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A Fate Worse Than Death

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:

Bylaw 3.2.5 Loss of Active Membership 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.

Under This Bylaw, the Membership of the NCAA Could Do Virtually Anything to Penn State

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 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.

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