Experts say Michigan faces uphill battle in fighting NCAA charge against Rich Rodriguez

Experts, and a review of other NCAA cases, show the university and Rodriguez face an uphill battle in their efforts to get the committee to overturn that allegation.

“Between now and the hearing, there will be meetings between the (NCAA enforcement) staff and the university, where they will discuss any disagreements,” said Tom Yeager, the commissioner of the Colonial Athletic Association and a former chairman of the Infractions Committee. “Sometimes they agree to disagree and come to the committee."

If the committee sides with Michigan, then additional penalties are unlikely. If the committee doesn’t buy Rodriguez’s argument, then more severe penalties may be ahead.

“It was interesting how they (the university) were trying to shield coach Rodriguez and trying to disperse the liability or blame among many people,” said Michael Buckner, an attorney who has represented universities before the NCAA for 11 years. He has read the responses from both Rodriguez and the university. “I don’t know if that will work with the (infractions) committee. It may backfire on Michigan," he said.

“I think Coach Rodriguez did a better job in his response in detailing why he wasn’t liable (than the university did.) The fact still remains that there was a lack of cooperation between his staff and the compliance office.”

The dispute

The heart of the disagreement between Michigan and the NCAA on that particular allegation centers on how much Rodriguez knew or encouraged the other alleged violations.

The NCAA, in its notice of allegations in February, said he was aware and should have stopped the violations.

Rodriguez became the sixth head coach to be alleged to have violated the rule since the rule was implemented in 2005.

In his 89-page response to the NCAA, Rodriguez and his attorney repeatedly argue Rodriguez was unaware rules were being violated, either because he misunderstood the rule through the compliance office, or because his staff didn’t keep him informed.

“Rodriguez denies that he failed to promote an atmosphere of compliance,” the report says. “However, as explained below, Rodriguez agrees that his actions or inactions caused or contributed to some - but not all - of the violations. …

“In summary, Rodriguez acknowledges that violations occurred and that with respect to some of the violations - but not all - he could have done a better job of monitoring the activities of some members of his staff. However, Rodriguez did not fail to promote an atmosphere of compliance.

“He and his staff attended rules education meetings, he invited the compliance staff to his Hideaway meetings, he ran a transparent program and he encouraged everyone, including the compliance staff, to bring any concerns directly to his attention.

“Rodriguez hopes that this Response and the Committee's Infractions Report will set the record straight. Rodriguez and his staff are not rogues, renegades or cheaters.

“Yes, there were violations. But they were not done deliberately or knowingly. Rather, they were inadvertent and in many cases isolated. The underlying activities were done openly and transparently.”

The university echoed those themes in its own response, and again in a teleconference with reporters Tuesday.

“The reality is we had failures across the athletic department,” Brandon said. "Bad decisions were made. The reality is the blame for this complex set of issues spans different areas and entities in football program and athletic department overall.

“If there was one single person to be blamed for this, we’d be doing it.”

The hearing and the aftermath

The university and Rodriguez will join NCAA enforcement staff before the Infractions Committee on Aug. 13 and 14.

“For lots of individuals, it’s an anxiety-producing experience,” Yeager said. “For some coaches, it more like ‘Thank God, it’s finally game time.”

Before then, there will be a pre-hearing conference between enforcement staff and the university.

“The pre-hearing clarifies issues that are still on the table,” said Mark Jones, chair of the Collegiate Sports Practice at the Indianapolis law firm of ICE Miller and the former managing director of enforcement for the NCAA.

Before the hearing, committee members will have gotten the allegations, the response and also a summary document prepared by enforcement staff.

If there’s a lot of agreement on the violations, the hearing can move quickly, Yeager said.

That appears to be the case in regard to Michigan.

Over and over again, the university says the NCAA allegations are “substantially correct.”

The exception to the agreement is Rodriguez’s culpability. That issue is likely to be the center of discussions between the enforcement staff and the university, experts said.

“It’s not unusual for allegations to be modified or dropped (during this process),” Jones said. “(However) when the committee gets it, it will likely look the same as it does today.”

Once the hearing begins, the bulk of the time will be spent on the areas of disagreement.

Which side wins depends on each case, Jones said.

“The staff doesn’t win all the time, that’s for sure,” he said.

Buckner agreed.

“I’ve been in hearings where they have severely questioned the enforcement staff. I’ve been in hearings where they really questioned the university, or the individuals named. It’s really a case-by-case thing.”

Once the committee hears all the arguments, a statement will be read to both parties, warning them not to talk about it. Then the committee will go into a private meeting. The members can often talk about the case and the written findings in a series of conference calls.

Then a ruling is issued. The committee can either stick with the self-imposed penalties or issue their own, based on penalties outline in bylaws.

Experts said just disagreeing with the enforcement staff shouldn’t lead to stiffer penalties if the university loses.

“Practically speaking, it is hard to get as much credit for being cooperative if you disagree,” Jones said.

It can take anywhere between three weeks and several months to get the findings back. Jones said the more disagreements there are between the two sides, the longer the decision can take, citing the recent USC case as one example.

Both the experts and the university agree on one thing - there’s nothing good to come out of this process for a university’s reputation.

“There’s nothing good about the word investigation,” Brandon said. “There’s nothing good about the word violation. There’s nothing good about the word probation.”

David Jesse covers education for AnnArbor.com. He can be reached at davidjesse@annarbor.com or at 734-623-2534.