Could punishment from NCAA be next for Penn State?
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STATE COLLEGE -- Eight months ago, the NCAA sent a letter to Penn State expressing its intention to investigate the athletic department because of the Jerry Sandusky child sexual abuse case.
With the trial over and Sandusky convicted, there has been speculation about possible NCAA punishments, even death penalty for the football program. The NCAA, its decision to investigate revealed by the university's public release of the letter, faces a tough decision.
"They're kind of in a box," said Joe Nocera, a New York Times columnist and blogger who has written extensively -- and critically -- about the NCAA. "Something bad has happened, but they have a lot of difficulty coming at it. It's not something they are set up to do."
NCAA bylaws provide no basis for punishing institutions for crime. Before Penn State, the NCAA had no history of even investigating institutions based on criminal offenses perpetrated by administrators, athletes or coaches.
But NCAA president Mark Emmert detailed the accusations clearly in the letter. The NCAA is examining Penn State for a lack of institutional control and examining current and former administrators and coaches for unethical conduct. These two infractions are often pressed by the NCAA but have never been cited in cases involving criminal acts. Former Penn State athletic director Tim Curley and former vice president Gary Schultz face charges of perjury and failure to report suspected child abuse.
Less than a year ago, the NCAA considered it unethical behavior and punished Ohio State when head football coach Jim Tressel failed to disclose knowledge of accusations that two players had sold personal memorabilia to the owner of a tattoo parlor. By any measure, the alleged failure to report sexual abuse by a former assistant coach at athletic facilities is a more serious offense.
A dilemma arises for the NCAA. Sandusky committed multiple illegal acts in a facility that was under control of the athletic department. Should the NCAA act, setting a new precedent? Can it?
In June 2003, then-Baylor basketball player Patrick Dennehy disappeared, last seen with teammate Carlton Dotson. His car would later turn up in Virginia without license plates. On July 21, Dotson was charged with murdering Dennehy.
That same day, the NCAA began investigating the situation at Baylor. The organization didn't start the probe because of the murder; according to the NCAA's report, it started because Dennehy's girlfriend told the NCAA enforcement staff the basketball team had committed violations of NCAA rules.
Crimes, even serious felonies, have not historically led to NCAA investigations. In 2006, Montana State had numerous legal issues with current and former athletes, including two former athletes who were charged with murdering a drug dealer. The NCAA did not investigate the athletics department for any of those offenses.
"It has to be very specifically laid out in NCAA legislation what the rules are, what the violations are and what the consequences are of those violations," said Don Jackson, an agent and attorney for The Sports Group of Montgomery, Ala. He has defended multiple NCAA athletes.
A charge of unethical conduct historically has been given to administrators and coaches who have lied about or not reported violations of NCAA rules. Charges of lack of institutional control has been given to institutions that have cultivated a culture of negligence or apathy toward NCAA rules.
The common thread is an NCAA violation. Without one, it's historically not possible to consider these infractions. Even the grounds for the investigation run counter to everything the NCAA has previously done. Its decision to investigate Penn State may have been decided by public pressure as much as duty.
"Along comes an administrative agency that considers something like this," said Gene Marsh, a lawyer for Lightfoot, Franklin & White in Birmingham, Ala., and a former member and chair of the NCAA Infractions Committee. "They are the caboose on the train. ... Just because they said it in a letter -- which may be as much a PR move trying to make sure the NCAA knows it has an eye on things -- it doesn't mean they can bring it home."
In that letter, Emmert acknowledged the NCAA's ability to selectively interpret the articles regarding lack of institutional control and the bylaws regarding unethical conduct. Both "lack of institutional control" and "unethical conduct" are subjective concepts contingent on violations of other actions disallowed by the NCAA.
For unethical conduct, bylaw 10.1 in the NCAA handbook, Emmert wrote, "While admittedly, the actions alleged to have occurred in this instance are not specifically listed in the bylaw, it is clear that deceitful and dishonest behavior can be found to be unethical conduct."
