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The NCAA Crosses a Line

November 23, 2011

The revelation last week that the National Collegiate Athletic Association would examine whether possible rules violations occurred somewhere in the mess that is Pennsylvania State University's sex-abuse scandal probably surprised few people.

To judge from what is known at this point, so many things appeared to go wrong at Penn State -- from possible sexual abuse of children, above all else, to apparent failures in administrative oversight -- that it seems logical that there is something for the major governing body in college sports to look into. After all, almost everyone else is, including the federal government.

But the association's decision to get involved in the Penn State situation is without precedent in its history, say several experts on NCAA enforcement.

While the NCAA has in the past held coaches and administrators accountable for unethical behavior, it has always done so in cases in which underlying violations of existing NCAA rules (academic fraud, improper payments to athletes) occurred. In this case, by contrast, the NCAA is beginning its inquiry (which NCAA President Mark A. Emmert says is not a formal investigation at this point) on the thesis that Penn State employees engaged in unethical behavior stemming from possible criminal misbehavior that, however heinous, represents no violation of NCAA rules.

Having opted to involve itself here, in what other kinds of situations will (or won't) the association step in -- or feel pressured to? Sexual assaults by athletes? Drunk driving or illegal gambling by coaches?

And the association, which in the past has purposefully stayed out of situations that involved potential criminal or civil wrongdoing until the legal process worked itself through, is inserting itself into the Penn State case right alongside pending criminal, civil, local and federal investigations.

It's understandable, for NCAA and college sports officials to look at a situation like Penn State and say, " 'This is an extraordinarily serious case, and there are behaviors of institutions that bear on all of us and are so significant that we need to find some way to go after it,' " says Josephine R. Potuto, a law professor at the University of Nebraska at Lincoln. But nothing in the association's current rules give it the authority to hold institutions accountable for unethical behavior that is not related to athletic competition, says Potuto, who headed the association's Division I Committee on Infractions from 2006 to 2008. "As somebody who teaches constitutional law, I'm a little uncomfortable with stretching NCAA bylaws for this purpose."

Adds another former infractions committee chair, David L. Swank of the University of Oklahoma's law school: "If you step across this line, where do you stop? Is it only criminal activity involving coaches? Administrators? Students? You’ve crossed the Rubicon, and where do you end up?"

A Piece of Penn State

In the year-plus since Mark Emmert became president of the NCAA, its members have faced a barrage of high-profile controversies and other issues, including scandals at powerhouses such as Ohio State University and the University of Miami and an escalating round of conference swapping that has made the involved universities look greedy and the NCAA appear powerless. Emmert has responded forcefully at times, including by convening a group of presidents this summer and winning their support to approve a package of academic and financial reforms at a greatly expedited pace.

Then came Penn State, which is a sports scandal in some ways (since it involves a former football coach and suggestions that Penn State officials ignored evidence of child sex abuse in the university's all-powerful athletics program) but has become a higher education and societal touchstone, too.

As federal agencies and other entities joined local prosecutors in investigating the events at Penn State, NCAA officials surely felt public relations pressure to weigh in, too -- but initially took a pass. On November 10, a few days after the allegations first became public, Emmert released a brief statement saying that the association was "monitoring developments," but that the NCAA would "defer" to law enforcement officials because the situation involved alleged crimes. "As the facts are established through the justice system, we will determine whether association bylaws have been violated and act accordingly. To be clear, civil and criminal law will always take precedence over association rules."

That has always been the NCAA's stance in the many previous instances -- and there have been many -- in which coaches and athletes at member colleges were accused of breaking both laws and NCAA rules concurrently; the association has let the matters run their course in the courts, and pursued its own form of justice only then.

But exactly one week after the initial statement, Emmert sent a letter informing Penn State's president, Rodney Erickson, that the NCAA would examine whether the circumstances at Penn State involved violations of NCAA rules that require institutions to control their athletics programs and campus officials to behave ethically. Emmert asked for answers from Penn State by Dec. 16 about how its officials have handled the issues raised in the grand jury report, and how they have complied with NCAA rules governing institutional control and ethical conduct in dealing with those issues.

The letter cites provisions in the NCAA's constitution and bylaws that require "institutional control" over sports programs, and others that prohibit unethical conduct and define it both specifically and broadly. The letter acknowledges that the list of 10 unethical behaviors that the rules specifically cite do not come anywhere close to the egregious behaviors at the core of the Penn State scandal, but says: "[I]t is clear that deceitful and dishonest behavior can be found to be unethical conduct. Surely, the spirit of this bylaw also constrains behavior that endangers young people."

Further, Emmert's carefully worded letter notes another NCAA rule, 19.01.2, stating that "individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example." That rule, Emmert writes, has been cited in several previous NCAA enforcement actions.

Break With Tradition

Emmert's letter goes out of its way to suggest that the association's decision to inject itself into the Penn State controversy aligns with its traditional practices in enforcing its rules -- an assertion he reiterated in an interview with The New York Times after the letter's release. “This is not in my mind or in many other people’s mind an unprecedented application of our bylaws and our constitution," he said. "It is a very unusual set of circumstances.” (The NCAA declined to make either Emmert or other officials available to Inside Higher Ed to discuss the Penn State letter.)

