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RESPONSE OF LOUISIANA STATE TINIVERSITY TO NCAA ENFORCEMENT STAFF'S REQUEST TO REFER CASE NO.00909 TO THE INDEPENDENT ACCOUNTABILITY RESOLUTION PROCESS AUGUST t8,2020 Response to Referral Request Louisiana State (Jniversity-Case No. 00909 TABLE OF'CONTENTS U. RESPONSE AND REOUESTED BIFURCATION OF FOOTBALL INOUIRY....................2 A. Timeline of Football Inquiry..... ...........2 B. LSU's Position on Football Referral and Request for Bifurcation...............................3 C. Timeline of Basketball Inquiry 5 D. E. LSU Has Cooperated Fully Throughout the Investigation and Has Insisted on Coach Wade's Cooperation.... 8 Response to Refercal Request Louisiana State University-Case No. 00909 Page I I. INTRODUCTION Louisiana State University ("LSU" or "IJniversity") fully understands and subscribes to the "Principles for Conduct of Intercollegiate Athletics" set forth in the NCAA Constitution, Article 2, and, acknowledges that those principles are not program-specific; rather, they require institution-wide application. However, there is no requirement that all pending enforcement inquiries of a member institution's athletic programs be cumulated into one case, particularly where, as here, notice(s) of allegations have not been issued, the underlying facts relating to potential violations across two sports are factually and temporally disconnected, and the inquiry in one sport has been complete for months while the inquiry of the other sport, by the enforcement staff s own estimation, may require up to 59 additional interviewsr, presumably to be conducted (in the event of refenal) only after tne Comptex Case Unit ("CCU") designees spend significant time reviewing the existing basketball case file to familiarize themselves with the work that has already occurred. ln fact, under similar circumstances, the enforcement staff and Committee on Infractions ("COI") have recognized the soundness and fundamental fairness of bifurcating disparate pending inquiries of separate sports where one inquiry is complete and ready for resolution.2 Thus, instead of consolidating the two investigations, the proper (and most efficient) course would be to bifurcate the potential allegations dealing with the football program and those dealing with the basketball program. These inquiries can and should be addressed and resolved separately, principally though not exclusively because the football investigation is complete and now ripe for resolution; the basketball investigation is quite the opposite. Bifurcation is further supported here, particularly at this juncture, where the enforcement staff s request for referral to the Independent Accountability Resolution Process ("IA2>"; makes only passing mention of the football inquiry and argues with little conviction that one factor meriting refenal under Bylaw 19.11.3.1.1 relates to the football inquiry.3 Indeed, the referral request focuses almost entirely on the basketball inquiry and more specifically the enforcement staff s view that the head basketball coach's production of phone records, though now complete, was dilatory. Every factor cited by the enforcement staff reverts back to this one contention - that Will Wade ("Coach Wade") should have produced the documents sooner.a While LSU disputes many of the assertions and suggestions contained within the enforcement staff s request, even if true, LSU believes that those claims (and the referral factors they purport to satisfli) should not cause the transfer of the distinct football inquiry with no independent supporl for referral of that completed investigation. Here, both the enforcement staff and the University acknowledged throughout the inquiries that the football and basketball cases might ultimately be handled separately, and this case (Case No. 00909) was proceeding under those exact parameters and guideposts for bifurcation. The inquiries have been treated separately from the start, with the parties discussing on several occasions the goal of processing the cases separately. Separate verbal notices of inquiry were issued by the NCAA in the two sports, and at different ' See request letter, p. 9. 