2017-18 Season
Ad Hoc Appeal Review Committee Decision
April 20, 2018
Background: LC Athletic Director Todd Caughlin filed an Appeal with the ACAC office on March 28/18 in reference to ACAC Commissioner Bill Hendsbee’s Ruling of March 20/18 which determined that he did not find there to have been a violation of ACAC Operating Code Article I, Section 7, Rule 1.6. This ruling was in response to allegations put forward by Lethbridge College on March 5/18 that individuals associated with the RDC MVB program had made contact with a current member of the LC Men’s Volleyball program for the purpose of recruitment, contrary to ACAC rules.
Step 1 of the ACAC Appeal Process requires that an Ad Hoc Appeal Review Committee of ACAC members chaired by Bob Murray and including Linda Henderson and Colin Kubinec, meet to determine if there are sufficient grounds for the Appeal to move forward to Step 2 and be considered by an ACAC Appeal Tribunal.
The Role of the Ad Hoc Review Committee:
Per OC Article III, Section 4, the following describes the role of the Ad Hoc Review Committee:
8. Evaluation of Grounds for Appeal
8.1 The Case Manager shall convene an ad hoc evaluation committee consisting of the President, the President-Elect and one Council member to review the appeal to determine whether it meets the Grounds for Appeal identified in item 6 above. Should, in the opinion of the Case Manager, there be any evidence of conflict of interest with one of either the President or President-Elect, the Case Manager shall replace that member with an alternate from amongst Council.
8.2 More specifically, the ad hoc committee then has a responsibility to:
a) Determine if appeals are within the jurisdiction of this Policy;
b) Determine if appeals are brought in a timely manner;
c) Determine if appeals are brought on permissible grounds;
8.3 In the event the Ad Hoc Committee finds sufficient grounds for an appeal, the hearing shall be scheduled to be held within seven (7) days as per OC, Art. III, Sec. 4, 9.
Ad Hoc Review Committee Meeting:
The meeting of the Ad Hoc Review Committee by WebEx video conference was convened on Friday April 6/18, where the original ruling, as well as all evidence and appeal documentation submitted by Lethbridge College was reviewed by the Ad Hoc Appeal Review Committee. The declared Grounds for Appeal put forward by LC from the excerpted list of 6 possible Grounds for Appeal in the ACAC Operating Code was d) and f) – referenced herein:
Grounds for Appeal according to OC Article III, Section 4:
6. Grounds for Appeal
6.1 Not every decision may be appealed. Decisions may only be appealed, and appeals may only be heard, only if there are sufficient grounds for the appeal. Sufficient grounds for appeal will include a minimum of one of the following as it relates to the decision rendered by the respondent:
a) Making a decision for which it did not have authority or jurisdiction as set out in governing documents of the Conference;
b) Failing to follow procedures as laid out in the By-Laws and/or Operating Code of the Conference;
c) Making a decision that was influenced by bias;
d) Failing to consider relevant information or taking into account irrelevant information in making the decision;
e) Exercising its discretion for an improper purpose; and/or
f) Making a decision which was grossly unreasonable.
Decision: Whereas the Ad Hoc Appeal Review Committee unanimously determined that the Appeal subject is within the jurisdiction of this Policy and was brought in a timely manner; it was also determined that the appeal satisfied the requirement of d) Failing to consider relevant information or taking into account irrelevant information in making the decision;
The conclusion therefore is that the Appeal submitted by LC has satisfied one of six permissable Grounds of Appeal for the Appeal to move forward to step 2 of the ACAC Appeal Process, to be considered by an Appeal Panel Tribunal.
Rationale: The Ad Hoc Committee rejected the position put forward by LC that the Commissioner’s decision was in any way grossly unreasonable. Given the unusual and complex circumstances, it was deemed to be a reasonable conclusion for the Commissioner to reach in his ruling. However, the Ad Hoc Review Committee did agree that the Commissioner did not take into account relevant information that was put forward by Lethbridge College in the Appeal documentation. While not unexpectedly, it appears that the Commissioner did not review the CCAA Operating Code under which the ACAC is bound to comply, which in the judgement of the Ad Hoc Appeal Review Committee describes an individual student-athlete as a team representative and therefore by extension governed by the ACAC recruiting rules team which reference team representatives or delegates.
