Once Again, NCAA Tests the Boundaries

In investigating Michigan State and Larry Nassar, sports group is crossing into new enforcement territory unlike anything since its inquiry and punishment of Penn State, experts say.

January 25, 2018
 
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Widespread public opinion holds that the National Collegiate Athletic Association botched its punishment of Pennsylvania State University and the sex-abuse scandal of former assistant football coach Jerry Sandusky.

Most of the meaningful sanctions applied to Penn State were reversed. The NCAA was accused of overreaching its bylaws in investigating the university, and simultaneously of being toothless.

The association is setting itself up for a similar dilemma with Michigan State University and the horrors committed by Lawrence G. Nassar, a former doctor with the American gymnastics team who also spent decades treating athletes at the university.

More than 160 women accused him of sexual abuse, and Nassar, already serving a 60-year sentence on federal child-pornography charges, was sentenced Wednesday to up to 175 years in prison for his crimes, to which he pleaded guilty. The NCAA will investigate Michigan State, it confirmed Tuesday, but its questions around Nassar far exceed its usual inquiries into what is usually much milder misconduct -- misbehavior by coaches or impropriety among boosters.

Once again, questions arise: Do NCAA rules allow the association to intervene in criminal matters? If so, does the Michigan State investigation, if done correctly, mark a new era of NCAA enforcement?

Athletics and legal experts are skeptical, though, of the NCAA's rationale for investigating the case.

The association remained largely silent as the Nassar trial played out, as many Americans grew outraged as more women and girls came forward and media reports revealed that Michigan State representatives knew of the alleged abuse far before Nassar's arrest. Among them were the embattled Michigan State President Lou Anna Simon, who learned of a complaint against the doctor as early as 2014. (Simon resigned under pressure late Wednesday.)

On Tuesday, though, the NCAA wrote to athletics director Mark Hollis, asking for information on Nassar and any potential rule violations.

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“Larry Nassar’s heinous crimes of record against more than 150 victims raise serious concerns about institutional practices, student-athlete safety and the institution’s actions to protect individuals from his behavior,” the letter reads.

The NCAA has declined to comment beyond a statement acknowledging the letter to Michigan State.

Hollis said in a statement that Michigan State would cooperate with an investigation.

“Since my first day on the job as athletic director, my focus has always been on the student-athlete. They are at the core of our athletic department mission statement. Our first priority has always been and will always be their health and safety,” he said.

In the letter, an NCAA official cites a bylaw (which is what the association calls its rules) governing NCAA Division I institutions’ “commitments” to the NCAA model and the division. The bylaw notes that these particular commitments, related to athletes' well-being, “are not binding” on Division I colleges and universities “but serve as a guide for the preparation of legislation by the division and for planning and implementation of programs by institutions and conferences.”

For this case, the official cited the following:

"Intercollegiate athletics programs shall be conducted in a manner designed to enhance the well-being of student-athletes who choose to participate and to prevent undue commercial or other influences that may interfere with their scholastic, athletics or related interests. The time required of student-athletes for participation in intercollegiate athletics shall be regulated to minimize interference with their academic pursuits. It is the responsibility of each member institution to establish and maintain an environment in which student-athletes' activities, in all sports, are conducted to encourage academic success and individual development and as an integral part of the educational experience. Each member institution should also provide an environment that fosters fairness, sportsmanship, safety, honesty and positive relationships between student-athletes and representatives of the institution."

Because of this language, it’s unclear whether an institution could "break" this bylaw. Never before has an athletics program been found to have violated these “commitments,” according to a search of the NCAA's database of major rules infractions.

The letter does not mention any of the more serious infractions in the NCAA rule book -- a "lack of institutional control" (which Penn State was charged with) or "failure to monitor," but because these terms can be so ambiguous, the NCAA can essentially pick when it wants to come down on an institution, said Marc Edelman, professor of law at Baruch College and a sports law specialist.

“The fact that the NCAA indeed punished Penn State seems to create, at least internally, some form of precedent,” he said. “If the NCAA were to turn around and say that it does not have jurisdiction to investigate Michigan State, then this would be one more instance the NCAA comes across as hypocritical and picking and choosing which schools it makes into examples.”

