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The NCAA’s Lose-Lose Situation With Penn State

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.

Investigations of the 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.

Calls for Increased NCAA Involvement

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.)

It’s Difficult to Match These Crimes with a Punishment

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 Death Penalty is Still Possible

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.

What do you think the NCAA should do in this lose-lose situation? Leave a comment below, or connect with us on Facebook, Twitter, or Google+!

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