First, you need to realize that the Committee on Infraction's (COI) response to FSU's appeal is not a final decision.  Let's review how this process works.  

Prosecution:  NCAA Committee on Infractions (COI)

Defendant:  FSU

Judge (of the appeals):  NCAA Infractions Appeals Committee (IAC)  

So this response is from the COI, the committee that originally handed down the sanctions and is now opposing FSU's appeal.  It was issued in response to FSU's appeal.  The final judgement will come from the IAC, which as noted above, will consider the arguments from FSU and the COI before rendering it's final verdict.  The COI and IAC are comprised of different members.  

With that out of the way let's discuss the COI's response to FSU's appeal.  This is by far the longest article ever to appear on TomahawkNation (which just hit half a million visitors in under a year!), so please take your time reading.  I've pasted large sections of the NCAA's response inside, as well as some analysis.  

I.  Origin of the Case

 Rumor has it that this all could have been avoided.  Some say that FSU President T. K. Wetherell wanted Athletic Director Dave Hart out and went digging for dirt, ordering the full-scale investigation.  Let me be very clear:  there was no reason to investigate this.  Institutions disqualify athletes all the time for cheating and they do not decide to launch full-scale investigations into the case and they do not shoot off flares to alert the NCAA  The basketball player who admitted to cheating didn't have any eligibility left.  FSU should have failed him in the course and moved on.    This investigation was vindictive, personally motivated, costly in many ways, and unnecessary.

 So the number climbed from one basketball player to 22 because FSU decided to conduct an internal investigation.  FSU says there are 22 cheaters, but the NCAA wonders if there are actually more...

 Of course, the NCAA leapt at the chance to investigate a gift-wrapped violations case.  There was no need for FSU to investigate this as they did, and unfortunately for the 'Noles, FSU's investigation turned up much more than T.K. thought it would.  

 So that's the background.  

 This is particularly damning as FSU met all of the factors needed to impose a vacation of wins penalty.  FSU had a duty to uphold a culture of complainace and they did not do so.  The players were ineligible at the time of cheating.  

Standard of Review

 Ah yes, the dreaded "abuse of discretion" standard.  What does that mean?   Typically, it is a failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.

Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

Abuse of Discretion is a very difficult standard to overcome in an appellate proceeding.  FSU has to show that the NCAA's decision was clearly against logic and the evidence.  That won't be easy and the 'Noles are shelling out huge bucks to try to save Bobby's wins.  I doubt T.K. ever thought his attempt to force out Dave Hart (allegedly) would lead to his former coach and good friend Bobby Bowden losing his wins.  Could it be that FSU is appealing against the great weight of the evidence because T.K. feels guilty for doing this to his friend?  

ISSUE RAISED ON APPEAL & COMMITTEE RESPONSE

 The NCAA is essentially saying that FSU is the exact type of case for which the vacation of wins penalty was devised.  

   FSU:  "Pay no attention to the man behind the curtain".  NCAA Committee on Infractions:  "Oh, you mean THAT man that you tipped us to?  We would have never seen him had you not pulled the curtain back and shone the spotlight on him."  FSU's appeal really did fail to address the important issues and instead made arguments that briefly touched on the issue and then went off on other tangents.  I was unsure of how FSU would conduct their appeal because the NCAA's case looked very strong, but now that I see what they did it makes me sad to know that they have wasted huge dollars on this worthless endeavor.  

 This is very important so pay attention.  The NCAA changed the standard of review in 2008.  This effectively decreases the importance of previous successful appeals by schools who sook to regain their vacated wins.  FSU cites the Georgia Tech and Oklahoma cases, but those schools were appealing under the old standard.  It's doubtful they would win under the new standard, just as it is very doubtful FSU will prevail.  This really makes me wonder why FSU would appeal these relatively light sanctions.  The scholarship losses are minimal and won't impact the program going forward. The probation term is short.  The vacated wins only hurt the past, and rational people don't believe that Bowden will catch Paterno when they consider Penn State's cupcake non-conference schedule and pathetic Big 10 slate (Northwestern, Indiana, Purdue, Indiana, anyone?) against FSU's murderous non-conference gauntlet including games at Florida, Oklahoma, BYU, and USF, while playing in a conference that had 10 bowl teams last year.  Could it be that FSU is appealing because of a guilty conscience?  Whatever the reason, this appeal is foolish.  It continually drags FSU out into the public eye and allows writers to rehash FSU's problems.  FSU should have accepted the penalty and moved forward.  It is what they should do now before they waste more money in a ridiculous and losing public battle.