The Commissioner’s ruling states that, “As neither of these individuals (ie. the two RDC MVB student-athletes implicated) is an athletic staff member their contact with Mr. Whitehead would have to be deemed to have been as a “delegate of athletic interest’ in order for me to find a violation of the rule.” The Committee agreed that the definition of a team delegate requires further consideration.
Conclusion: As per the decision of the Ad Hoc Appeals Review Committee and OC Article III, Section 4, the determination is that sufficient grounds for the appeal are found and the Appeal will be considered by an Appeal Panel. The original decision of the Commissioner is stayed pending the outcome of the Appeal Panel Hearing.
C. ACAC Conference Council
Bill Hendsbee, ACAC Commissioner
ACAC Office Staff
Decision of Appeal Tribunal - Recruiting Violation - RDC MVB
May 1, 2018
Background summary:
- Lethbridge College Athletic Director Todd Caughlin filed an appeal with the ACAC on March 29/18 in response to ACAC Commissioner Bill Hendsbee’s March 20/18 Ruling following submission of a Lethbridge College allegation of Recruitment Rule violations (Operating Code Article I, Section 7) committed by members of the RDC Men’s Volleyball Program (see attached ruling).
- During the 2018 ACAC Men’s Basketball Championships being hosted at Lethbridge College from March 1-3, Todd Caughlin shared a series of screen-captured text message exchanges provided by LC MVB student-athlete Dax Whitehead which Mr. Whitehead received from RDC MVB student-athletes Adam Turlejski and Regan Fathers. The content of those conversations was an effort by Mr. Turlejski and Mr. Fathers to persuade Mr. Whitehead to leave LC and enroll at RDC to compete his final year of ACAC MVB eligibility.
- LC submitted a request to the Commissioner for a ruling about a possible ACAC Recruiting violation (OC Article I, Section 7, 1.1).
- Mr. Hendsbee subsequently ruled that, “… there is no evidence that either Mr. Turlejski or Mr. Fathers were acting as agents of the RDC athletic staff. Accordingly, I do not find there to have been a violation of Operating Code Article I, Section 7, Rule 1.6”.
- An ACAC Ad Hoc Appeal Review Committee unanimously agreed on April 10/18 to accept that - d) Failing to consider relevant information or taking into account irrelevant information in making the decision; (OC Article III, Section 4, 6.) - constituted acceptable Grounds of Appeal for the Appeal to move forward for consideration and a ruling by an ACAC Appeal Tribunal.
Appeal Tribunal Hearing:
- The Appeal Panel Tribunal consisted of Wade Kolmel (Chair), Alan Rogan and Francois Fournier. Mark Kosak continued in the role of Case Manager from Step 1 to Step 2 in the Appeal Process.
- The Appeal Hearing was conducted by three (3) WebEx video conference meetings on Tuesday April 17/18, Wednesday April 18/18, and Monday April 23/18.
- Appellant Todd Caughlin from Lethbridge College was provided the opportunity to present the Lethbridge College Appeal of the Commissioner’s ruling, and to answer questions from the Appeal Tribunal on April 17/18.
- Red Deer College representatives including Athletic Director Diane St-Denis and Men’s Volleyball Head Coach Aaron Schulha, were invited to respond to the Appeal and to answer questions from the Tribunal on April 18/18.
- A third meeting of the Tribunal was conducted on April 23/18 for the Tribunal to review the information collected and deliberate to reach a decision.
- The role of the Appeal Panel Tribunal, as described in OC Article III, Section 4, is as follows:
10. Appeal Decision
10.1. At the conclusion of the hearing, the Appeal Panel will, within the appropriate timeline, issue a written decision with reasons. The Appeal Panel may decide:
a) To reject the appeal and confirm the decision being appealed; or
b) To uphold the appeal and refer the matter back to the initial decision-maker for a new decision; or
c) To uphold the appeal and vary the decision should it find that an error occurred, and such error cannot be corrected by the original decision-maker for reason of lack of clear procedures, lack of time, or lack of neutrality; and
d) To determine whether costs of the appeal, excluding legal fees and legal disbursements of any parties, will be assessed against any party. In assessing costs, the Appeal Panel will take into account the outcome of the appeal, the conduct of the parties and their respective financial resources.
