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Slippery Slope for the NCAA?

July 24, 2012

With its extensive sanctions against Penn State University, including a $60 million fine and penalties that could cripple the Nittany Lions football program for as much as a decade, the National Collegiate Athletic Association declared that it does indeed have jurisdiction to act in cases lacking clear evidence of specific violations of the group's rules.

As NCAA President Mark Emmert put it when he announced the penalties Monday: “Our first responsibility as outlined in our constitution is to adhere to the fundamental values of respect, fairness, civility, honesty and responsibility…. We can make clear that the cultural actions and inactions that allowed [children] to be victimized will not be tolerated in collegiate athletics.”

Yet only minutes later, Ed Ray, president of Oregon State University and chair of the NCAA Executive Committee, said this: “[What happened at Penn State] required the Executive Committee that has the authority to step up and exercise its right to deal with individual instances to do this… It’s only because of the extraordinary nature of this situation that we have in fact chosen to exercise that authority.”

Finally: “We do not see [the sanctions] as opening Pandora’s Box at all,” Emmert said.

The harsh penalties that the NCAA laid on Penn State finally answered the burning question of whether, and how, the association could address the most shocking scandal in college sports history. But it raised new, perhaps even more confounding ones: If the NCAA makes it its business to ensure that sports culture doesn’t “overwhelm the values of the academy,” as Emmert put it Monday, where else could (and should) they intervene? When trustees meddle excessively in management of athletics, as happened at Auburn University for more than a decade? When athletes sexually assault female students and campus officials shield their actions from public view? When powerful coaches abuse players or drive drunk or repeatedly break rules, and their bosses protect them?

The NCAA exercised its power through a never-before-used process in which its leaders and governing committees (rather than its traditional investigators and Committees on Infractions) are the ones who impose the penalties, essentially declaring that the association has the authority (under these rules) not only to enforce specific rules but to ensure that college programs act ethically. It's a brand-new approach that, in theory at least, dramatically broadens the scope of punishable offenses.

“Both Ed Ray and Mark Emmert tried to go out of their way to make it clear that they didn’t consider this a road map for the future in any way,” said Josephine R. Potuto, a law professor at the University of Nebraska at Lincoln and former chair of the NCAA’s Division I Committee on Infractions, which has historically been the NCAA body empowered with handing out penalties to sports programs. Nevertheless, she added, “I think what this will open the door to is much more of a clamor that the NCAA should be involved in cases that it hasn’t traditionally been involved in.”

Would These Cases Have Triggered 
Post-Penn State NCAA Action?
Bob Knight throttled players and acted uncivilly for years before Indiana U. fired him in 2000. He went on to coach at Texas Tech University.
The federal government is investigating charges that Marquette University failed to report allegations that athletes sexually assaulted female students.
 
Jerry Tarkanian repeatedly flouted NCAA rules,
but remained as basketball coach at the U. of Nevada at Las Vegas for 19 years  until resigning in 1992. He was then hired  by California State U.-Fresno -- which also ended up in NCAA trouble.

One former NCAA official who requested anonymity said the sanctions are “a slippery slope.”

“The way you handle any matter that involves an athlete or an athletic department staff member now appears to be subject to review by the highest levels of the NCAA,” the official said.

In this case, the NCAA came down -- wickedly hard -- on Penn State, seven months after the former assistant head coach Jerry Sandusky was arrested for raping and assaulting boys, sometimes inside campus athletic facilities. Less than two weeks have passed since an independent report concluded that Penn State's former president, Graham Spanier, and its former head coach, the late Joe Paterno, both of whom were fired in November, actively covered it up.

The standout penalty is a $60 million fine being levied against the university, which will establish an endowment to support programs serving victims of child abuse. That amount, Emmert said Monday, is equivalent to one year’s worth of football revenue (and the money may not come from academic funds or diminish Penn State's other sports programs, which football largely funds).

The football program is banned from any postseason play, including bowl games and conference championships, for the next four years starting with the upcoming season. (It will miss out on $13 million in bowl revenue during that time, the Big Ten Conference announced Monday; that money will instead go to area charities dedicated to child protection.) During each of those years, Penn State football may award only 65 total football scholarships, significantly fewer than the maximum of 85. From 2013-17, its initial scholarships (awarded to incoming athletes) will be slashed each year from a maximum of 25 to 15.

The university’s five-year probationary period will include the appointment of an “on-campus, independent Integrity Monitor” who will report quarterly to the NCAA, the Big Ten Conference and Penn State trustees. The NCAA is also requiring the university to adopt all the reform recommendations contained in the Freeh report, and to take a number of corrective compliance measures.

Finally, the NCAA vacated all the football team’s wins from 1998 -- the year campus officials allegedly first learned of allegations against Sandusky -- through 2011. As a result, Paterno is no longer the winningest coach in major-college history – that title now belongs to Bobby Bowden, the former Florida State University coach who retired in 2009 and who also vacated some wins due to an academic fraud scandal involving 10 sports. (Bowden won 377 games; Paterno’s win count fell from 409 to 298.)

