason ban would be appropriate. That said, the NCAA Constitution states, “Division and, as appropriate, conference regulations must ensure to the greatest extent possible that penalties imposed for infractions do not punish programs and student-athletes not involved nor implicated in the infractions.” See NCAA Constitution 4-B-4. The panel determines that a postseason ban would unfairly penalize student-athletes for the actions of coaches and staff who are no longer associated with the Michigan football program. Thus, a more appropriate penalty is an offsetting financial penalty.

UM PID, p. 51.

Here the COI cops out by simply upping the financial penalty UM will incur, in an effort to not unduly penalize current student-athletes who were not involved. I know I need not belabor the point that UM has buckets of filthy lucre to throw at the aftermath of its dirty business, so I won't, except to the extent that I just, in fact, did. Conspicuously absent, however, from the COI decision here is any mention of utilizing the vacation of wins remedy, since such a remedy is itself  "rear-facing" and thus can have no impact on current, innocent players. 

Here I have to leave the decision itself, since it is utterly silent on the issue, and go to the press conference*, where the matter was actually addressed.

Question by Dan Hope, Eleven Warriors Staff Writer:

I wanted to ask about the decision not to vacate any wins from Michigan - was that something that was considered at all and why was the decision made not to go that route?

Panel Chief Hearing Officer Norman Bay:

. . . vacation of records is only in play when there’s ineligible competition. That was not a factor present in this case. It was not a penalty, in other words, that could be considered and we did not impose it.

Kay Norton, NCAA Committee on Infractions Chair added:

Well, I was just going to add that, in addition, the NCAA took very quick action once it was apprised of the possibility of these violations and therefore there was insufficient evidence in the record that the outcome of games was affected.

Mr. Bay's answer is wholly inconsistent with the COI's previously stated policy as set forth in the June 18, 2008 Southeast Missouri State Decision, at p. 10.

Over the past two years the committee has made substantial efforts to articulate and adhere to coherent, consistent standards for imposing a vacation penalty. Those efforts included the appointment of a subcommittee to examine the issue of vacation penalties, three meetings at which subcommittee recommendations were developed, and adoption of a new policy by the full committee in June 2007. That policy, developed with guidance from decisions of the Infractions Appeals Committee, states that while the committee retains discretion to apply (or not apply) the vacation penalty under any circumstances it believes to be appropriate, the likelihood of such a penalty is significantly increased when any of the following aggravating factors are present: academic fraud; serious intentional violations; direct involvement of a coach or high-ranking school administrator; a large number of violations; competition while academically ineligible; ineligible competition in a case that includes a finding of failure to monitor or a lack of institutional control; or when vacation or a similar penalty would be imposed if the underlying violations were secondary.

This is the only writing I have been able to find directly addressing any "policy" of the COI on applying the vacation of wins penalty in the absence of competition by ineligible student-athletes.**

Mr. Bay's statement does not merely reveal ignorance of the COI policy. Additionally, it ignores at least one instance where a COI did in fact impose the penalty where no ineligibility issues were present - the Penn State decision. That decision was subsequently vacated, not because the COI overstepped its bounds in the penalty phase, but rather, because the NCAA was seeking to punish conduct that was not within the scope of its authority to regulate.

We now come to the additional rationale provided by Ms. Norton. Her answer is troubling because it hints at the existence of a totally different standard for some cheating. Are some animals more equal than others? I am afraid so.

Functionally, there is little difference between illegal recruiting and illegal scouting. Both are undertaken to gain a competitive advantage and the COI specifically found that the intent behind the advance scouting scheme was to acquire an unfair competitive advantage. UM PID, p. 20.

Presumably, or presumptively perhaps, using illegally recruited players in a game is unfair and provides a competitive advantage. Using illegally obtained signals intelligence in a game is unfair  . . . but may or may not provide a competitive advantage. You see, if you use illegally recruited players, the COI is not required to find that they provided a competitive advantage. A presumption that a competitive advantage has been obtained by using ineligible student-athletes has been created by the inclusion of that limiting language in the additional penalties bylaw, Bylaw 19.12.9(g)***. But if you use illegally obtained signals intelligence, you must somehow demonstrate that a competitive advantage was derived therefrom.

* I was unable to see the actual press conference initially. Thus I am relying on the accuracy of the reporting of the contents by On3. I subsequently checked it here.

** Previous decisions of the COI have very limited precedential value. Moreover, since this decision did not itself actually involve an imposition of the vacation of wins penalty in the absence of ineligible student-athlete competition, this language would be considered mere dictum (non-binding language not central to the holding of a case). However, the importance of this language is not for citing to the existence of a precedent, but rather is because it is a written pronouncement of the existence of a COI policy on the issue.

*** Bylaw 19.12.9 provides in part:

19.12.9 Additional Penalties for Level I and Level II Violations. Additional penalties for Level I and/or Level II violations may include one or more of the following: (Adopted: 10/30/12 effective 8/1/13, Revised: 8/7/14, 8/31/22 effective 1/1/23, 1/10/24)

* * * 

(g) Vacation of records in contests in which a student-athlete competed while ineligible, including one or more of the following:

(1) Vacation of individual records and performances;

(2) Vacation of team records and performances, including wins from the career record of the head coach in the involved sport, or, in applicable cases, reconfiguration of team point totals;

or (3) Return of individual or team awards to the Association. 

Note the language in (g) does not actually deal with wins, but rather "records". I have previously pointed out that another bylaw seems to draw a clear distinction between "wins" and "records" and believe the current COI's implied reliance on this language in this bylaw is misplaced. I should hunt the other bylaw down, but alas I have run out of time.