Before the association told Penn State in November 2011 that it would examine possible infringements of its rules, it had historically skirted punishing its members for behavior that would be considered criminal. The association went after unethical conduct that lay firmly in the athletics realm. And indeed, initially NCAA president Mark Emmert, in a statement, deferred to law enforcement on the Sandusky case.

Amid significant public pressure, though, Emmert announced in 2012 some of the most crippling sanctions in the association’s history, outside the rarely used “death penalty.” Emmert completely bypassed the typical NCAA process, in which consequences are typically investigated by the association's enforcement team and then adjudicated by a designated committee.

Instead, basing its conclusions on the investigation into the Sandusky affair that was commissioned by Penn State and conducted by former FBI director Louis J. Freeh, Emmert, with the support of the NCAA's Executive Committee, slapped Penn State with a consent decree that meant the university would vacate 112 football wins from 1998 to 2011, including multiple Big Ten titles under the late coach Joe Paterno. The university also would give up four years of postseason play, see its scholarships drastically reduced and pay a $60 million fine, which would go toward preventing child abuse. (In a bit of irony, the head of the Executive Committee at the time was none other than Simon, the Michigan State president.)

Then, one by one, the Penn State punishments were rolled back.

The NCAA returned the full number of scholarships to Penn State and lifted the institution’s postseason ban. In 2015, it restored all of Paterno’s wins, part of a settlement in a lawsuit alleging the 2012 consent decree was illegal. NCAA emails emerged in court proceedings that showed some officials were unsure whether they had authority in imposing such strong sanctions, with one NCAA representative calling them “a stretch” and “a bluff.”

Edelman said that in some ways, the NCAA has more grounds to investigate Michigan State because some of the sexual assault survivors were college athletes -- not so with Sandusky's victims.

But Josephine R. Potuto, a former member of the Division I infractions committee and the Richard H. Larson Professor of Constitutional Law at the University of Nebraska at Lincoln, said the NCAA erred stepping in on the Sandusky case, and has done so again with Michigan State.

The NCAA hasn’t drafted bylaws to address this, Potuto said. While Nassar’s actions are “truly despicable,” she said, and some sort of university investigation should root out whether employees protected Nassar, right now, “it’s not the NCAA’s job.”

Potuto suggested perhaps there could be a rule that a coach or employee would be fired in this situation, but she warned of unintended consequences.

“This case was pretty easy,” she said, referring to Nassar. “There were criminal convictions, lots of victims. You have the individual pleading guilty. In any other case, do you suspend, fire people, make them ineligible? All of those things have consequences.”

In the last year, the NCAA has been continually derided as ineffective.

First, it was taken by surprise with the revelation of a scheme in the world of men’s basketball. Federal officials announced that four assistant or associate coaches at high-profile programs had been arrested for allegedly steering recruits to institutions sponsored by Adidas in exchange for cash payments. Several executives at the behemoth sports retailer also face federal corruption and bribery charges. The Federal Bureau of Investigation, which led the probe, has hinted at far more widespread corruption -- and said that the NCAA was unaware of scandal.

Then, it declined to punish the University of North Carolina at Chapel Hill for creating faux classes that lasted decades, to the benefit of “mostly athletes,” the NCAA said. The association seemed at times hamstrung and frustrated by its own policies. It pointed out that the university had first admitted to the “paper” classes then reversed its stance during the NCAA investigation, and that officials could not definitively prove that the courses in the African and Afro-American studies department were created solely to keep athletes eligible, because other students enrolled in them.

At the NCAA convention in Indianapolis last week, Emmert did not mention Michigan State in his address. He alluded to the UNC scandal and highlighted particularly the need to reform men’s basketball. His speech called for quick and decisive action at a time when the public is particularly cynical of higher education and the NCAA.

“It doesn’t matter what division you’re in, what sport you’re in. When there’s things like that out there, and we don’t respond appropriately, it makes your job that much harder,” Emmert said during his remarks, referencing the basketball scandal. “We’ve got to respond to those things -- directly and forcefully. Not nibbling around the edges.”

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