What are your chances of getting a scholarship and playing your sport at the college level?
When does the NCAA allow a college coach to contact you? When can an athlete make contact with the college coach?
What are your chances of getting a scholarship and playing your sport at the college level?
When does the NCAA allow a college coach to contact you? When can an athlete make contact with the college coach?
The NCAA’s new nine-hour rule showed that the NCAA members are getting serious about football graduation rates. Football became the second sport, after baseball, to get sport–specific academic rules. But as with any rule change in the NCAA, there is always the question of how far the Association is willing to go with a new rule.
Knowing which football players, if any, would be affected by the rule was the first challenge. It appears that Fresno State wide receiver Rashad Evans is the first to be publicly confirmed. Evans is sitting out four games after both the NCAA staff and the Progress-Toward-Degree Waiver Committee denied a progress-toward-degree (PTD) waiver submitted by Fresno State.
Comments from Fresno State officials are not making the case easier to understand. Take this one from Bulldogs head coach Tim DeRuyter:
Rashad did everything that was asked of him to regain his eligibility by NCAA bylaws. … It is disappointing that he is going to miss four of his final games and it is inconceivable that through the NCAA process we could not remedy this situation.
On its face, there is a problem with that statement. If Evans did everything required of him by the bylaws, a PTD waiver would not be necessary. The fact that a waiver had to be filed at all means some bylaw was not met.
The general sentiment was echoed by Fresno State athletic director Thomas Boeh:
Rashad worked hard and completed all summer work asked of him. It is terribly disappointing that during the appeal process discussion appears to have strayed from the spirit and intent and of the original legislation, which was to help ensure that football student-athletes continue to progress towards an undergraduate degree.
Due to student privacy laws, guessing about why an athlete is academically ineligible always involves some speculation and reading between the lines. The best guess is that Evans missed the nine-hour rule, and did not get the 27 hours required to erase the four game suspension. Fresno State filed a waiver, rather confidently it seems, based on the fact that Evans will graduate in four and a half years. That is ahead of schedule according to the NCAA’s five–year graduation track.
We know North Carolina State cornerback C.J. Wilson was not a victim of the nine–hour rule because NC State head coach Tom O’Brien explained the situation. C.J. Wilson failed to pass the six-hour rule in the Spring 2012 semester. NC State then filed a PTD waiver which was approved, but with a four—game suspension.
The Evans and Wilson cases are different but both highlight the fact that the NCAA is serious about the nine-hour rule. It is not designed to be a sort of soft requirement that can be erased by showing general progress. There is a specific requirement, a specific penalty, and a specific method for eliminating or easing that penalty. As Evans and Fresno State learned, asking for another way out is highly unlikely to be successful. The only waivers of the nine-hour rule that will be approved are when a football player suffers a hardship that causes him to miss the nine hours in the fall or prevents him from getting 27 hours to avoid the suspension.
Wilson’s case shows the reach of the nine-hour rule will go beyond the bylaw itself. The bylaw introduces the idea that even if a student-athlete is otherwise eligible, failing to meet an academic requirement will cause an athlete to miss some portion of the football season. PTD waivers, where an athlete should be academically ineligible but has his eligibility restored by the NCAA, are likely to follow this same pattern. I would guess that most PTD waivers for football players will include a two–four game suspension in the future.
First, if a PTD waiver now means not giving a football player back his full eligibility, will that mean more waivers granted? The fact that the student-athlete still suffers a consequence for failing to meet academic requirements could lead the NCAA to be more forgiving. And second, will this extend to other sports?
Both of those will depend on the results of the nine-hour rule. If it proves to increase APR scores and graduation rates, expect the concept to spread to other sports. On the heels of improvement in baseball APRs, it will likely be a victory for sport-specific academic requirements, with men’s and women’s basketball next in line. But if it does not, we can expect another round of questions about how to improve football academics.
Today the NCAA announced that North Carolina had been cleared of all wrongdoing in the scandal involving no-show classes for football and men’s basketball players. Predictably, that caused an uproar. Except none of those things happened today. The NCAA announced nothing; North Carolina issued a statement. And the statement only refers to
the NCAA’s opinion on one of four separate internal investigations.
So the case continues and all we learned today is North Carolina is 25% closer to being in the clear and the NCAA has been involved with the case for over a year now. But we can already learn two important lessons from UNC’s troubles.
Repeat after me: If a school has good news after being accused of a major NCAA violation, you will hear about it. Any nugget that puts the case in a better light, whether it be a full acquittal or even the news, like in UNC’s case that the NCAA has not found anything to date, will get out.
Silence, while often pointed to as evidence that the NCAA is ignoring potential violations, is what should scare fans. The NCAA does not talk about investigations and instructs the school not to. Information about a case comes out through leaks or announcements from the school and in the results of open records requests from reporters. That puts a school (especially a private school) in almost sole control of the public perception of the case.
Done well, that means a school keeps quiet when things are not going well and shouts loud and clear to anyone who will listen when it catches a break. Done poorly, a lot of people at the school loudly proclaim their innocence only to see the NCAA come down hard later.