 This is sort of like disciplining your children.  There are many factors you will consider, but there is no set rubric you use.  Instead, you'll consider all of the factors when rendering your decision.  

Factor 1:  The Nature, Number, and Seriousness of the Violations

 FSU can't contest these findings because these are facts that FSU led the NCAA to when they shouted for the NCAA to come investigate and embarrass Dave Hart.  These are serious allegations, and they happen at most of the major D1 programs.  The difference is that other programs do not order ill-advised investigations into these matters.  To recap, FSU has admitted to the above findings and is still appealing.  

 Here the NCAA is laughing at FSU.  FSU said "hey, what about the Georgia Tech Case" and the NCAA COI said well um, you meet all of those factors.  Without much legal argument for this factor, we see FSU turn to other points which don't directly address the actual factors...

 The NCAA cites evidence that the cheating happened in more than one course and that one employee instructed other employees how to help the athletes cheat.  

 Disingenuous is right.  I took this course at FSU and did not cheat and anyone taking this course would have been forced to read those instructions before beginning the examination.  Ignorance is no excuse.  This argument from FSU is baffling and we should all be embarrassed that FSU's money is going toward this.  Explicit instructions that the test was to be taken without outside help of any kind, including notes (and obviously tutors), combined with signed admissions from students... and yet FSU still tries to challenge this point as some sort of mistake.  

Factor 2: Conduct & Motives of the Individuals Involved in the Violations

If I was running this appeal, I would leave this factor alone.  How can you spin your tutors giving answers to students during the test?  Can there be an acceptable motive here?  

 This would be quite funny if FSU hadn't seriously tried to argue this point.  

"We don't really believe the student athletes cheated.  They got inappropriate help"_  Florida State President T.K. Wetherell.

One of the more ridiculous statements T.K. has made in his time as president.  But there's more...

 The reason why Florida State's argument sounds sort of ridiculous is because FSU really has no leg to stand on, particularly considering the new elevated standard of "abuse of discretion."  We're condemning our conduct from one side of our mouth and denying it with the other side.  While the NCAA COI's response seems slightly unprofessional and overaggressive, it's clear that they are incensed that FSU is actually trying to appeal this decision.  I'm quite sure that the NCAA didn't want to badly punish FSU.  They will never again hammer an elite level program, it takes away too much money from their pocket.  Their thinking was probably like this:

"Okay, a few scholarships, slight probation, and we'll take some of Bowden's wins which doesn't matter any way because unless Paterno suddenly retires he will stay ahead of Bowden by virtue of a cakewalk schedule."

FSU is looking a gift horse in the mouth and spitting in its face.

 Yeah... I would have probably let this factor alone.  Challenging this factor just gave the COI another opportunity to unload on Florida State.  They are right, too, in that some of the athletes who took the course were guys who have struggled to stay eligible even with the easy "A" in the course.  I'm looking at you, defensive tackles...

Factor 3:  Corrective Actions Taken by the Institution 

 This is one of the more ridiculous paragraphs in the entire report.  It is saying "without a vacation of wins penalty, we would have taken away more scholarships and reserve the right to do so."  By going forward with this appeal Florida State is showing blatant disregard for the future of the program at the expense of protecting two seasons in which the 'Noles went 7-6.  While I don't think FSU will lose more scholarships (because they aren't getting the wins back), this action has to show Jimbo Fisher where the universitite's priorities really stand.  

 Takeaway:  

1.  It does not matter when FSU knew the athletes cheated, it matters when they cheated.  They are ineligible at that instant and that has always been the rule.  Further, FSU can't seriously attempt to argue that they weren't on notice of the cheating when their own tutors were perpetrating the cheating!      

2.  I'm very glad they FSU didn't lose any post-season appearances.  

 I can certainly understand FSU's desire to understand the weight of each factor, but I can equally understand the NCAA's need to maintain flexibility in evaluation and penalization.  Lacking a truly playable hand, FSU again drew for the precedent card.  

 This seems almost tongue and cheek and this whole response is a bit juveline (as was FSU's appeal).  The committee clearly believes that FSU's appeal is making a mockery of the system.  It is almost as if FSU expects to recieve credit (their wins back) simply for turning in their homework on time.  The important sentence here is that just as in the Ole Miss case (the original case setting out the factors), FSU's negatives far outweigh its positives.  

Tomorrow:  Factors 4-7 and a conclusion!