Arizona and Kansas are Sweet 16 favorites who could also face NCAA penalties after tournament

Two of the biggest brands in college basketball are right where they want to be right now.

Kansas and Arizona both are conference champions. Both are No. 1 seeds in the NCAA men’s tournament. Both have reached the Sweet 16 after winning their first two games of March Madness.

It wouldn’t even be surprising if they each reached the Final Four in a marquee matchup in New Orleans.

But there’s a disquieting fact lurking behind their success. Both remain under the cloud of unresolved NCAA infractions cases that have been pending for years. Penalties could be meted out sometime after the tournament, including possible postseason bans.

“When I took this job, I knew what I was stepping into,” first-year Arizona coach Tommy Lloyd told USA TODAY Sports Saturday before a second-round game in San Diego. “And obviously the administration's been 100% transparent. And no one in the program had anything to do with what had transpired before. For me, I would say this: I want to do a good job for these guys, give them a chance to go to the NCAA Tournament. I was certain for this year we would be fine.”

Next year is a bigger question. The cases stem from an FBI investigation that was made public in September 2017 after 10 people were arrested including assistant coaches at Arizona, Oklahoma State, Auburn and Southern California.

The U.S. Justice Department alleged the coaches accepted cash bribes in exchange for steering players to certain financial advisers. Federal prosecutors also alleged that people associated with Adidas, the sport apparel company, funneled money to families of recruits, hoping they would sign with Adidas-sponsored teams at Kansas, Louisville and North Carolina State.

The investigation involved several schools that earned NCAA Tournament berths this month, including LSU, which fired its coach over it six days before the Tigers were set to play a first-round tournament game last week.

Last year, Arizona even self-imposed a postseason ban on itself, hoping it would mitigate any further punishment.

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Yet the case still hovers overhead even as times have changed dramatically in the meantime. The allegations came before sweeping reforms in college sports, including the advent of players being allowed to earn money for their names, images and likenesses (NIL). On Wednesday, Adidas even announced a new NIL program that will give eligible student-athletes at Adidas-sponsored schools the opportunity to become "paid affiliate brand ambassadors" for the company.

Though the federal cases didn’t involve NIL deals per se, they effectively criminalized breaking NCAA rules that banned paying players, recruits or their families.

“What most people see now is that this was an overreach by the federal government, that it looks especially unimportant in light of the changes we’ve seen in college sports now,” said Tim Nevius, a sports attorney and former NCAA investigator who since has become an NCAA critic and advocate of NCAA athletes. “I think that most people recognize that this is a huge industry that values the services of the players, that there’s money to be had and that elite athletes are going to get paid one way or another.”

The length of the process adds to the intrigue: Will these changing perceptions matter? Why is it taking so long to resolve? Does the delay help or hurt the schools? And why should current players and coaches be subject to any punishment for any misdeeds that happened long before they stepped on campus?

To find answers, USA TODAY Sports contacted legal experts who are familiar with NCAA enforcement, as well as a representative from the Independent Accountability Resolution Process (IARP), an alternative NCAA rules enforcement system that is handling several of these infractions cases.

Changing perceptions

Funneling money to recruits and current players once was one of the biggest sins in the NCAA rulebook. That was how it was viewed in 2017 when federal prosecutors said these schemes had subjected “the universities to substantial potential penalties by the NCAA.”

But last year NCAA athletes for the first time were allowed to earn money from endorsements and sponsorships. Under the new rules, sports apparel company Nike announced its first NIL deal with a college player last year when it sponsored UCLA women's soccer star Reilyn Turner.

Those from Nike who tried to sign her up didn’t need to fear arrest, unlike former Adidas executive James Gatto, who was sentenced to nine months in prison after being convicted of conspiracy to commit wire fraud for funneling illegal payments to families of recruits at Kansas, Louisville and North Carolina State. Federal prison records show he is now incarcerated in Oregon and is due to be released in November. Former Adidas consultant Merl Code was convicted of similar crimes and also is awaiting release in November after being imprisoned in South Carolina.

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“The IARP is supposed to apply NCAA legislation as it existed at the time the allegedly impermissible activity occurred,” said Joshua Lens, an assistant professor at Arkansas and former attorney who also previously worked in NCAA rules compliance at Baylor. “So recent changes to NCAA legislation such as loosening the reins on student-athletes’ name, image, and likeness shouldn’t directly impact the IARP’s handling of the cases.”

He said it’s similar to when the NCAA relaxed legislation regarding coaches’ ability to send recruiting text messages to recruits several years ago. Cases involving impermissible text messages continued to come out even after the rules were changed.

Lens also noted that NCAA rules enforcement is supposed to dis-incentivize cheating while helping level the playing field for coaches and teams that follow the rules, even if those rules might change later.

Why is this taking so long?

It’s almost been five years since this case became public. Some schools have had their cases resolved with discipline, including N.C. State (probation and scholarship reduction), Oklahoma State (postseason ban for 2022) and Auburn (four-year probation after a self-imposed postseason ban last year).

