Setting a Bad Precedent

I realize that what I am about to write is not going to be a popular opinion, but that’s ok. Popularity is not why I choose write about sports. The NCAA is expected to hand out “unprecedented” penalties on the Penn State’s athletic department and football program in the wake of the child abuse scandal surrounding former Penn State defensive coordinator Jerry Sandusky. Jerry Sandusky perpetrated one of the most heinous cases of evil in or out of sports during his time as a Penn State assistant, and in the years that followed. As a result of the recently released report by former FBI director Louis J. Freeh, we now know that Joe Paterno, former athletic director Tim Curley, and former vice president Gary Schultz aided in concealing Sandusky’s behavior. The drumbeat to cripple Penn State’s football program has been growing louder by the month. As more and more news has come out and the inevitability of Penn State receiving a multiple year bowl bans, as well as scholarship losses has grown.

The fact that the NCAA has little to no ground or jurisdiction for what they are about to do have been lost in all praise that has been heaped upon the NCAA for acting swiftly and decisively to hammer Penn State. The NCAA will not only overstep its bounds by levying sanctions on Penn State’s football program, it will set a dangerous precedent that can and probably will affect schools going forward. Before I launch into the reasons why I feel the NCAA is overstepping its bounds, it is important to understand what the NCAA is, why it exists, and what it has the power to do. The NCAA is an association of schools, conferences, and organizations that govern intercollegiate sports. The NCAA was created under the direction of President Theodore Roosevelt in response to widespread deaths and serious injuries that were occurring within college football at the time. In order to keep college football from being outlawed and eliminated, the NCAA was formed and charged with creating and enforcing standardized rules and practices to ensure the safety of participates. At its most basic level, the NCAA is a rules and regulations association that governs SPORTS RELATED activities. While the role and function of the NCAA has evolved over the years, the mission of the association has remained the same. The primary purpose of the NCAA is governing player well being and ensuring competitive balance. The NCAA’s official mission statement reads:

“Our mission is to be an integral part of higher education and to focus on the development of our student-athletes.”

The NCAA not only organizes and approves athletic events and practices; it also investigates and enforces NCAA rules and regulations. The NCAA houses its own enforcement arm that actively investigates rules violations and provides evidence for punitive action. As stated in the enforcement program’s charter:

The NCAA enforcement program strives to maintain a level playing field for the more than 400,000 student-athletes. Commitment to fair play is a bedrock principle of the NCAA. The NCAA upholds that principle by enforcing membership-created rules that ensure equitable competition and protect the well-being of student-athletes at all member institutions.

The enforcement program is dedicated to creating positive student-athlete experiences by preserving the integrity of the enterprise. The mission of the NCAA enforcement program is to reduce violations of NCAA legislation and impose appropriate penalties if violations occur. The program is committed to the fairness of procedures and to the timely and equitable resolution of infractions cases.

A fundamental principle of the enforcement program is to ensure that institutions abiding by NCAA legislation are not disadvantaged by complying with the rules.

It is important to take note of several key phrases included within the charter. They include “maintain a level playing field,” “commitment to fair play,” “enforcing membership-created rules that ensure equitable competition,” and “protect the well-being of student-athletes.”

The NCAA is not a government agency. It does not have the legal power to compel individuals to cooperate with its investigations. It cannot lock up anyone who refuses to cooperate with its investigations or impedes them. In fact, on its enforcement website, the NCAA goes out of its way to explain that:

The enforcement staff cannot subpoena witnesses or wield the power of discovery. The staff also has no authority to charge witnesses with perjury if dishonesty is suspected. Although the enforcement staff can charge student-athletes, prospects, and current and former institutional employees with unethical conduct for providing false or misleading information or withholding information, that option is not available for individuals who fall outside the NCAA’s jurisdiction.

The NCAA constitution obligates schools to cooperate fully during investigations, but the lack of subpoena power normally associated with law enforcement agencies can present investigative challenges.

Investigating and punishing member schools and/or individuals for criminal behavior is not included in any part of the enforcement charter, nor is it part of the function or practice of the NCAA. The NCAA has no business getting involved in investigating or handing down punishments for criminal behavior that has nothing to do with sports related activities. The U.S has a legal and civil system for that very purpose. The fact that criminal behavior occurred on a college campus and involved members of the football staff does not change the jurisdiction or authority of the NCAA.

Penn State’s football program violated no NCAA by laws, a fact acknowledged by NCAA President Mark Emmert in his letter to Penn State University following the initial allegations and investigation:

While admittedly, the actions alleged to have occurred in this instance are not specifically listed in the bylaw, it is clear that deceitful and dishonor behavior can be found to be unethical conduct.

The NCAA’s unethical conduct standard will be discussed later in this article, but for now, the focus rests on the section highlighted above. Penn State University will have serious and severe penalties placed upon them without violating specified NCAA bylaws. In effect, the NCAA is taking existing rules and retroactively applying them to the case of Penn State. Referring back to the NCAA enforcement charter finds that the program is charged with “enforcing membership-created rules.” While I acknowledge the fact that the NCAA is dealing with an unprecedented case, that doesn’t give it the right to make things up as it goes along and overstep its responsibilities.

Terrible things happened at Penn State, there is no doubt of that and my sympathies go out to the victims. There is a lot of anger and I understand that. There’s a lot of public and PR pressure screaming for Penn State’s football program to be hammered. I understand that too. I fully support locking up the people responsible for the crimes and those who allowed it to happen. I believe that Tim Curley, Gary Schultz, as well as former assistant Mike McQuery should all face criminal charges for enabling a known predator to continue his behavior. If Joe Paterno was still alive I would fully support charging him with aiding and abiding as well. I fully support a class action law suits by the victims that forces Penn State to pay out of the nose. There are multiple avenues for both Penn State University, and the individuals who are responsible for the cover-up and continued abuse.