2 See.e.q.. SoutheastMissouriState[Jniversity(20t7),p 2,-fn.4("[t]oensureafairandtimelyresolution"of the women's basketbail program review, the institution, enforcement staff and COI all agreed that the case should be 3bifurcated from the men's basketball case). At p. 7 of the request, the staff suggests that factor 1 (cases involving major policy issues that may implicate NCAA core values and commitments to the collegiate model) warrants referral of the football inquiry, while acknowledging "that many infractions cases involve similar types of behavior." If referral factor 1 can be applied so loosely, there are few if any Level I or II violation infractions cases that would not qualify for referrai, a result clearly anot intended upon development of the IARP. See, e.g., p. 8 of the request: "Mr. Wade's lack of timeliness and his refusal to make a complete production of vital communication records for thirteen months, satis0/ each element of this referral factor." Response to Refewal Request Louisiana State University-Case No. 00909 Page 2 times. A different enforcement staff member was placed in charge of each inquiry, Moreover, the interviews and fact gathering in the football inquiry were conducted independent of the basketball investigation. Consequently, the cases have followed incongruent timelines, with football completed and basketball far from so. The University made known its preference from early in the football investigation that the football case be considered for summary disposition or negotiated resolution, based on a clear agreement on the underlying facts by all involved parties and on recognition by the enforcement staff and the University that the football investigation would be concluded as much as a year earlier than the basketball investigation. As recently as one week before the enforcement staff s referral request, the staff and the University were discussing negotiated resolution ofthe football case. Then, however, based on a decision by the Infractions Referral Committee ("IRC") to refer a case involving the football and men's basketball programs at another institution, the University of Kansas, to the IARP (and thereby reject Kansas' bifurcation request), the enforcement staff halted further negotiations, informing LSU that bifurcation was no longer possible.s The IRC's decision in the Kansas case is not publicly available; hence, LSU is unable to specifically address issues and concerns that may have been raised by the IRC in that opinion. However, LSU submits that, regardless of the forum in which they are adjudicated, bifurcation of the football and basketball investigations is the efficient, fair and proper result here, as detailed below. But, barring a showing that the IRC's decision in the Kansas case is based on facts closely analogous to the facts presented in this request * both as to time and allegations -the mere fact that the IRC has rejected another institution's request for bifurcation should not provide a basis for rejecting LSU's request in these cases. Neither the NCAA bylaws nor the IRC or IARP procedures automatically compel such a result. II. Rmspnt\Istr' aNn pu'r)IIESTED BIFITP'ATTrlN NF'ENrlTRAT T TNrTTTDV A. Timeline of Football Inquiry On November 6,2018, representatives of the Franciscan Missionaries of Our Lady Health System ("FMOLHS") met with LSU counselto provide a verbal summary of a preliminary audit finding involving former Our Lady of the Lake Foundation President, John Paul Funes ("Funes"). The audit had determined that Funes used OLOLF funds to pay a former LSU student-athlete's father for work, with the payments far exceeding the value of the work performed. This was LSU's first.notice of the potential violation. That same day, at the direction of the University's President and Director of Athletics, LSU's counsel contacted the NCAA Vice President of Enforcement to share the information that had been provided by FMOLHS. Following discussions with LSU, theNCAA issued averbal notice of inquiry on December3,2018, and discussed with LSU a plan for jointly investigating the potential violations. On December 5,2018, LSU shared with the NCAA enforcement staff materials pertaining to the audit findings that it had been able to procure from FMOLHS. Due to the criminal investigation into Funes' conduct and subsequent indictment, investigative efforts were delayed. However, LSU counsel worked closely with the U,S. Attorney's office and with Funes' counsel in an effort to secure Funes' interview, which took place in July 2019. LSU was also able to secure interviews of the parents of the former student- athlete, which took place in August 2019. 5 Based on documents that the University of Kansas has published on its website, specifically its Response to the COI's Petition for Referral to IARP, along with the public announcement on the NCAA and IARP websites indicating that referral of the Kansas case had been approved, LSU understands that this committee rejected Kansas' request for bifurcation of its football and basketball allegations. As detailed below, the LSU case is different and bifurcation here is proper, efficient and fair. Response to Refetal Request Louisiana State University-Case No. 00909 Page 3 Also duringthis inquiry, on June 25,2019, LSU outside counsel received acall fromtheNCAA regarding a wholly unrelated violation involving improper contact between Coach Orgeron and, a 2020 prospective