Cal Poly

Cal Poly calls NCAA sanctions ‘despicable’ — and it’s headed to Indianapolis to fight them

Just days away from a critical appeals hearing, Cal Poly’s top athletics official has come out fighting against the NCAA’s ruling in April that hit the university with severe sanctions for inadvertently over-awarding textbook stipends to some of its student athletes.

In an interview with The Tribune, Athletic Director Don Oberhelman blasted the scope of the ruling, saying it is unjust and strays from past NCAA case precedent.

“For the NCAA to go outside of relevant case precedent and require innocent student athletes to vacate their wins is in my opinion despicable,” Oberhelman told The Tribune.

“It should concern all our Division I peers that the NCAA is attempting to punish completely innocent student athletes,” Oberhelman added, noting he has served on NCAA legislative and interpretive bodies for 15 years.

Next week, the university will travel to Indianapolis for an Oct. 24 hearing, where it hopes to convince a five-person NCAA appeals committee that the punishment is too harsh.

The committee — made up of four NCAA member representatives and one person from the general public, typically a lawyer with no connection to the NCAA — will issue a final report and ruling in the case.

Cal Poly admits an error occurred, but Oberhelman believes the punishment doesn’t fit the crime — a highly technical policy that school officials say resulted in an unintentional overpayment to a limited number of student athletes.

By offering an $800 stipend instead of financial aid that covered the exact book costs to some students between 2012 and 2015, the university committed a rules violation, which it then self-reported to the NCAA, Oberhelman said.

Cal Poly’s stipend exceeded the actual cost of books for 72 athletes by $16,180 — ranging from $5 to $734 — and caused 30 athletes to go over their individual financial aid limits, according to the NCAA.

The excess payments averaged about $175 per student, Oberhelman said.

Cal Poly’s punishment includes a $5,000 fine, two years of probation and, most significantly, the vacating of records, meaning the Mustangs’ wins and losses over a three-and-a-half-year period in some sports will be stricken from NCAA records.

The sanctions also include scrubbing of some individual athletic accomplishments, such as Joe Protheroe’s all-time school rushing record in football.

Cal Poly’s Joe Protheroe is pushed out of bounds by Idaho State’s Aren Manu during an NCAA college football game in San Luis Obispo, Calif., Saturday, Nov. 10, 2018. Protheroe disagrees with the NCAA decision to vacate student records over a textbook payment violation. Joe Johnston

“(Cal Poly) owned and self-reported the mistake, with zero culpability or knowledge on the part of any student athlete or coach,” Oberhelman said. “I’m very fearful that the lessons learned for our sister institutions could be to no longer admit their minor mistakes and not self-report, which should never, ever happen.”

The NCAA wrote in its April 18 infractions decision that Cal Poly’s staff “did not know how to correctly apply book-related financial aid legislation, specifically how to treat cash stipends for books.”

“This case underscores the risk of directly providing cash to student athletes as part of a financial aid package without a means to account for the use of the cash,” the NCAA wrote.

Why Cal Poly disagrees with the NCAA

Cal Poly awarded stipends to 265 student athletes in sports including football, men’s and women’s tennis, women’s volleyball, softball, and women’s track and field, among others, according to the NCAA.

In most cases, the student athletes’ aid was processed incorrectly, but “no violations occurred for the vast majority,” Oberhelman said.

Some Cal Poly teams weren’t involved during that time period, such as men’s and women’s basketball, because student athletes received their books directly from the university as part of their aid, versus a monetary scholarship allocation. Cal Poly has more than 500 student athletes.

Men’s basketball earned Cal Poly’s first berth in the NCAA tournament in 2014, and that accomplishment will stand in NCAA records, despite some speculation in the media that the achievement could be stricken.

The NCAA stated in its infractions ruling that it became aware of the violation after it “came to light shortly after an Oct. 27, 2015, financial aid summit hosted by the Big West Conference.”

But Cal Poly officials noted that the university’s staff sought guidance from NCAA officials and received conflicting information.

