• August 2, 2014

The NCAA's Brave New World

The NCAA's Brave New World 1

Gene J. Puskar, AP Images

The NCAA's decision to impose major sanctions against Penn State's football team means the association will face pressure in the future to explain its failure to use the Penn State model to deal with other cases.

Here's what I know.

1. Jerry Sandusky's conviction on 45 counts of child sex abuse makes him a repeat child sexual predator.

2. According to the conclusions in the Freeh report:

  • Four powerful Penn State administrators—the president, a senior vice president, the director of athletics, and the head football coach—knew of two episodes related to Sandusky and "repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities, the university's Board of Trustees, the Penn State community, and the public at large."
  • The Penn State Board of Trustees failed to exercise its oversight duties.
  • The four administrators "exhibited a striking lack of empathy for Sandusky's victims," neither inquiring as to their safety and well-being nor attempting to identify the child seen with him in the showers in 2001.
  • The four administrators, football coaches, and staff ignored "the red flags of Sandusky's behaviors."
  • That, because of all this, Sandusky remained free to prey on children until 2011.

Here's what else I know: None of this, standing alone, is reason for NCAA penalties.

But what made this a case for the NCAA's president, Mark Emmert, and the NCAA Division I Board of Directors is that the Freeh report traced the reasons for what occurred to the "culture of reverence for the football program that is ingrained at all levels of the campus community," a culture that subverted institutional processes and upended the core NCAA requirement that there must be institutional control of athletics programs.

NCAA action here was unprecedented in that it happened outside the NCAA's enforcement/infractions processes. Until now, it was unprecedented in that it treated a lack of institutional control as a free-floating violation untethered to particular substantive NCAA violations. Until now, it was unprecedented in that it relied on factual conclusions provided by a university and not from an independent investigation by NCAA staff. With Monday's NCAA action, however, what formerly was unprecendented now has precedent to support it.

There are reasons why investigative and fact-finding processes wend their way slowly. There are reasons why procedural protections are provided to subjects of investigation. The Freeh report is an exceptionally well documented, careful assessment of available information. But, as the report was careful to say, its conclusions were based on "the available witness statements and evidence." There is risk in moving forward before full information is available. I know, for example, that people (mistakenly, but in good faith) seek compelling evidence before feeling they should report, draw adverse conclusions, or take action against co-workers and acquaintances. I know that non-lawyers (mistakenly, but in good faith) often interpret a conclusion not to prosecute as a conclusion that there is no evidence.

Living and working in a community means building and maintaining relationships of trust. Properly and completely doing an investigation means acting always with skepticism when any information surfaces. The two approaches, ultimately, are mutually exclusive. One cannot always be in an investigative mode, but one fails to investigate at one's risk. One rule of thumb: The more significant the conduct reported—or even suggested—the more one needs to lean toward the investigative model. When one does not, the result can be calamitous. Witness Penn State.

The NCAA is an association of colleges and universities—a national, powerful one. It may be the only game in town for students who want to play varsity athletics at a high level. But it effectively is a club. That means its members decide what the club rules are and who gets to join, and its members can change the rules. The only constraints on the NCAA are that it act in good faith and avoid arbitrary or discriminatory decisions. The Division I board no doubt acted in good faith, and its penalties were neither arbitrary nor discriminatory, based on the conclusions of the Freeh report.

Since Adam and Eve ate that apple, perfect results are beyond our grasp. Science fiction tells us that there are multiple futures out there. We won't know which one we get until we arrive. The best that may be done when making decisions, therefore, is to reach for the optimum—to identify the purposes and need of a decision, and then to do our best to project all those futures, and the potential consequences of each, good and bad. And then to act. What I hope and expect is that President Emmert and the Division I Board did just that.

An eminent baseball philosopher—"The Old Perfessor," Casey Stengel—once advised, "Never make predictions, especially about the future." Yet, here I go.

The circumstances of the Penn State case certainly may be distinguishable from the facts of potential future cases. The university report was well documented and carefully done. Penn State adopted its findings and has agreed to the NCAA sanctions imposed. In all those multiple futures out there, it is difficult to imagine circumstances like the events at Penn State again arising. On the other hand. Whenever something happens on campus related in some way to athletics, there is a cacophony of voices urging NCAA action. Until Monday, the NCAA could respond that its jurisdiction was limited to substantive bylaw violations set forth in the NCAA manual. That no longer is an available response. The bright line of substantive bylaw jurisdiction is history.

I believe fully that President Emmert and the NCAA Division I board see the Penn State case as unique and expect the NCAA to resume its traditional role in deciding what falls within NCAA jurisdiction and how things will be handled. I nonetheless expect increasing pressure on the NCAA in the future to explain its failure to use the Penn State model to deal with other campus issues. I will not be surprised if, down the road, an institution presents its own investigative report and asks to "bump" the enforcement/infractions process and proceed right to sanctions. I expect the NCAA to decline, as well it should.

Josephine R. Potuto is the Richard H. Larson Professor of Constitutional Law at the University of Nebraska at Lincoln. She is a former chair of the NCAA Division I Committee on Infractions. She writes and lectures extensively on sports issues and, in particular, on the NCAA and its processes.

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