Decision:
The Appeal Panel unanimously agreed: c) To uphold the appeal and vary the decision finding that an error occurred, and such error cannot be corrected by the original decision-maker for reason of lack of clear procedures;
The Appeal Tribunal determined that the error of interpretation of who can be considered ‘Delegates of Athletic Interest’ cannot be corrected by original decision-maker Commissioner Hendsbee who determined that student-athletes were excluded, contrary to the opinion of this Appeal Tribunal.
The decision of the Appeal Tribunal is that the following Operating Code violations were committed:
- Article I, Section 7, Item 1.6 - RDC MVB student-athletes Adam Turlejski and Reagan Fathers have been determined to have initiated contact with athletes registered at another institution for the purpose of enticing transfer.
- Article 1, Section 3, Item 4.1 & 4.1.1. – RDC student-athletes Adam Turlejski and Reagan Fathers have been determined to have breached the Ethical Guidelines for Student Athletes
- Article III, Section I, Item 2.3.1.1 - Member Institution RDC has been found in violation of the rules of the conference as student-athlete members of their 2018-19 Men’s Volleyball team breached ACAC rules.
As a result, the following penalties are assessed:
- RDC MVB student-athletes Adam Turlejski and Regan Fathers are suspended from participation in two ACAC Regular Conference matches to be served during the first regular season matches of the 2018-19 ACAC Volleyball season.
- A fine of $1000 to be paid by RDC for contravention of the Operating Code by two RDC student athletes.
- RDC MVB student-athletes Adam Turlejski and Regan Fathers are hereby directed to each submit a letter of apology to the Lethbridge College MVB program (addressed to the LC Head Coach) acknowledging their actions were in violation of ACAC recruiting rule 1.6 and the ACAC Code of Ethics for student-athletes.
- RDC MVB Head Coach Aaron Schulha and RDC Athletic Director Diane St-Denis are directed to co-sign a letter of apology addressed to Lethbridge College Athletic Director Todd Caughlin, acknowledging that the actions of the two RDC MVB student-athletes constituted a violation of the provisions of ACAC recruiting rule 1.6 and the ACAC Code of Ethics for student-athletes.
Rationale:
- The Appeal moved from Step 1 to Step 2 based upon dissent with the interpretation of OC Article I, Section 7, rule 1.6: Athletes Registered at Another Collegiate Institution: No member of an athletic staff or other delegate of athletic interest shall contact, directly or indirectly, the student of another collegiate institution to discuss the possible attendance of the athlete at their collegiate institution unless that student makes the initial contact with the delegate of the institution.
- Commissioner Hendsbee ruled on March 20/18 that since neither of the two RDC student-athletes who sent the messages to LC student-athlete Dax Whitehead is an athletic staff member, their contact with Mr. Whitehead would have to be deemed to have been as a “delegate of athletic interest to find a violation of the rule.” He concluded that there is no evidence that RDC student-athletes Mr. Turlejski or Mr. Fathers were acting as agents of the RDC athletics and accordingly he did not find there to be a violation of Rule 1.6.
- Lethbridge College put forward the position that a ‘Delegate of Athletic Interest’ does indeed include current student-athletes and accompanied with examples of support excerpted from both the ACAC and CCAA Operating Codes. Similarly, Red Deer College countered with examples from both ACAC and CCAA Operating Codes suggesting that student-athletes should not be interpreted to be ‘delegates’ of the institution where they attend.