A number of schools opted to have their cases decided by the IARP instead of the NCAA, hoping for a better or fairer resolution from a group made up of independent investigators, advocates and adjudicators. The downside of the independence of the IARP is that IARP members generally might not know NCAA rules as well as NCAA enforcement staff and NCAA members. So the process might take longer than it otherwise would.

Amy Hanna, communications representative for the IARP, noted the cases were investigated by federal prosecutors for 20 months before the NCAA was allowed to begin its own investigation in April 2019. Then cases weren’t referred to the IARP until 2020.

She noted cases referred to the IARP are the “most complex cases in Division I athletics” and are taking longer to move through the process because of several factors, including voluminous case records, numerous procedural requests involving the various parties and difficulties in confirming mutually acceptable hearing dates.

“Independent Resolution Panel members take their obligations very seriously and are being very thorough and thoughtful in their actions and decisions,” Hanna said in an e-mail. She said the IARP could not provide information about specific pending cases as a matter of policy.

Does the delay help or hurt schools?

In a previous era of college sports, a pending NCAA infractions case could mean trouble in recruiting. That’s because recruits didn’t want to join a school that might get banned for the postseason or suffer scholarship reductions as penalties after an NCAA investigation.

But the changing times might be changing that perception, too. It doesn’t seem to be hurting Kansas or Arizona, both of which are two wins away from the Final Four. Kansas ranked fourth nationally in recruiting for 2022, according to 247Sports composite rankings. Arizona ranks No. 2 for 2023.

“The benefit to some of these schools and the coaches is that they’ve continued to operate with success in the interim and perhaps will be met with less severe penalties in light of the changing environment in college sports, which has changed dramatically since the alleged violations,” Nevius said. “The impact on recruiting is not as severe either because – given the long delays in these cases and changing rules in the meantime – people are more skeptical than ever that the NCAA can effectively regulate college sports.”

Asked if he was bothered the process was taking this long, Arizona coach Lloyd said Saturday he felt good that “Arizona has been proactive in making sure we're going to be tournament-eligible long term.”

One of those “proactive” steps was to self-impose a postseason ban last year. Arizona’s previous coach, Sean Miller, also was fired in April 2021.

The school is still accused of five Level 1 violations, including a lack of institutional control, which is also one of the most serious violations in the NCAA rulebook.

Kansas also is facing several Level 1 violations, including a lack of institutional control and a responsibility charge against head coach Bill Self. Former Adidas consultant T.J. Gassnola testified in in court in 2018 that he provided payments to the families of top recruits, including KU recruits Billy Preston and Silvio De Sousa.

“The institution failed to control and monitor the relationship between Adidas’ representatives with its storied men’s basketball program,” NCAA enforcement staff stated.

Unlike Arizona, Kansas has not self-imposed any penalties. KU didn’t return a message seeking comment but has strenuously fought the NCAA in this matter. It says the allegations are “baseless and littered with false representations.” Last year, KU gave Self a lifetime contract that included language saying he could not be fired "for cause" due to the "current infractions case."

Why should current players be penalized?

None of Arizona’s current players were on the team when these alleged transactions occurred. Former Arizona assistant coach Emanuel Richardson did time for his part already after pleading guilty to a federal bribery charge and being sentenced to three months in prison. Miller, the previous head coach, recently was hired at Xavier.

Yet it’s still possible that Arizona could be hit with more penalties. It doesn’t seem fair, but the argument for it is that justice takes time and institutions must be held accountable for egregious violations. Otherwise, they might tolerate cheating.

At the same time, the NCAA recognizes this dilemma. NCAA members adopted a new constitution in January that said regulations “must ensure to the greatest extent possible that penalties imposed for infractions do not punish programs or student-athletes not involved nor implicated in the infraction(s).”

The new constitution is effective Aug. 1.

“There is an overwhelming sentiment against punishing uninvolved players, which could water down the types of penalties that are imposed,” Nevius said.

This same issue still played out in ugly fashion in November, when Oklahoma State’s men’s basketball team was denied an appeal of its postseason ban for 2022. Former assistant coach Lamont Evans was found to have violated NCAA ethical conduct rules when he accepted between $18,150 and $22,000 in bribes from two financial advisors to influence student-athletes, according to the NCAA.

After the postseason ban was upheld, OSU coach Mike Boynton addressed the news media and named the names of members of the NCAA committee that ruled against his program.

“They felt good about the work they did, while I explained to 17 kids that their dreams of playing in the NCAA Tournament this year couldn’t be realized,” he said then. “And that’s shameful.”

The NCAA rebuked Oklahoma State for doing so.

“This is something college athletics has struggled with for decades,” Lens said.

In the meantime, Miller, the former Arizona coach, still could get penalized for his role in the case at Arizona.

“Universities take some risk by hiring coaches or extending their contracts while allegations are pending,” Nevius said. “Those risks are indicative of a risk-benefit calculation that speaks volumes about the NCAA's current enforcement challenges.”

Follow reporter Brent Schrotenboer @Schrotenboer. E-mail: bschrotenb@usatoday.com

This article originally appeared on USA TODAY: NCAA Tournament: Arizona, Kansas in Sweet 16 despite NCAA probe