How a school works the public relations side of a case is not just a reflection of the status of the investigation, but can have an impact on the end result. Much like a criminal defendant showing remorse, it is becoming increasingly clear that a school needs to show they “get it” when being investigated. And one sign of taking an investigation seriously is not claiming your innocence until you have something to base that claim on. But given how damaging silence is to the perception of a school and its recruiting, expect that claim to come as soon as the school has even the slightest reason to make it.
Despite being a cornerstone of the NCAA rules, the term “academic fraud” is mentioned only once in the entire Division I Manual, as a basis for postseason bans. Such an important and loaded term is not defined by the NCAA in the Manual. There is no academic fraud bylaw that spells out the behaviors that constitute academic fraud.
As a result, both the Committee on Infractions and commentators on the NCAA take the same approach to academic fraud as Supreme Court Justice Potter Stewart took to pornography: “I know it when I see it.” Things which fall under academic dishonesty are clearly also academic fraud. That includes cheating, plagiarizing, buying papers, having someone else take tests for athletes, etc.
But the big question for the NCAA is whether academic fraud goes beyond academic dishonesty. Popular opinion is that based on the eye test what happened at UNC (no-show classes involving little work that included a lot of athletes) is academic fraud. But what about a no-show class that included a lot of athletes which had a lot of work? What about a class that included a lot of athletes where just showing up was enough to get a good grade, but you had to show up?
As a regulatory body, it is the NCAA’s job to draw a (relatively arbitrary) line between what is academic fraud and what is just an easy class at a university; but picking that line has always been difficult. The schools which make up the NCAA and ultimately make the rules have been willing to cede institutional autonomy in a number of areas, but not this core area of what their students are taught.
The NCAA could get out of the line drawing problem by dropping progress-toward-degree requirements and eliminating the APR. But that decision is not without consequence either. Given the choice between more athletes making progress and earning some sort of degree rather than fewer athletes earning “better” degrees, the NCAA has chosen the former.
Hopefully, the NCAA will cut the knot sooner rather than later and come up with a solution that in retrospect looks obvious. But right now, the problems of how to accommodate athletes who might be poorly prepared for college without cutting off too many opportunities and ensure educating them is taken seriously is the hardest question facing the NCAA. And any solution has to tie together initial eligibility, continuing eligibility, clustering, the APR, and junior college rules all in a tidy way.
Do you think the NCAA needs to clearly define “academic fraud?” Will UNC still be penalized despite the positive news today? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!
Of all the ongoing NCAA investigations, none is more vexing than the Oregon case. Miami is a basic extra benefits case, as far reaching as it appears to be. UNC’s smoldering academic scandal is a bit tougher for the NCAA to deal with given the greater deference to institutional autonomy in that area, but the case is only one or two key findings away from getting very simple.
If you forgot, Oregon’s case involves the purchase of a $25,000 recruiting service subscription by the football team from Willie Lyles, who was connected to a number of prospects, a couple of which eventually enrolled at Oregon. Lyles then allegedly only sent profiles of recruits long after the fact at the request of Oregon’s coaches to justify the payments.
Oregon’s case is the first major investigation involving a relatively new version of NCAA bylaw 13.14.3. The bylaw defines which recruiting services schools may subscribe to. To be permissible, a recruiting or scouting service must:
The changes to Bylaw 13.4.3 were originally started for basketball. The scam was that someone connected to a prospect, like a coach or handler, would offer a “recruiting service” which was normally little more than rankings, heights and weights, or even edited or copied information from legitimate recruiting services. To get access to the prospect(s), coaches would have to buy a copy of the recruiting service, which may run into the thousands of dollars. Better access or more favorable influence could sometimes be bought by purchasing (or having boosters purchase) multiple copies of the services.
The rule was expanded to all sports for a while but now applies just to football and basketball. It is an odd rule because it does not prohibit exactly what it is trying to combat: institutions buying subscriptions to recruiting services to gain access to prospects. Instead, the rule attempts to separate legitimate recruiting services from faux ones designed as a front for payoffs from coaches. It is a highly detailed and technical rule aimed at a fuzzier problem.
What it means for Oregon is that even if the NCAA never proves that Oregon’s coaching staff intended the purchase of Lyles’ recruiting service to get them access to prospects or had much contact with Lyles, the school could still face severe penalties. All the enforcement staff might need to prove is that Oregon paid for a recruiting service that did not meet the requirements. The fact that prospects connected to the owner of the recruiting service enrolled at Oregon would be an aggravating factor.
Oregon’s alleged violation can easily be cast as something most people want to stop: paying off a third party in order to secure a recruit’s enrollment. There’s an increasingly vicious debate about where that money should go (nowhere vs. to the athlete himself) but almost no one wants much or any of it to go to some adult who latches on.
Severe penalties based on no evidence of Oregon’s intention in the case would be a form of strict liability. Except the arguments against strict liability do not apply in this case because the NCAA changed the rules once again. Now the NCAA approves all football and basketball recruiting services. It would not settle all potential issues with recruiting services, but it certainly gives schools a much clearer charge than finding out and monitoring whether recruiting services are compliant.