- The Tribunal agreed that both institutions successfully identified ACAC/CCAA Operating Code sections and rules to adequately support their position and that an argument could be made in either direction with respect to whether a student-athlete can be defined as a ‘delegate of athletic interest’ of an institution. The Appeal Tribunal concluded however, that despite the variety of interpretations of a student-athlete as a delegate within the Operating Codes, it can be construed from the text messages sent by the two RDC student-athletes that their behaviour was consistent with what could reasonably be judged as delegates of the RDC Men’s Volleyball program in their overt attempts to persuade Mr. Whitehead to leave LC and join the RDC program. Mr. Whitehead clearly and unequivocally disclosed that he has no history of friendship or any personal relationship with either Mr. Turlejski nor Mr. Fathers, so any suggestion that this was merely ‘friendly banter’ between former teammates/friends/colleagues/etc. can be discounted.
- Article III, Section I ‘Report and Investigation of Alleged Violation(s) of the Operating Code by Athletes, Coaches, Athletic Directors, Managers and Staff Members’ implies that student-athletes are bound to comply with the provisions of the ACAC Operating Code as would be expected by any other individual associated with an ACAC member institution, whether categorized as a paid staff person or not. Although it cannot be concluded that the RDC student-athletes were acting under the direction of anyone employed by RDC, it is reasonable to interpret that as members of the RDC MVB program they were acting as ‘Delegates of Athletic Interest’ given that they were aware of the recruitment needs of the MVB program, they researched and located the contact information for Mr. Whitehead and they subsequently sent unsolicited messages inducing to Mr. Whitehead to transfer to RDC without having established a previous personal relationship with him beyond being ACAC competitors.
- While there is no evidence to conclusively link Coach Schulha as guiding the recruitment actions of the two RDC student-athletes, by his own admission Coach Schulha commented that when he became aware that Mr. Tulejski had reached out to Mr. Whitehead, he did not do enough to ensure that the contact ceased. In hindsight, Coach Schulha acknowledged that although he informed Turlejski that as a coach he could not speak with Mr. Whitehead until Mr. Whitehead reached out and contacted Mr. Schulha, he could have taken more clear and definitive action to ensure that the possibility of any future contact would not continue. Coach Schulha indicated he was not aware that Mr. Fathers had also reached out to encourage Mr. Whitehead to join the RDC MVB program. In a separate conversation, Mr. Turlejski described his efforts to recruit Mr. Whitehead with Mr. Fathers which appeared to encourage Mr. Fathers to also reach out as well. In essence, Coach Schulha did not complete the conversation with Mr. Turlejski about his ‘recruitment actions’ and to cease any further contact with Mr. Whitehead. As a coach in the ACAC there is an expectation that Mr. Schulha is knowledgeable about ACAC recruitment rules and that he should have foreseen that the ethical breach implicit in the conduct of his student-athlete required more assertive action. Ultimately a head coach is accountable for the conduct of student-athletes within his program as it relates to adherence of ACAC Code of Ethics, ACAC values and compliance with the Operating Code.
Implicit within the entire ACAC Code of Ethics section of the Operating Code is the expectation for adherence to ethical behaviour and the collective commitment to preserve the integrity of the ACAC. The first line within Article I, Section 7, of the ACAC Recruiting Rules clearly states, “The Recruiting Rules are in place to protect the integrity of the ACAC”.
- Finally, there is precedence in the Commissioner’s Ruling of June 29/17 (ACAC MBB Recruiting Violation. MHC) that whether deliberate or not,an institution is responsible for a Recruiting Violation committed by an individual affiliated with the institution. In the matter cited herein, it was the MBB Head Coach who was found to be in violation and a penalty of a $1000 fine was issued to MHC by Commissioner Hendsbee.
- It is recommended that Article I, Section 7, 1.6 be submitted to the appropriate ACAC Committee or OMT to review the language and ensure clarity.
- As per OC Article III, Section 4, 12.1, the decision of the tribunal will be final and binding upon the parties and upon all members of ACAC.
- LC will be refunded the $500 Appeal deposit.
This ruling will be circulated to the ACAC Conference Council 3 days after presentation to the appellant and the respondent.
Please direct any comments, questions or concerns to the Case Manager.
c. ACAC Conference Council
Bill Hendsbee, ACAC Commissioner
ACAC Office Staff |