Such an open interpretation could encompass the behavior of Sandusky and the Penn State administrators, said Alan Milstein, a lawyer with Sherman-Silverstein in Philadelphia. NCAA investigations don't follow due process.
"They are both prosecutor and judge and jury," Milstein said. "They make a determination and they mete out any punishment they want from fine to suspension to death penalty. They could do whatever they wanted to do."
Milstein believes the NCAA can and should punish Penn State University because he considers Sandusky's actions and the alleged cover-up directly related to the prestige and profitability of Penn State football. Jackson refutes that possibility because -- no matter the involvement of athletic department employees -- an NCAA punishment is possible only if an NCAA violation occurs.
He notes that the NCAA could veer away from the grave criminal issues of the Sandusky situation and find instances where Penn State committed unrelated violations. Under its current rules, the NCAA has a better case for investigating and punishing Penn State regarding Sandusky's transportation of children to football games and athletic facilities than the actual crimes, Jackson suggested.
The children could be considered "prospective student-athletes." A prospective student-athlete is defined by the NCAA as any student who has started ninth-grade classes, or any student who has not started classes for the ninth grade who has received any financial assistance or other benefits that the institution does not provide to all prospective students.
Bylaw 13.5.1 states that an institution cannot provide transportation to a prospective student-athlete to a practice or competition site. But Bylaw 126.96.36.199 likely would grant an exception to this transportation if it is deemed Sandusky had established a friendly relationship with the children through The Second Mile.
But the possibility illustrates the way the NCAA is equipped to work. Any punishment of unethical conduct or lack of institutional control would have to stem from neglecting or refusing to report similar violations.
Jackson brought up the 2005 Baylor case as a parallel. Murder was not mentioned once in the NCAA report. The athletic department was deemed to lack control because the employees did not report failed drug tests, sketchy tuition payments and other clear-cut NCAA violations, not because a player its employees had recruited and were responsible with monitoring murdered a teammate.
"Tell me how NCAA legislation has changed since then," Jackson said. "Do I think it should change? Yes."
Jackson doesn't want the NCAA to become the police. He doesn't want the organization to investigate crime. He wants the NCAA to act after the legal process has taken its course. Jackson envisions legislation that would hold individuals and institutions accountable for being charged or convicted with serious crimes that would be listed in the NCAA Constitution.
He refers to Isaiah Crowell as an example. Crowell, a star football player, was charged with a felony count of possessing a firearm in a school zone and kicked off University of Georgia's team in June. He is transferring to Alabama State and will be eligible to play in the fall.
"There is no way that man should be allowed to play football this year," Jackson said. "He has a pending felony."
Michael McCann, director of the Vermont Law School Sports Law Institute, would like to see the NCAA punish Penn State, as well as govern similar instances better in the future.
"To me, that is much worse than whether an agent is on campus or whether [Ohio State football player] Terrelle Pryor gets tattoos," he said. "Those things seem trivial. ... When people think of football programs they think of games, practices, team meetings and people working out. This would have a different meaning."
Generally, the NCAA does not discuss ongoing investigations. NCAA spokeswoman Stacey Osburn did not respond to repeated questions seeking clarification about NCAA rules and bylaws, beyond emailing earlier news releases about Penn State.
Any such reform would be drastic. Marsh said he would oppose those kinds of changes, saying punishment for crimes should be left to the justice system.
Allen Sack, interim dean of the University of New Haven's College of Business and a sports management professor, has written numerous articles, as well as two books related to the NCAA. He agrees with Marsh but has a proactive measure for the NCAA to consider.
Sack wants the NCAA to add a type of whistleblower article to its regulations. The bylaw would give any member of the university or athletics department protection from officials for making an accusation.
It would make the process easier for someone to come forward and expose problems. Sack envisions it as a way to attack a lack of transparency, an issue at the heart of the Penn State scandal as well as a problem throughout college athletics.
"It's a veil of secrecy," Sack said. "That veil has to be broken down. What can the NCAA do? They can't prosecute these things, but they should be tearing down that veil."
First Published July 9, 2012 12:00 am