On the flip side, letting Oregon off with a slap on the wrist would potentially gut a needed rule (albeit one that could be improved upon) in an area where regulation is needed. It would provide arguments to both schools who check the NCAA database and never anything else as well as schools who “accidentally” subscribe to services not approved by the NCAA. The message sent by severe sanctions on Oregon plus the new rule changes would be “We are serious about this type of violation, but we are trying to help you out.” It’s a good mix of vengeance (on Oregon) and mercy (on everyone else).
More importantly, a harsh punishment for Oregon continues what should be seen as the bigger lasting impact of the Penn State sanctions. For a long time, many have argued and the NCAA has often entertained the idea that no one should be the first or last one to be punished for anything. Hence in the Penn State the solution that many argued of letting Penn State off the hook but changing the rules for the next time. Too much of this creates a continual case of always claiming that this time will be the last free ride, that next time we have to get serious. Until the next time becomes this time, except with just enough difference to justify waiting until the next next time.
With Penn State the NCAA (both the members and the national office) said “no more.” There would be an effort to impose sanctions on Penn State, either by consent or unilaterally. If that meant using extraordinary measures, then extraordinary measures would be used. The process of figuring out regular processes for dealing with such a scandal was still going to happen, but not at the expense of letting Penn State escape without punishment.
One of the constant themes in NCAA enforcement has been that the NCAA is always playing catch-up. In reality, the NCAA has closed a big portion of that gap in recent years. Witness this summer’s action against four AAU teams before violations jeopardized the eligibility of prospects as an example.
All of this is not to say that Oregon’s case will be decided by how big of a message the Committee on Infractions would like to send. Rather, it addresses the fact that regular people who work on campuses or in conference offices make these judgments. And in this case, there will be little fear of a public backlash or setting an unworkable standard in the backs of their minds.
That means the case largely comes back to whether there is evidence about some other motive for the payments beyond buying recruiting profiles and whether that even matters if the school is found to have paid a large sum of money for an impermissible service. And while the NCAA cannot simply rely on media reports, what has been reported does not look good for Oregon.
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As the offseason is winding down, college football is starting to move out of that period every year when it seems the only news is athletes breaking the law, getting suspended, or getting kicked off their teams. Media days are finishing up, athletes are returning to campus, and preseason camps start to kick off around the country.
But college football is not out of the bad-news woods yet. An NCAA rule passed in 2011 that was in effect last year will start to be felt soon, by causing some football players to miss one-third of the season. It remains to be seen how widespread the effect is but it will undoubtedly be felt.
The rule the NCAA added last year is Bylaw 188.8.131.52.6:
In football, a student-athlete who is a member of the institution’s football team and who does not successfully complete at least nine semester hours or eight quarter hours of academic credit during the fall term and earn the Academic Progress Rate eligibility point for the fall term shall not be eligible to compete in the first four contests against outside competition in the following playing season.
In short, it says that if a football scholarship athlete does not pass nine credits (eight at a quarter school) in the fall or does not meet any other eligibility criteria after the fall will be suspended for the first four games of the following year. The reason this was put into place was because one of the major academic issues the APR discovered in football was that many football players were falling ineligible after the fall. Instead of getting ahead during the spring and summer, they were playing catch-up. Throw in the number of football players who do not return to school for the spring after their eligibility is up and it explained a significant chunk of football’s low graduation rates.
The reason this did not come up after the fall was that there is an exception for football players to regain eligibility in Bylaw 184.108.40.206.6.2:
One time during a student-athlete’s five-year period of eligibility, a student-athlete who does not successfully complete at least nine semester hours or eight quarter hours of academic credit during the fall term or earn the Academic Progress Rate eligibility point for the fall term may regain eligibility to compete in the first four contests against outside competition in the following playing season, provided he or she successfully completes at least 27 semester hours or 40 quarter hours of academic credit before the beginning of the next fall term.
Normally athletes have to pass six credits each semester and average 24 credits every year. So the 27 hour requirement to regain eligibility makes sense: if you didn’t get ahead by three hours in the fall as required, you have to get ahead by three hours over the course of the year. If a football player falls into this situation again, he can regain eligibility the same way, but only the third and fourth game, not all four after the first time.
Because this was the first year of the new bylaw, every athlete has a chance to regain full eligibility. That’s one reason there was no word about suspensions after the fall, because no athlete’s suspension was set in stone. It is only now, after summer school, that players are out of opportunities to lift their suspensions if they did not pass nine hours last fall.
The question now is how many football players will this affect. While there might be some teams that have significant losses as a result (say more than a couple players on the two-deep), most teams should not be significantly hampered as a result. Assuming players who failed to meet the nine hour standard got at least six (required to play in a bowl game), earning 27 hours takes some effort but it is doable. If an athlete had less than six hours after the fall, other eligibility rules were probably going to trip him up.
Regardless of whether you agree with the rule or not, one of the more disappointing aspects is that we will probably never know how many athletes were affected. If an athlete is ineligible for the full year, it is hard to explain that away, so the athlete is publicly listed as ineligible. But a four-game suspension could be for anything, so many of these athletes will be cited for mysterious “violations of team rules”. Not to mention that some athletes will simply be kicked off the team either now or back in the spring for failing to remain eligible for the full season.
