On June 5, the National Collegiate Athletic Association (“NCAA”) reached a disciplinary decision regarding Oklahoma State University’s role in a 2016-2017 men's college basketball scandal. The Committee on Infractions (“COI”) — the NCAA’s enforcement wing — brought the hammer down on OSU and stripped the men's program of scholarships for three years, limited recruiting opportunities for three years, and banished the school from postseason play for the upcoming 2020-2021 season.
The saga began in September 2017 when the FBI arrested 10 individuals prominently associated with college basketball on fraud and corruption charges. Among those arrested were assistant coaches, aspiring agents, and an Adidas executive. Oklahoma State became entwined in the scandal when Lamont Evans, OSU’s associate head coach, was arrested. Within 72 hours of Evans’s arrest, OSU self-reported possible NCAA violations, and the school began to cooperate with the NCAA. After a thorough investigation by the NCAA, OSU, and the Department of Justice, the underbelly of college basketball was exposed.
Major shoe companies and aspiring agents worked with high-profile basketball coaches to steer talented youngsters towards specific schools and to entice those same athletes to sign with certain agents after finishing their college careers. Evans’s role in the scandal involved his time at the University of South Carolina and continued during his tenure at OSU when he accepted payments to connect an OSU player with a financial advisor; he also directly payed an OSU player $300. Evans spent three months in prison for his role in the fraud scheme. It is interesting to note that the schools who unwittingly employed dirty coaches are essentially the victims of the fraud.
In November 2019, the COI issued a Notice of Allegations to OSU informing the school that it was under investigation for a Level I Violation—the most severe type of infraction and one which includes loss of postseason play as a possible punishment. OSU cooperated fully, and on June 5, the COI released its findings and issued its punishments.
The June 5 document recognizes that OSU did not benefit in recruiting, did not violate any recruiting rules, did not play ineligible players, and did not exhibit a loss of institutional control (the most serious infraction under current NCAA regulations). The document further notes that Evans acted out of his own self-interest and was not acting on orders from the OSU athletic department. Specifically, the report notes:
“The associate head coach's actions had at least three significant ripple effects at Oklahoma State. First, he exposed the institution to NCAA violations and penalties. Second, he put the OSU student-athlete's eligibility at risk when he arranged the meeting with advisor 1—and later did render the student-athlete ineligible when he gave him $300 cash. Finally, he involved the video coordinator in the scheme by deceiving him into providing his bank account information for the wire transfers.”
However, the COI notes that even in light of the evidence that Evans acted on his own accord for his own selfish gain, “the institution owns the conduct.”
In light of these findings, the COI limited the number of scholarships available to OSU for three years, restricted some recruiting opportunities, and — most importantly — imposed a one-season postseason ban. While “the institution owns the conduct” and deserves the loss of scholarships and recruiting opportunities, the postseason ban targets current players more than the institution. There are no players on the team who were active when Evans committed the infractions.
Indeed, head coach Mike Boynton noted that the current players were in their early teens when the infractions took place. Furthermore, Boynton was not the head coach when Evans worked at OSU, and Boynton had no role in the infractions.
In light of the draconian punishment levied by the COI, OSU has filed an immediate appeal. Athletics director Mike Holder made a statement expressing his shock and disappointment and noted that, typically, loss of postseason and scholarships are reserved for programs who violate the rules for a competitive advantage. In OSU’s case, the COI acknowledged that OSU received zero benefit, and indeed was harmed, by Evans’s actions. Unfortunately, OSU’s chances on appeal are likely slim.
Even so, all of the other teams who have been caught up in the scandal should be scared of the punishment OSU received. Louisville was under probation for its last violation when it received a Notice of Allegations for the 2016-2017 scandal; Kansas received a Notice of Allegations for five Level I violations and have not been cooperative to the same extent as OSU; and USC, Arizona, and Auburn all received notices when assistant coaches on those teams faced similar charges as Evans. This controversy will likely not end any time soon. So, what legal recourse might be available to OSU players affected by the postseason ban?
At first glance, OSU and OSU players seemingly have a strong case against the NCAA based upon Constitutional Law theories. Both the university and the players seemingly have a strong liberty (and perhaps property) interest in being able to play and compete in the March Madness tournament. Unfortunately, the Supreme Court basically gutted challenges to the NCAA based upon Con Law theories in 1988 when it ruled that the NCAA was not a state actor for purposes of Constitutional Law claims. But this isn’t necessarily the end of the road for OSU basketball players adversely affected by the NCAA ruling.
Instead, OSU basketball players may be able to pursue claims against the NCAA for violating private associational law principles including that the punishment is arbitrary and capricious and/or fundamentally unfair. Additionally, if there is evidence that the NCAA violated its own constitution and by-laws in levying punishment against OSU, the athletes may have an additional ground to overturn the postseason ban in court.
To show that the COI ruling was arbitrary and capricious, athletes must show the postseason ban is unreasonable under the totality of the circumstances surrounding the OSU infractions. There is a possibility the postseason ban meets this standard because instead of targeting the OSU athletics department, the postseason ban actually hurts the innocent players the most.
Furthermore, the postseason ban is also fundamentally unfair. Enforcing NCAA rules and regulations is meant to punish wrongdoers as well as to deter future wrongdoing. However, it seems highly improper to punish innocent parties for the wrongdoing of others. As such, most reasonable people would conclude the postseason ban, which severely harms athletes, is fundamentally unfair.
The NCAA recognizes the unfairness of the situation. Larry Parkinson, a COI member involved in OSU’s case stated, “While the committee sympathizes with the impact on student-athletes, it’s almost always going to be the case that some innocent parties who had nothing to do with the violations are adversely impacted. The membership and institutions are fully aware of that.” Mr. Parkinson justified punishing innocent parties because, in his view, it deters future wrongdoing. This justification almost certainly displays fundamental unfairness.
Should OSU basketball players challenge the postseason ban, it seems they would have a fighting chance at showing the ban is arbitrary or capricious and that the ban is fundamentally unfair. At the end of the day, the most likely outcome of all of this will be a large exodus out of the OSU program this year. For a team and fan base with legitimate national championship aspirations after signing the presumptive top pick in the 2021 NBA Draft, Cade Cunningham, the NCAA ruling will be an incredibly tough pill to swallow.
When given the choice between helping or punishing innocent student-athletes, the NCAA once again took a draconian approach in bringing the hammer down upon OSU basketball. There are no winners in the fundamentally unfair punishment of innocent OSU basketball players.
Carter Fox is a third-year law student at the University of Tulsa College of Law.
 To view the June 5 report, see https://ncaaorg.s3.amazonaws.com/infractions/decisions/Jun2020D1INF_OklahomaStatePublicDecision.pdf.
 See page 11 of June 5 report.
 See page 12 of June 5 report.
 NCAA v. Tarkanian, 488 U.S. 179 (1988).
 Guerin Emig, OSU Case Exposes Fact that Innocent Players Pay Brutal Price for Dirty Coaches, Tulsa World, (Jun. 5, 2020), https://www.tulsaworld.com/sports/college/osu/guerin-emig-osu-case-exposes-fact-that-innocent-players-pay-brutal-price-for-dirty-coaches/article_10932957-a54b-5fa8-94cc-1bb50b8ef124.html#1.