The NCAA’s Sportsmanship and Ethical Conduct standards have often been cited as the primary reason why the NCAA has the authority to place sanctions on Penn State. Let’s take a look at the frequently mentioned 10.1 Bylaw:

10.01.1 Honesty and Sportsmanship.

"Individuals employed by or associated with a member institution to administer, conduct or coach intercollegiate athletics and all participating student-athletes shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, shall represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports."

10:1 Unethical Conduct

Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member, which includes any individual who performs work for the institution or the athletics department even if he or she does not receive compensation for such work, may include, but is not limited to, the following:

(a) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution;

(b) Knowing involvement in arranging for fraudulent academic credit or false transcripts for a prospective or an enrolled student athlete;

(c) Knowing involvement in offering or providing a prospective or an enrolled student-athlete an improper inducement or extra benefit or improper financial aid;

(d) Knowingly furnishing the NCAA or the individual’s institution false or misleading information concerning the individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation;

(e) Receipt of benefits by an institutional staff member for facilitating or arranging a meeting between a student-athlete and an agent, financial advisor or a representative of an agent or advisor (e.g., "runner”)

(f) Knowing involvement in providing a banned substance or impermissible supplement to student-athletes, or knowingly providing medications to student-athletes contrary to medical licensure, commonly accepted standards of care in sports medicine practice, or state and federal law;

(g) Failure to provide complete and accurate information to the NCAA or institution’s admissions office regarding an individual’s academic record (e.g., schools attended, completion of coursework, grades and test scores); (Adopted: 4/27/06)

(h) Fraudulence or misconduct in connection with entrance or placement examinations; or

(i) Engaging in any athletics competition under an assumed name or with intent to otherwise deceive.

While it is true that the NCAA has ethical standards for its coaches and players, those standards are bound to sports related activities. Note that the ethical standards all apply to specific violations of NCAA standards. Being a drug kingpin is not against NCAA rules. The NCAA would have no grounds for levying bowl bans or scholarship reductions if Joe Pa was running a massive drug cartel. Running a drug cartel is a criminal matter, just like the Sandusky scandal.

Levying sports related sanctions on a school for activities that aren’t sports related is wrong in my view. Bowl bans and scholarship reductions are used in cases where schools attempt to gain a competitive advantage over its opponents, something that actually does fall in the realm of the NCAA enforcement committee. At no point did the football program at Penn State attempt, or achieve a competitive advantage over its competition. If it was murder, or embezzlement, and Joe Pa and others within the University knew and did nothing, the NCAA would probably not even consider levying sanctions.

So why does it matter? Punishing a school for allowing and enabling a child predator is a good thing right? Let me start by saying that the well being of Penn State’s football program is of no concern to me. Michigan will likely see benefit on the recruiting trail if/when Penn State is hammered. The idea of protecting Penn State’s football image is one of the things that compelled officials at Penn State to conceal what was going on in the first place. There are no depths that Penn State’s football or athletic program can sink that would be unwarranted. What occurred on the Penn State campus and in Penn State football facilities is a black eye on the University and athletic department that may never go away. I am in no hurry to see that happen.

So why make a big fuss? Well for one thing, what the NCAA is about to do sets a bad precedent for the future. The NCAA is retroactively levying punishment on Penn State for violations that don’t exist in their rule book. Worse yet, the NCAA is handing out punishment for offenses outside of their realm of responsibility. Consider the fact that the NCAA never issued Penn State with a formal “notice of allegations.” The notice of allegations is an NCAA mandated document of charges that spells out, in detail, the NCAA rules that were violated as well as the specifics of who, what, and where violations occurred. Schools are allowed to respond to notices of allegations and present evidence in their defense of contested charges. The NCAA has skipped that process altogether. There will be no formal charges or deliberations in the case of Penn State, just a sentencing phase. That is not a good thing for college sports long-term.

This past spring, 3-4 football players at TCU were caught up in a significant drug operation. For the sake of argument, let’s say a coach was involved as well. The precedent set in the case of Penn State gives the NCAA the grounds hammer TCU and any other school in the country for non-sports related cases of misconduct. Thanks to the outcome of the Penn State case, that misconduct does not have to be related to NCAA by-laws in anyway.

At one point in time Michigan employed several known alcoholics on its football coaching staff. Everyone inside the football and athletic program knew and looked the other way until it blew up in Michigan’s face. Was there a cover-up, did Michigan lose institutional control? We`ll never know the answer to that question since the NCAA and the Big 10 correctly stayed out of the case completely. Up until this point, schools have been charged with keeping their athletes, coaches, and administration in line. That may not be the case going forward. The internal memo that leaked out last week revealed that the prospect of handing of Big 10 Commissioner Jim Delany unprecedented power to fire coaches, as well as hand out fines and suspensions, ala NFL commissioner Roger Goodell, was debated by conference leaders (they’ve since denied that it was a realistic possibility).

It is a known fact that those in power seldom refrain from using their power, or giving their power up. Once Pandora’s Box is open, it seldom closes with the contents back inside. Once the NCAA oversteps and creates a precedent there is no going back. The NCAA may be dealing with an unprecedented case in the situation at Penn State, but the legacy of the NCAA’s response and action will affect future cases and punishments. A string of off the field cases and arrests could lead to the NCAA knocking on the door of an institution with sanctions in hand. As a result of what happens in this case, the NCAA will likely involved itself in future non-sports related cases. In my view that is not a situation that is good for the future of college sports.

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