Ideally though, there are no suspensions. The point of the new rule was not to suspend football players. It was to encourage them to take academics more seriously in the fall by creating a eligibility consequence the following year. So in a perfect world, we would hear absolutely nothing about this rule over the next few weeks.
What do you think about the new 9-hour rule? Will it help motivate athletes to stay on top of their academics? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!
Because of the Penn State scandal, we seem to have forgotten about some of the other cases working their way through the normal NCAA channels. The University of Miami is still being investigated. North Carolina might be back in front of the Committee on Infractions as a possible academic fraud scandal gets deeper and deeper by the week. Oregon’s recruiting service violation has not been heard from in quite a while, but also has not gone away.
Then there was Central Florida. What UCF was accused of was, on its face, one of the worst packages of NCAA violations in recent memory. Not only were both of its revenue sports using a runner (among others) to help recruit athletes and that runner was providing benefits to student-athletes, but all of this was with the knowledge, encouragement, and even active participation of the athletic director.
For all that, UCF got off relatively light. Twin postseason bans, scholarship losses and major recruiting restrictions are not a slap on the wrist. But considering the conduct, it could and should have been much worse. The NCAA would have been justified in laying to waste both of UCF’s most prominent sports for the rest of the decade. Instead, UCF had significant but manageable sanctions for the next few years. We can also glean a little more from the case.
After the USC case, everyone expected the worst for UNC, UCF, and Miami. For two of the three schools, that has not materialized. Despite scandals that were all but inarguably worse, both UCF and UNC escaped with lighter penalties. Add in Ohio State and a pattern starts to emerge: schools are getting a headline-grabbing postseason ban, notable but not crippling scholarship penalties, and the individuals involved are getting lengthy show-cause orders. At this point, despite the sheer length and money involved with the Miami scandal, I would expect something similar.
I suspect that the Committee on Infractions is, like all of us, waiting for the new enforcement structure. Essentially we are about a year from pressing the reset button on major infractions cases, so these cases, as bad as they are, will not be have much meaning after August 1, 2013. Hence the motive to dispose of them without the pressure of pointing the NCAA in a direction it might have to follow for the next decade. The result: a relatively standard package of penalties that looks imposing on paper but which smart programs will be able to recover from fairly rapidly.
Speaking of USC…
There are certainly plenty of conspiracy theories about why USC received one of the stiffest set of sanctions ever handed down in Division I. Chief among them is after years of not being able to get enough evidence to bring the case against the Trojans, the enforcement staff and the Committee on Infractions had to send a message that they were not going to let USC get away with it. But even if we assume this is true, there still needs to be a more appropriate explanation.
The best reasoning had been that ultimately USC was a recruiting case, not an amateurism case. By creating an environment that allowed Reggie Bush and OJ Mayo to receive thousands of dollars of extra benefits, USC got a huge recruiting boost. The message was “come here, you don’t need to worry about those pesky NCAA rules, we don’t mind.”
If that was the core of the USC case, UCF should have gotten the death penalty. Not only was that the culture created at UCF, but the athletic director was involved as an integral part of creating that culture. Southern California might have had a laissez-faire attitude about who was in the locker room or around recruits, but the evidence that the school was actively promoting the violations was tenuous. No such problem at UCF.
The only plausible explanation now is that the USC case did not just involve a high profile athlete at a high profile program. Rather, it involved the highest profile athlete at the highest profile program. But that’s not much to explain these differences. More and more, USC looks like an aberration, a one-time case not to be repeated.
The show-cause orders issued to former athletic director Keith Tribble and to head basketball coach Donnie Jones look impressive because they are three years long. Most people who watch NCAA enforcement see that as a three-year long ban on getting another job, if not a career-ender.
But show-cause orders should be judged just as much by the restrictions in them as their length. We cannot point to a lack of morals or poor culture in college athletics and then expect a scarlet letter to work. A show-cause order should be measured on how well it prevents someone from doing their job, not how bad it might look to hire them.
Tribble is only prevented from having contact with recruits during the period of his show-cause order. Jones is only prohibited from recruiting off-campus during the July 2013 recruiting periods. Having prospects meet with the athletic director is a nice touch on visits, but not a core part of his job. And by this time next year, there are no restrictions on Jones’ at all.
That means the effectiveness of those show-cause orders is a bet that no one will hire Tribble or Jones not because they will be hampered in doing their jobs, but because it would be bad PR. Culture cannot be something that needs to be changed and the weight behind a penalty at the same time. Show-cause orders need to be about the restrictions first, and the length second.
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By now, most commentators have started to move on to discussing just how bad the NCAA’s sanctions will leave the Penn State football program over the next few years. The worst case scenario, remote though possible, is that attrition over the next year or so leaves Penn State with so few football scholarship players that it decides to not field a team while it recovers. The current feeding frenzy, enabled by the NCAA’s relaxing of recruiting rules, plays a large part there.
The best case scenario is more widely debated. Most would agree that Penn State will not be contending for Big Ten titles, elite bowl games, or National Championships for a while even after their postseason ban ends. Some see them floundering in the Big Ten, maybe winning a game here and there as the best case. Other see some lower level bowl games, .500 seasons, and a big win here or there as a possibility.