The university said that an NCAA official initially informed Cal Poly that a stipend was permissible, before Cal Poly later received a follow-up email from a different official indicating the initial guidance was incorrect — and the stipend was indeed not permissible, according to a Cal Poly consultant’s review released under a public records request from The Tribune.

Oberhelman said if Cal Poly had designated in its reporting forms that it was offering a “books allowance” versus simply stating “books,” that would have followed guidelines, which it has since made clear.

The reason for the distinction is the NCAA differentiates between awards that are part of a general allowance, and how that money is spent, versus one that designates cost breakdowns for specific expenditures, Oberhelman said.

“I believe deeply in the mission of intercollegiate athletics and what we do in service to our student athletes, but this case has shaken my confidence in the enforcement process and has me questioning the values of the NCAA,” Oberhelman said.

Cal Poly athletic director Don Olberhelman believes the NCAA is being too heavy-handed by making Poly athletes vacate records for a minor, university self-reported accounting error. David Middlecamp

The NCAA’s assessment of the violation

NCAA officials declined comment for this story citing the ongoing appeal, instead referring The Tribune to its bylaws and a written April infractions ruling.

The organization’s interpretation of the violation includes the following:

“(Cal Poly) did not have sufficient procedures in place to monitor and review the bookstore staff distribution and record of texts and course supplies provided to student athletes to assure compliance with NCAA legislation,” the NCAA wrote in an infractions report.

The NCAA added that Cal Poly misapplied financial aid legislation; didn’t provide pertinent rules education; and failed to “implement targeted policies and procedures to enable oversight of the book scholarship program.”

In an Aug. 15 statement as part of the appeals process, issued by Jackie Thurnes, NCAA director of enforcement, the organization claimed:

Cal Poly received a competitive advantage because other universities weren’t afforded the same opportunity.

Some Mustang athletes played while ineligible because of the violation (even though those students weren’t aware of the textbook overpayment).

The students received “meaningful extra benefits.”

“Student athletes have the latitude to use room and board stipends as they see fit to cover their off-campus living expenses and are not required to provide receipts for these expenses,” an NCAA Committee on Infractions Panel wrote. “On the other hand, financial aid legislation requires that cash stipends for books must equal the exact cost of the books and course-related supplies.”

Cal Poly’s response to the NCAA

Cal Poly officials vehemently disagree that the university received any competitive or recruiting advantage, that students played while ineligible or that the award offered students any significant extra benefit.

“Our appeal of the NCAA decision is about one thing: protecting the rights of Cal Poly student athletes,” Oberhelman said. “Our innocent students received no competitive advantage by receiving an average of an extra $175 for their books — their hard-earned achievements and records should remain intact.”

Protheroe, a former running back whose career came to an end last season as the school’s all-time rushing leader with 4,271 yards, faces the vacating of his records at the same times he’s trying to make a professional team.

Protheroe told The Tribune by email that he had “no idea” he was overpaid for books because “the extra amount of money was too small to notice,” and he believes Cal Poly is being treated too harshly.

“It’s definitely hard to hear,” Protheroe said of the vacating of his all-time school rushing record. “I’ve been on the grind trying to get another chance to play pro ball. If that opportunity never presents itself again, this record was something I could look back on one day and be proud of. Something for my daughters to be proud of.”

Protheroe added, “I just think the NCAA is being unreasonable for such harsh punishment over such a small mistake.”

Arguments Cal Poly is presenting in its appeal

Cal Poly officials say that its books stipend practice had been ongoing for years, dating to the 1990s, and there was “absolutely no intent to do anything but process these awards correctly,” wrote Jeff Schemmel of College Sports Solutions Inc. in a 2017 financial aid review commissioned by Cal Poly to assess the infraction.

Cal Poly also cited a similar NCAA compliance violation involving the University of Nebraska in 2012 in which 492 student athletes were over awarded $27,869 for textbooks.

The infraction resulted in a penalty including probation and a $38,000 fine, but it didn’t involve a vacating of records. Cal Poly said that case is the closest to its violation.

