Could KU’s infractions case wind up in federal court? ESPN’s Bilas offers opinion

Jay Bilas, who is not only a college basketball analyst for ESPN, but also a licensed attorney, outlines a scenario in which the NCAA may not have the final say in its major infractions case against Kansas.

“This could take up to a year to adjudicate and, if the NCAA overreaches, could wind up in federal court. This will be a long slog, with more schools to follow,” Bilas wrote Monday night on Twitter.

He was responding to the NCAA delivering a notice of allegations to KU. The NCAA charged KU’s athletic department Monday with five Level I violations in basketball and two Level II violations in football.

Contacted by The Star on Tuesday, Bilas indeed expanded on a scenario in which this case could take until the summer of 2020 for a final NCAA verdict to be rendered, and yes, a possible date scheduled in federal court after that … if KU doesn’t like the outcome.

“Most of that stems from sort of how the NCAA handles this with regards to following their own rules of procedure. I think in both the statement from the university and from (coach) Bill Self (indicating KU would fight NCAA allegations) you can get the picture that there is a feeling that the NCAA is trying to exert authority in this area because they were embarrassed by the FBI investigation (into corruption in college basketball recruiting), seen as being asleep at the wheel, ineffective or impotent with regard to rules, rules enforcement, awareness, things like that,” Bilas stated.

Bilas noted that the NCAA “sort of egregiously overreached in their prosecution of North Carolina” — a case in which UNC did not suffer any penalties in its own infractions case involving alleged academic fraud.

“I was one of those at the time that said, ‘They (NCAA officials) are way beyond their scope. They can’t win this case. I don’t know why they are doing this.’ Ultimately they wound up punting at the 1-yard line when they prosecuted North Carolina through the infractions process,” Bilas told The Star.

“In a similar vein,” he quickly added, “if they were to ‘overreach’ in this case or the other cases that we are dealing with the fallout from the FBI investigation, whether it’s Arizona, Louisville or you name it, Kansas included, if they violate their own rules in trying to get the results that they want to make it look like they are tough on crime, this could wind up in federal court. That was basically what I was trying to say in that tweet.”

Obviously a school taking the NCAA to federal court — and winning — could possibly shake the landscape of college athletics.

“The difficulty I think here in any infractions case that’s going to be brought after the FBI investigation and the criminal prosecutions (of Adidas officials) is this sort of ‘coach accountability’ rule. Basically anything that happens is going to be blamed on the head coach, absent a rebutting of the presumption that the coach is responsible for everything, reasonable or not,” Bilas said.

“That’s the difficulty here and in all these cases. The NCAA is basically saying because this happened, you the head coach are to blame. That is a difficult thing to overcome and it’s somewhat easy to say, but there is no sort of question of reasonableness there.

“There is a long way to go in this thing. There are allegations that have been made that need to be answered (in next 90 days by KU). Once they are answered there needs to be an appropriate hearing before this case is adjudicated. We are at the very beginning of this. There is a long way to go.”

The hearing in this case in which KU will be able to respond to NCAA allegations actually will likely be one of the first under a new NCAA enforcement procedure.

The NCAA in the wake of the Rice Commission hearings has set up an “Independent Accountability Resolution Process” to its infractions process. This new process will have independent investigators, ones not affiliated with the NCAA, actually hearing infractions cases.

A “Complex Case Unit,” made up of individuals not affiliated with the NCAA will in the NCAA’s words, “assess whether further inquiry is needed, conducts the investigation and shepherds the case through its review.”

An “Independent Resolution Panel” will “review allegations and the school’s response to those allegations, conduct the case hearing and determine whether violations occurred and any appropriate penalties.”

The NCAA says it will bring in outside individuals to decide cases to “minimize perceived conflicts of interest and to add different perspectives to the review of infractions matters. Select complex cases will be eligible for the independent process. Examples of complex cases include alleged violations of core NCAA values, such as alleged failures to prioritize academics and the well-being of student-athletes; the possibility of major penalties; or conduct contrary to the cooperative principles of the existing infractions process.”

The NCAA on Tuesday did not confirm KU’s case would be conducted under the new setup. “Thank you for reaching out but we will not have a comment at this time,” an NCAA official told The Star in an email.

Bilas said the NCAA’s using the Complex Case Unit would “change the dynamic a little bit. You’ll have different people hearing it and there’s clearly some pressure there to have a different tone to this. Procedurally I don’t know if it will be any different. You’ll have some different decision makers involved in it.

“I don’t know exactly how it’s going to shake out,” Bilas continued, “but after the Rice Commission and after the NCAA was basically embarrassed by this whole thing (FBI investigation and court cases) it feels like the NCAA is looking to take a swing at someone. But they still have to operate within their own rules. A rules based organization can’t just violate their rules to get the result they want.”

KU coach Self, who could face an NCAA-mandated suspension, on Monday said forcefully he would “vigorously dispute what has been alleged.”

“In its haste and attempt to regain control, the enforcement staff has created a false narrative regarding me and our basketball program,” Self said. “The narrative is based on innuendo, half-truths, misimpressions and mischaracterizations. In reality, we all know there is only one version of the truth. The truth is based on verifiable facts, and I am confident the facts we will demonstrate in our case will expose the inaccuracies of the enforcement staff’s narrative.”

Bilas said he was not surprised by Self’s forceful response.

“Although it may sort of indicate to Kansas fans, ‘We are going to stand up for what we believe in,’ it doesn’t really do anything. It’s not going to indicate that there may be a negative result and it’s not going to get any closer to a more positive one,” Bilas said.

Bilas was asked by The Star if he thought KU should have taken the same route as Duke, holding its own investigation into allegations of impropriety.

Duke in early September announced that after a five-month internal investigation into lawyer Michael Avenatti’s allegations that Nike paid athletes, including Zion Williamson, Duke “found no evidence” the former Blue Devils basketball player’s eligibility was compromised.

Duke declared its investigators from outside the athletic department discovered no findings of any NCAA violations involving Williamson.

“None of it matters. You can do whatever you want,” Bilas said. “The notice of allegations has already hit (KU). You can bring in the FBI and have the FBI clear you. You’ve still got to go through the process (now). It doesn’t matter.”

Thus far there’s been no talk of Duke perhaps receiving a letter of allegations.

Asked if he thought the NCAA was going after bluebloods, Bilas said: “I don’t think it’s necessarily like that. I think it’s pretty clear that the NCAA wants to be seen as being in control and being able to hand out punishment for what they feel has been transgressions and embarrassments that they’ve suffered.”

Of the process, Bilas concluded: “What counts is the response to the notice and the hearing and how it’s handled from there. This is a long, long process. We are not going to be anywhere near a resolution of this until the summer. It’s going to have no bearing other than if anyone allows it to distract them … it will have no bearing on this season whatsover.”

This story was originally published September 24, 2019 at 7:47 PM with the headline "Could KU’s infractions case wind up in federal court? ESPN’s Bilas offers opinion."