Many factors will determine the outcome. Head coach Bill O’Brien will need to recruit for the next few years without a postseason to sell. Just as important is how Penn State manages their limited scholarship numbers and uses the exceptions outlined here to make the most of 15 initial scholarships and 65 overall per year. Here’s a closer look at how Penn State could use each of those.
Walk-ons are a part of all college programs. NCAA rules even tell you how many football walk-ons you should have: at least 20 at the start of fall camp to combine with your 85 scholarship players to reach the 105 student-athlete squad limit for preseason practice. That’s even in a sport with a huge scholarship limit, compared to some men’s teams splitting 4.5 scholarships amongst 20 or more athletes.
Not all walk-ons are created equal though. Most people are familiar with the recruited or preferred walk-on, an athlete not given a scholarship but guaranteed a roster spot and does not need to try out. But some walk-ons are not really walk-ons at all. Many receive extensive financial aid to attend school from the federal government, the state, and the school itself.
Bylaw 220.127.116.11 In football or basketball, a student-athlete who was recruited (see Bylaw 15.02.8) by the awarding institution and who receives institutional financial aid (as set forth in Bylaw 15.02.4.1) granted without regard in any degree to athletics ability does not have to be counted until the student-athlete engages in varsity intercollegiate competition (as opposed to freshman, B-team, subvarsity, intramural or club competition) in those sports.
That’s difficult to parse, because the corollary to parts of the bylaw are more important here. If a walk-on is recruited and receives even non-athletics aid, he counts just like a scholarship athlete as soon as he appears in a football game. The flip side is if the athlete is not recruited, that provision does not apply.
Recruited means something different in NCAA financial aid rules than what most people believe it means.
The status of recruited or un-recruited is also school specific. So a school could call an athlete an unlimited number of times, have them on campus for unlimited unofficial visits, and evaluate them as many times as possible without changing the athlete’s status to recruited.
For Penn State, this presents an opportunity if they can capitalize on a certain group of recruits. Specifically, Penn State will be looking for in-state students who qualify for large amounts of need- or merit-based aid. Those students could potentially get much of their tuition paid by financial aid programs; Penn State could still heavily recruit them without triggering the “recruited” definition.
That will be tricky though because it means delaying scholarship offers until Penn State gets an idea of a prospect’s financial need and a solid picture of his academic record. And it means reserving scholarships for athletes from further away or who do not qualify for financial aid rather than focusing on traditional recruiting bases. But if the coaching staff can get kids to buy into coming to Penn State in such difficult times, perhaps they can get them to buy into finding out if they can fund their education another way.
Football is a headcount sport, meaning that all that matters is how many athletes are on scholarship, not how much scholarship they receive. As a result, almost all football scholarships offered are full scholarships. But Penn State needs to start thinking about scholarships differently, or more importantly, get recruits to think about scholarships differently.
Especially given that multi-year scholarships are the norm, all one year scholarships should be thought of as partial scholarships, covering either 25% or 20% of the total cost. While most athletes keep the scholarship they were offered their entire career, that portion is all that is guaranteed.
This could help Penn State overcome a curious math problem the NCAA presents. Penn State is limited to 15 initial counters per year for four years, that is 15 new scholarships awarded every year. Penn State is also limited to 65 total football players on scholarship per year. In the final year of the limits, Penn State will have awarded 15 scholarships to recruits over the last four years, for a total of 60. So where do the other five come from?
They might come from athletes red-shirting, but they could be new scholarships awarded. How? By using an exception the rule that each new scholarship awarded counts as an initial counter:
Bylaw 18.104.22.168.6 A student-athlete who has been in residence at the certifying institution for at least two academic years may receive athletically related financial aid for the first time without such aid counting as an initial award, provided the aid falls within the overall grant limitation.
So one option Penn State could offer recruits is to promise to put them on scholarship for their final two or three years, which prevents them from ever counting against the initial counter limit. That can be sold as a 50% scholarship.
If an athlete would rather not simply take Penn State’s word for it, the school could even sign them to a two- or three-year scholarship agreement two years in the future. The downside to this security is it makes the athlete recruited, so they would be limited in what types of financial aid they could receive those first two years.
There’s no shortage of “shirts” in football: red-shirts, medical red-shirts, and grey-shirts are the most common. But New Mexico State’s football and compliance staffs invented a new one: blue-shirts.
The short answer to “what is a blue-shirt” is any football player awarded a scholarship using this NCAA rule:
Bylaw 22.214.171.124.3 A student-athlete not recruited (per Bylaw 15.02.8) by the institution who receives institutional financial aid (based in any degree on athletics ability) after beginning football practice becomes a counter but need not be counted as an initial counter until the next academic year if the institution has reached its initial limit for the year in question. However, the student-athlete shall be considered in the total counter limit for the academic year in which the aid was first received.
New Mexico State used the provision mostly to award scholarship to junior college transfers, but it could be used for any prospect. The school simply has to keep the athletes un-recruited (as defined above) and then award them scholarships after they arrive and start football practice. They will still count toward the total scholarship limit, but will not count toward the initial counter limit until the following year.