But several legal experts and others with significant experience in the NCAA's enforcement and infractions system say otherwise -- that the NCAA's decision to immerse itself in the Penn State scandal represents a clear break with the association's previous practices. Their views on whether the NCAA is wise to change its approach vary, and the experts disagreed to some extent on whether the NCAA's current rules give it the authority to delve into matters not related to athletic competition.

But there was widespread agreement that the new approach is a major change in the association's M.O., in several ways.

First and foremost, the association has ignored many previous situations in which coaches or athletes have engaged in dangerous or unethical behavior, or has involved itself only at the point when clear violations of NCAA competitive rules were discovered. Some of these clearly fall well short on the seriousness scale of what is alleged at Penn State -- cases in which coaches have been caught driving while intoxicated or drinking with students, for instance, or where they gambled on events other than college games.

But the NCAA has not gotten involved in the many instances in which athletes have been accused or found guilty of sexually assaulting fellow students (even in large numbers, as in the 2000s scandal at the University of Colorado at Boulder). And the NCAA got involved in a 2003 scandal in which one Baylor University basketball player killed a teammate only because the basketball program and its coach broke rules involving paying players and lying to investigators about those payments -- not because of the murder.

The association has, as its officials asserted, cited the bylaw that mentions "moral values" (19.01.2) in seven previous cases, including cases in 2011 and 1991 involving the University of Tennessee at Knoxville and several others in between. But in all of those cases, the findings of unethical conduct have emerged out of underlying violations of rules involving traditional NCAA concerns around competition or competitive equity. Never before, said several people knowledgeable with NCAA enforcement, has the association found unethical conduct or a lack of institutional control without a more fundamental finding of rule-breaking.

"To my knowledge, I don't think we've ever had a finding of lack of institutional control without NCAA rules," says Thomas E. Yeager, commissioner of the Colonial Athletic Association and a member of the Division I infractions committee throughout much of the last decade.

"If the NCAA wants to examine places where there have been criminal violations, they're really plowing new ground if there's no specific NCAA rule that's been violated," says Swank, a law professor at the University of Oklahoma. Swank and Potuto of Nebraska both say that as they read them, NCAA rules on unethical conduct are "written with athletic conduct in mind, not general behavior or conduct," as Potuto puts it.

"The NCAA is a member association, and if members of the association decided they wanted to broaden their reach to cover conduct by institutions in areas that are not related to athletic competition, there's no reason why they couldn't," Potuto says. But a change would be necessary, she adds.

Glenn M. Wong, a professor of sports management at the University of Massachusetts at Amherst and co-author of a 2009 paper that examined the NCAA's infractions appeals process, says he believes the existing NCAA rule language about ethical conduct and institutional control may be flexible enough that the NCAA can delve into noncompetitive matters like those involved at Penn State. But "it fits a lot of other cases past and current in which they have not investigated, and there could be a lot of cases in the future, too, in which they'd feel pressure to investigate," Wong says.

"Should they immediately file something against Syracuse [University]?" he says, referring to allegations, raised in the wake of the Penn State scandal, of child molestation involving an assistant basketball coach there. "What about conference realignment, where there have been allegations of breach of contract?"

Others raised recent cases in which Marquette University and the University of Notre Dame have been accused by the U.S. Education Department of inadequately investigating charges of sexual assaults by athletes against female students. 

As soon as it goes beyond wrongdoing specifically cited in the NCAA rulebook, which cases does the NCAA decide to involve itself in, and which not? "It gets real slippery, and what's the tipping point?" says Yeager.

Adds Potuto: "I'd be worried if you don't have specific language that defines what it is that's going to trigger this, you're going to get claims of, if you did it there, why not here?"

The Case for NCAA Involvement

Even some who question whether the NCAA has the authority under its current rules to dive into the muck at Penn State say they understand why the association is doing so.

Wong says the NCAA can make a credible argument that the Penn State scandal is "unprecedented" in the seriousness of the allegations and the potential finding of culpability by campus administrators in failing to act to stop the alleged sexual abuse by Jerry Sandusky, the former football coach. "This demonstrates that they're being proactive rather than reactive, and while the precedent may not be there for stepping in like this," with Emmert relatively new in his job, "you can argue that there's a new sheriff in town who can take different approaches."

That's largely the argument Emmert made to The New York Times. He said that he had sent the letter after consulting with the panel of college presidents that oversees Division I, and that the NCAA would not begin punishing individuals for actions unrelated to their jobs as coaches or administrators. “If a coach is off somewhere and gets a D.U.I.,” Emmert told the newspaper, “it’s completely different than allegations of covering up a crime being committed in your locker rooms.”

Exactly what the NCAA does in relation to Penn State might give it the opportunity to distinguish the scandal there from other cases in which it might (or might be expected) to intervene in the future, say Wong and others.

While Emmert's letter is vaguely threatening to Penn State, it does not promise an investigation, and in fact only asks questions, "so there are going to be places in the process where if the NCAA or its member institutions agree this isn't the right path, they can always call a halt to it," says Potuto.

And even if the NCAA does decide to take action against Penn State in some fashion, it can "write this up so that it doesn't put them in the position of being the morality cop in the future," says Wong. "It could argue that this is the worst scandal in college sports, and that it is such an egregious situation that these are the actions we're taking in this case, and this case only because of the special circumstances."

 

 

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