Setting a Precedent ... or Not?

Mike Glazier, a lawyer who represents colleges and universities in collegiate sports matters, said the NCAA’s action against Penn State opens the door for it to take similar steps in future cases. But it should also move to ensure that next time, there’s no murkiness -- by having the NCAA rewrite its rules to clearly define when it will use the newfound jurisdiction that Emmert and the leadership committees have carved out in this case.

"Now that they have gone this way, I would hope that relatively quickly, they will act legislatively to clarify the source of the power they believe they have, in what circumstances they believe it’s appropriate to use it, and what, if any, process will be afforded members going forward when they determine that traditional enforcement procedures will not be used,” Glazier said. “As it stands now, a member institution’s handling of any matter that involves a criminal, moral or ethical issue away from the field of competition, yet associated with a student-athlete or athletics department staff member, may be subject to review by the highest levels of the NCAA. Clarification seems needed.”

In the past, Potuto said, the NCAA has shied away from cases that don’t clearly violate its bylaws, which deal more with providing free goods to players, academic fraud, and limiting contact with recruits than they do with systemic cover-ups and moral wrongdoings of egregious proportions. But the NCAA might still have some specific aspects of this case to point to if it doesn’t want to get involved in potentially sticky gray areas.

One is the fact that Penn State commissioned its own full and independent investigation into what happened. Usually, the NCAA does the investigating, holds a hearing with university officials who may also suggest self-imposed penalties, then comes back with sanctions (with lots of waiting for responses from said officials in between). In this case, it did neither -- not to mention that it got Penn State to sign off on all the sanctions.

“I think the NCAA -- rightly -- will be reluctant even in a case maybe of equivalent magnitude to try to go in early when there isn’t a fairly firm foundation for making the conclusions,” Potuto said. “There are advantages to getting things done quickly both for the institution and for the system. But there are risks to it.”

Even in this case, Potuto said, more information could emerge – in the trials of the former athletics director Tim Curley and the former vice president Gary Schulz, perhaps – that calls the Freeh report findings into question. (As it happens, Spanier, who has been silent since his firing in November, sent the trustees a letter Sunday night saying that some contents in the report were flat-out wrong, ESPN reported Monday.)

But the larger governance issues at the heart of the scandal should not be within the NCAA’s jurisdiction to address, said John R. Thelin, a professor of higher education history and public policy at the University of Kentucky.

“The irony is, I think they may use this episode to bring a certain kind of attention to the NCAA, and look like they’re doing something significant and powerful,” Thelin said. “We all agree that the conduct at Penn State is extraordinarily exceptional, but why only Penn State? I can think of many, many other things that were problematic and to me unethical and did a great deal of damage to the educational balance and proper balances in higher education, and I don’t see the NCAA taking that initiative.”

The NCAA’s decree that Penn State lost institutional control of its football program doesn’t hold water, Thelin said.

“I would argue almost the opposite. I think they had great control, and the board and the president and whoever down the chain of command pretty much got the control and deal that they wanted. And so I would look more closely at the trustees,” Thelin continued. “This almost seems like a high-profile opportunity for the NCAA to extend its domain, as opposed to really solving systemic problems.”

Emmert did issue a warning of sorts to other institutions. “Certainly the lesson here is one of maintaining the appropriate balance of our values. Why do we play sports in the first place, and does that culture get to a point where it overwhelms the values of the academy?” he said. When it does, Emmert said, “a variety of bad things can occur.”

Ray added, “Quite honestly, if the university culture had been as open, transparent, forthcoming, collaborative, cooperative as [current Penn State President] Rodney Erickson and the Board of Trustees have been over the last year, we wouldn’t be having this conversation.”

Given that Penn State hasn’t challenged the NCAA when it could have waged a legal fight (albeit probably an unsuccessful one), the association may feel emboldened to take similar steps against other institutions “should they be called for in the future,” said Michael McCann, director of the Sports Law Institute at the Vermont Law School. But don’t look for that to happen.

“I don’t think we’re likely going to see this type of sanction occur with any regularity,” McCann said. “Swift justice for issues that are not clearly violations of NCAA rules -- I think if there was a pattern of that, schools may lose some confidence in the NCAA.”

Glenn M. Wong, a professor of sports management at the University of Massachusetts at Amherst, agreed.

“This change in the process is really unique and unprecedented, and therefore this does not create a precedent,” Wong said.

At Monday’s press conference, NCAA officials also addressed widespread calls for it to issue the “death penalty” -- a ban from competition for at least one year -- on Penn State football. The association has invoked that punishment only a handful of times.

“Suspension of the football program would bring with it significant unintended harm to many who had nothing to do with this case,” Emmert said. “For the next several years now, Penn State can focus on the work of rebuilding its athletics culture, not worrying about whether or not it’s going to a bowl game.”

Doug Lederman contributed to this article.

 

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