The most important year for Penn State to use this will be in the final year of their sanctions and the following year in order to quickly get back up to full scholarship numbers. After getting 15 recruits in the last year of the sanctions, if Penn State still has room under their 65 scholarship limit, they could use this provision to bring in more recruits, and count them against the following year’s normal limit of 25.
The challenges are twofold though. First, Penn State has to convince better athletes to not be recruited. That means no official visit, no home visit, and they do not get to participate in signing day. Second, Penn State needs to be careful about how they use initial counters on what is essentially credit. Take too many each year and it will seem like the sanctions are extended even longer.
Penn State faces many challenges in fielding a respectable football team over the next few years. But they have ways to ease the burden a little bit. The NCAA’s sanctions were designed to combat the football first culture at Penn State. In a way they might work, since to field the best football team possible, Penn State will need to run its football team more like one of its non-revenue sports.
Do you think Penn State can work around the rules enough to field a respectable team over the next four years? Tell us what you think in the comments section below, or connect with us on Facebook, Twitter, or Google+!
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Much ink and more pixels will be spilled about the punishments Penn State received and how they affect the football team going forward. That’s because those penalties are severe. If they are not the most severe penalties in the history of the Association, they are at least on par with the schools who have received the death penalty over the years.
But more important is how the punishment came down from the NCAA. This was not a major infractions case. It was not the Committee on Infractions who imposed the
penalty. It was the NCAA President, appearing to act more like the commissioner of a league rather than the president of a membership association.
The NCAA was faced with an almost impossible situation: how to punish a school whose egregious conduct was only on the bleeding edge of the NCAA’s rules. Add to that the need to avoid setting a precedent that would push the NCAA into the regular sanctioning of schools for all criminal behavior rather than the sort of serious crimes and top-to-bottom cover-up that occurred at Penn State.
NCAA President Mark Emmert was given the authority to punish Penn State through a joint motion by the Executive Committee and the Division I Board of Directors. This is where the members of the NCAA, including not just Division I but the entire Association, had their say. The representatives of the members give their consent to allowing Emmert to punish Penn State, but established limits on what the president could do.
First, President Emmert was only authorized to negotiate a consent decree with Penn State. He was not authorized to unilaterally impose punishment that Penn State was not willing to accept. This is critical in limiting the impact of such an unprecedented action going forward. If a school agrees to harsher than normal treatment, it does not necessarily expose other schools to the same.
Second, the authorization limited the types of penalties and remedies Emmert could impose on Penn State (again, with Penn State’s agreement). Those included:
That was essentially the list of penalties imposed on Penn State. While on the one hand it shows that Penn State might have had little leverage or choice in the matter, it also shows that President Emmert was not free to dream up punishments or to increase the sanctions beyond what the representatives of the membership had agreed to.
The joint motion explains why Mark Emmert should not have his job titled changed to NCAA Commissioner. But it is the consent decree itself that answers the question of why NCAA schools should not necessarily expect this to become the new business as usual for the NCAA. Specifically, schools facing disciplinary problems with athletes and staff or normal NCAA violations should not expect the president of the NCAA to regularly be involved in their cases.
First, the consent decree goes out of its way to establish the unique nature of the case. While the NCAA’s basis for getting involved with the case was based on principles of institutional control and a potential cover-up, the NCAA said the case went beyond institutional control and monitoring, and noted how the actions of Penn State did not just cover-up the crimes, but enabled them.
Second, the NCAA was not coming to the case needing to develop facts and conduct an investigation. The Freeh report was as comprehensive an investigation as anyone could ever reasonably expect the NCAA to have, if not more so. To suggest the NCAA must come in and redo the investigation would be to suggest that the NCAA must never accept the results of a school’s investigation, even one as damaging to the school as the Freeh report.
The consent decree is just that: a tool for Penn State to consent to the punishment proposed by the NCAA. The decree even lays out the alternative for Penn State by listing what Penn State is agreeing to forego:
Penn State expressly agrees not to challenge the consent decree and waives any claim to further process, including, without limitation, any right to a determination of violations by the NCAA Committee on Infractions, any appeal under NCAA rules, and any judicial process related to the subject matter of this Consent Decree.
Had Penn State refused to agree to the penalties, the NCAA was prepared to take the case to the Committee on Infractions, allow Penn State to appeal, and potentially defend itself against a lawsuit by Penn State alleging that the NCAA ignored its own rules (one of the few ways to argue a violation of due process in a voluntary association).
The Consent Decree and the sanctions it includes are not a judgement as much as they are a plea bargain. The Penn State case at this point is most analogous to a company who submits to an IRS audit that finds violations of state law as well, then negotiates a plea bargain with the state. Faced with more investigations than it could possibly fight or having lost the will the fight any of them, Penn State jumped at the chance to put one in the rearview mirror.
Hopefully, in the midst of a complete rewrite of the NCAA’s bylaws and enforcement procedures, the Association will establish a process for when failures to adhere to general NCAA principles lead not to NCAA violations but to actual crimes. It is reasonable for the NCAA to be struck with a once-in-a-lifetime or once-in-a-generation event and have to come up with a way to respond. It is not acceptable for “perfect storms” to become a regular or even predictable event.