“There is no case more on point,” Cal Poly wrote in a document submitted to the NCAA Committee on Infractions. “The common elements are amazingly similar. ... Records were not vacated for Nebraska, and they should not be vacated for Cal Poly.”

In its documentation related to the appeal, NCAA officials cited a number of cases involving universities that committed violations, stating its Committee on Infractions (COI) since 2014 has “prescribed a vacation of records in 42 cases where ineligible competition occurred, coupled with a failure to monitor violation.”

“Since the beginning of 2018 alone, the COI has prescribed the vacation of records penalty in 15 of its 21 cases, 11 of which included little to no culpability on the part of the student athletes,” the NCAA wrote.

Those included a 2019 Charleston Southern University case where student athletes received book stipends used for non-course related items and a 2018 University of Tennessee at Chattanooga case where 12 student athletes competed after a booster provided them with extra benefits.

But Cal Poly responded that many of those cases involved academic fraud, academic ineligibility and improper academic certification, not “simple cases of misapplication of the books process as in our case and the Nebraska case.”

“We respectfully submit that each and every case cited by the COI in its response is inappropriate to use as binding precedent,” Cal Poly countered in a rebuttal to a written statement by the COI preceding the appeal.

The NCAA stated that case guidance is helpful but not binding in applications of its rules. To reverse the ruling, the NCAA will need to find one or more of the following:

A factual finding is clearly contrary to the evidence presented to the COI panel.

The facts found by the COI panel do not constitute a violation of the NCAA constitution and bylaws.

There was a procedural error, and but for the error, the COI panel would not have made the finding or conclusion.

The COI panel erred when prescribing a penalty.

Is there a different standard for different schools?

ESPN basketball analyst and NCAA critic Jay Bilas previously weighed in on Cal Poly’s case, and opined that the NCAA was out of line with how it handles investigations related to universities from larger conferences with big budgets.

“(The punishment) should be proportional, and it should be compared to other things, and you should take into account how is this going to be viewed. Because I think reasonable people look at this and think, ‘Are you kidding me?’” Bilas said. “... The ‘Power Five’ conferences ... they basically are professional in every way, shape and form.

“And then we’re going to get our undies in a bunch over books? That strikes any reasonable person, and the NCAA likes to use this word a lot, as antithetical to what college sports are all about. Well, this is antithetical to what is reasonable.”

In one of the more egregious recent examples, men’s basketball powerhouse University of North Carolina escaped punishment by the NCAA for one of the largest academic fraud cases in college sports history, when it provided fake classes so student athletes could maintain their eligibility.

Jay Bilas.jpg
Jay Bilas, ESPN college basketball analyst. Phil Ellsworth / ESPN Images Phil Ellsworth / ESPN Images

The NCAA investigated the violations for extra benefits because it didn’t fall under its academic fraud rules, and North Carolina wasn’t disciplined after years of investigations.

The Cal Poly case also comes in the wake of a widespread “Operation Varsity Blues” admissions scandal at several U.S. universities, resulting in criminal cases against parents accused of paying university officials and standardized test administrators to gain unfair enrollments in recent years — indicating the presence of much deeper compliance problems that were taking place nationwide in recent years.

Additionally, California Gov. Gavin Newsom recently signed into state law the Fair Pay To Play Act that includes allowing athletes to collect money on endorsements starting in 2023 — indicating the tide of strict amateur rules at the college level could be changing.

Bilas agreed with Cal Poly that the penalty in this case could deter universities from acting appropriately after a mistake.

“If they had just said, ‘OK, we’re changing the way we do things here and not give this amount for books anymore.’ If they didn’t self-report this, it never would have been an issue and nobody would have cared,” Bilas said in April. “But it tests the school’s ethics, so they do the ethical thing and morally right thing and report something that is very minor in the grand scheme of things and then they get hit with a bag of hammers by the NCAA.”

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Nick Wilson covers the city of San Luis Obispo and has been a reporter at The Tribune in San Luis Obispo since 2004. He also writes regularly about K-12 education, Cal Poly, Morro Bay and Los Osos. He is a graduate of UC Santa Barbara and UC Berkeley and is originally from Ojai.