Such a process could take many forms. It could be an opt-in for schools faced with major scandals to deal with the NCAA president rather than the Committee on Infractions. It could be based on the vote of the membership or some representatives of the membership that the normal enforcement process is inadequate or inappropriate. Or it could be something entirely different than what we saw in Indianapolis today.
What it is unlikely to be is the president of the NCAA executing the broad disciplinary authority of an pro sports commissioner on a regular basis. The members of the NCAA have ceded a great deal of autonomy to the organization, but that does not mean they are not still academic institutions who jealously guard that autonomy. The members of the NCAA are unlikely to step completely away from the most serious scandals in college sports simply because giving the president free reign is more convenient.
Precedent only becomes precedent when it is applied the next time. History is littered with seemingly important decisions that faded into history and were never seen again. Until that happens, all the NCAA has done is establish a willingness to explore more options when a university’s conduct goes beyond the NCAA’s existing tools. What remains is when that exploration occurs.
So much of the debate over whether and how the NCAA could punish Penn State has focused on areas of the NCAA Manual like Bylaw 10.1, Bylaw 2, and Bylaw 19. But there’s another place Penn State might need to worry about should the NCAA decide to follow through on investigating the athletic department. It’s a bylaw that both clearly establishes the NCAA’s authority to discipline Penn State, while also allowing it the freedom to impose a wide range of sanctions, up to and including an NCAA penalty that is worse than the “death penalty.”
At its most basic, the NCAA is a voluntary membership organization. To put it more bluntly, the NCAA is a club. As a club, it has the power to let in the types of organizations it likes. More importantly, it has the power to kick schools out of the club:
126.96.36.199 Termination or Suspension. The membership of any active member failing to maintain the academic or athletics standards required for such membership or failing to meet the conditions and obligations of membership may be suspended, terminated, or otherwise disciplined by a vote of two-thirds of the delegates present and voting at an annual Convention.
The bylaw goes on to define the process for terminating, suspending or disciplining a member school. Specifically, the Board of Directors and the school must be notified of the action by November 1 before the Convention. That notice must state the grounds on which the action is based. The Board of Directors must approve the action to go forward, and it is then published in the Official Notice of the Convention. The vote would occur at a business session during the Convention, which this year is January 16–19 in Dallas.
They could cut scholarships, impose the death penalty, give postseason or TV bans, fine the school, or make up any other punishment. Penn State’s membership could be terminated or suspended, meaning the school loses all rights and privileges of being a member of the NCAA. That effectively means an indefinite death penalty for the entire athletic department.
A quick aside about the difference between termination and suspension. If a school’s membership is terminated, it can only be reinstated at an annual Convention, meaning the punishment would have to last a minimum of one year. If a school’s membership is suspended, the Board of Directors can reinstate it at any time after six months have passed.
Bylaw 3.2.6 explains why all the limits on the NCAA’s enforcement process do not apply here. Those limits are only for discipline between NCAA Conventions. If the entire membership can get together to pass judgment on another member, the enforcement process does not apply.
With all the focus on the NCAA’s normal enforcement process, the challenge has been to shoehorn potential violations of catch-all bylaws like unethical conduct or lack of institutional control into a process designed to start with more specific misconduct. Discipline at an annual convention needs none of that, and the conditions and obligations of membership include the most catch-all of all catch-all bylaws in the NCAA Manual:
Bylaw 188.8.131.52 Standards. Active members agree to maintain high standards of personal honor, eligibility and fair play.
That statement can be parsed many ways, and the NCAA members could always fall back on reading “with respect to NCAA rules” at the end of the bylaw. But combined with statements like Bylaw 2.4’s lofty claim that ethical conduct “should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program,” it certainly establishes enough credibility for the NCAA membership to act.
Should the NCAA get involved, this is the best way. It sets a precedent in the way precedent should be set: by a super-majority of the entire association agreeing to move the organization in that direction. It does not require that the normal enforcement procedures be stretched to accommodate a scandal that goes far beyond NCAA rules. And it matches an unprecedented situation with an equally unprecedented vote.
It would also firmly and publicly (since such a vote would turn the NCAA Convention into the most watched off-field sports moment of the year) state, right from the members’ mouths, what the NCAA will be going forward. If the members are faced with this decision and choose not to discipline Penn State, the NCAA is more or less a sports league that has an educational component to it. If they do punish or kick out Penn State, then the NCAA establishes at least a claim to something more, both in sports and higher education.
After Jerry Sandusky’s conviction, eyes have turned to Penn State and what responsibility the institution has. There are no shortage of investigations into the scandal Penn State Scandal.
• Penn State’s own internal investigation
• Criminal prosecutions of Penn State administrators
• A federal investigation out of the US Attorney’s office
• The Department of Education investigation
Meanwhile, the NCAA has stayed near, if not on the sidelines. Questions were sent to Penn State about its institutional controls and the NCAA continues to monitor the other investigations. But to date, we have not heard of an active NCAA investigation into any specific aspect of the case.
As Penn State’s scandal drags on, calls for the NCAA to get involved will continue to grow. Investigators will move into new areas which will uncover new evidence. Each new piece of evidence convinces some people that either a) the case falls clearly within the NCAA’s jurisdiction or b) that the NCAA needs to get involved even though the case might be on the edge of what the NCAA oversees.
The cover-up is worse than the crime, but the NCAA has rarely punished a school without the latter. Individuals have been punished for covering up something that was not against NCAA rules (Dez Bryant is a notable example) but rarely has just institutional control or a failure to monitor been the sole basis for a case. There’s almost always some other violation of NCAA rules that resulted from a failure to monitor or lack of institutional control or that was covered up through unethical conduct.
Those other violations, while less important than the basics of how an athletic department is run, are the nexus for penalties. If you provided extra benefits or impermissible financial aid, you lose scholarships. If you broke recruiting rules, you get recruiting penalties. If you cheated and made it to the postseason, the team is banned from the postseason. There are exceptions, but generally penalties have some relationship (at least in kind if not always degree) to the violations that occurred.)
Without a violation of the NCAA’s “day-to-day” rules, any penalty is likely to be less visible or have less of a competitive impact. A lengthy probation, disassociation of personnel (most of who are already gone from the university), show-cause orders, and a hefty but manageable financial penalty are much more likely than the death penalty or significant scholarship reductions. The NCAA’s enforcement process is ultimately a corrective, rather than punitive one. The corrections that make the most sense here are administrative rather than competitive.
A major infractions case against Penn State would ultimately be compared to one and only one case in the history of the NCAA: Baylor’s 2005 major violation case that came to light following the murder of Patrick Dennehy. But any comparison between the two is difficult because of the laundry list of NCAA violations, rather than crimes, that were covered up in the Baylor case. Furthermore, when the Committee on Infractions speaks of aggravating factors when dishing out punishment, there is only one subtle reference to the crime that occurred:
Four former staff members were found to have acted unethically including an offensive attempt to cover up the violations.
That “offensive attempt” was a plot to make it look like Dennehy paid his tuition by dealing drugs, not through illegal payments from the coaching staff. Even then, the focus is on NCAA violations rather than crimes.
Another alternative is to not pass Penn State through the very public major infractions process and instead put Penn State through the certification program. Until recently, certification was a multiyear process that schools generally went through once every 10 years. However, this section of Bylaw 19.5.1 gives the NCAA another reason:
Institutional re-certification that its current athletics policies and practices conform to all requirements of NCAA regulations;
Bylaw 19.5.1 is the list of penalties for secondary violations. The penalty could be imposed by the NCAA staff, without the need for a Notice of Allegations, Committee on Infractions hearing, or public report. Penn State could even self-report the violation and self-impose the penalty.
Requiring Penn State to go through certification seems like the most appropriate response from the NCAA, but has a number of problems. First, the certification process is in the midst of a major overhaul and might not be ready for a school for another couple of years. Second, passing PSU through anything but the major infractions process puts the NCAA in the position of being criticized from all fronts: for getting involved at all, for giving Penn State a slap on the wrist, and for participating in the cover-up.
The NCAA could always go the other way and harshly punish Penn State with the death penalty, major scholarship losses, postseason bans, harsh recruiting restrictions, or onerous financial penalties. That would avoid any criticism of not doing enough but would almost certainly lead to charges of doing too much and punishing innocent student-athletes. In addition, those penalties could not be easily justified by pointing to a clear link between an NCAA violation by Penn State and a competitive advantage gained on the field.
With so many different investigations going out surrounding Penn State, it is also entirely possible that violations unrelated to the Sandusky scandal are discovered. Any NCAA violations that stem out of these investigations will be mentioned alongside the bigger scandal and the NCAA judged on whether the penalties were sufficient for that scandal. In a worst case scenario, the investigations find clear evidence of violations in another sport, but the NCAA decides it cannot proceed against the football program.
Simply put, the NCAA is poorly equipped for this sort of scandal. The lack of investigative tools has not been a big impediment, with a number of state and federal agencies poking around. But the entire concept of how the NCAA penalizes schools is at odds with what is needed in this case. Even novel potential penalties that might apply, like prohibiting Penn State from operating youth sports camps for at time seem trivial compared to the seriousness of what occurred.
As soon as the scandal broke, the NCAA was always going to be backed into a corner. The letter sent to Penn State did not change the NCAA’s status, it just acknowledged what it was: that the NCAA was going to need to make a very difficult decision to get involved in a case on the limits of its jurisdiction. If the letter did anything, it established that the NCAA would be focused on how the running of Penn State athletics may have contributed to the problem, rather than holding a school responsible for the criminal actions of a single staff member.
Whether the NCAA gets enough evidence to bring some sort of case against Penn State remains to be seen, and that comes before the question of whether the NCAA gets enough evidence to impose serious sanctions on Penn State. But one thing is guaranteed: that to a significant portion of people who matter, the NCAA will come out looking poorly at the end. Outside of all these investigations uncovering significant violations of NCAA rules, this case will not go down as one of the NCAA’s finer moments.
With that out of the way, what is the NCAA to do? The best answer is for the Association to do whatever it was going to do anyway. Public pressure is coming from all sides, so the forces all cancel each other out. The NCAA can move at its own pace, choose whatever process is appropriate, and impose whatever penalty it deems fit. And all this can be done with confidence that, while another result might have been better, there’s no option that would have turned out well.