, I took a look at how Penn State might eventually get its sanctions reduced. That was in the wake of PSU trustees getting more vocal about their desire to see the sanctions reduced along with the news that Penn State was already complying with the reduction in overall football scholarships a year early. I was thinking about this topic being seriously revisited by the NCAA sometimes in spring or summer 2014. But the NCAA has seen fit to go ahead and modify the sanctions, bringing Penn State back to full strength with scholarships as early as 2016–17.
Whether the sanctions should have been reduced and whether they should have been imposed in the first place have been the subject of intense debate. That is in addition to the objections to how the process of penalizing Penn State went down, including the secrecy demanded of Penn State’s administration, the lack of an NCAA investigation to confirm the Freeh Report, whether Penn State’s president had authority to agree to the consent decree, and whether such harsh sanctions could be imposed without giving Penn State a hearing or appeal.
From the moment the sanctions were announced, the NCAA has had to answer questions about whether the process used to punish Penn State would be used again. The federal investigation into the handling of sexual assaults at Montana was a logical next step, but the NCAA was all but expected to use such an untraditional maneuver even in traditional cases of possible NCAA violations like Miami’s ongoing infractions case and UNC’s no-show classes.
Through it all, the NCAA has maintained that the actions taken in the Penn State case were a one-time deal. It was extraordinary action taken in response to an unprecedented situation that is unlikely to be repeated. The reduction of the sanctions has continued in that vein:
Mark Emmert on PSU call: “It should not be seen as precedent for handling other cases.”
— Brad Wolverton (@bradwolverton) September 24, 2013
So much effort has been put into reminding everyone that the Penn State case was not going to be a model for NCAA enforcement going forward that the attitude threatens to prevent the NCAA from learning from the Penn State case and adapting some parts to the regular enforcement process.
The lack of NCAA follow-up to the Freeh Report has been a major bone of contention, but change one fact and the situation becomes very different. What if the NCAA had commissioned the Freeh Report and Penn State agreed to accept it, rather than the other way around?
Immediately it becomes clear why the NCAA outsourcing enforcement is not a silver bullet. The Freeh Report was challenged left and right despite the fact that it was very unfavorable to the organization which commissioned it. If the NCAA had paid for the investigation ultimately used to punish Penn State, the cries of the NCAA using a convenient opportunity to take down a powerful school would have even more fuel in the form of a report that found exactly what the NCAA allegedly wanted.
But is that system not what many commentators have been demanding for years, as recently as this summer? Even if third-party investigations are not free from the appearance of impropriety, there is still the possibility for more independence and a quicker resolution to cases. Maybe hiring an outside firm is not appropriate in every investigation, but it should be a tool for the NCAA to use when confronted with a Miami or even the next Penn State.
One hurdle for any legal challenge to the Penn State sanctions is that president Rodney Erickson ultimately agreed to the penalties. While his authority to sign the consent decree is a matter for agency law and the way it was negotiated should receive a critical eye even within the NCAA, at the very least the sanctions can easily be cast as a plea bargain rather than a guilty verdict and sentence.
The NCAA has cobbled together a version of plea bargaining using a combination of self-imposed penalties and the summary disposition process. But it is very inflexible, as seen in the Oregon case where the summary disposition agreement did not pass Committee on Infractions review, adding months to the case. And it simply is not available in a case like Miami, even after a scandal like the misconduct during the investigation.
A more flexible approach to allowing institutions and coaches to plead guilty or even end cases with penalties without an admission of guilt could potentially resolve a number of cases quicker and provide an easier exit when a case gets bogged down. The challenge is to create a plea bargaining system that does not simply result in lighter penalties and less responsibility for institutions across the board. These goals might not ultimately be reachable, but the idea deserves more serious discussion than it has received.
More Meaningful Probation
If you accept the NCAA’s basic premise in the Penn State case, that it was the cover-up, not the crime, that was being punished and that this cover-up was the result of poor culture at Penn State, then the reduction in the sanctions was not just possible but almost compelled by what has happened since. If the goal of the sanctions was to force Penn State to change its approach to athletics and adopt recommendations to that effect, the NCAA could not ignore that this process was highly praised by the monitor and ahead of schedule.
All NCAA infractions cases involve varying degrees of both corrective and punitive action. The most common penalty in major infractions cases and the best example of corrective action is probation. But probation is mostly a period of increased monitoring and reporting. It could be strengthened by making the core of probation a requirement that the school implement specific recommendations with rewards for doing so ahead of schedule and penalties for lagging or failing to complete the assigned tasks.
Imagine a system where a football team receives the following penalties: loss of five scholarships per year for two years and two years probation with specific improvements requested. If the institution completes the improvements in two years, nothing happens. If everything is finished in one year, the institution gets the second year of scholarships back. If the institution fails, a third year of scholarship reductions is imposed.
It would require splitting out which penalties are punitive and thus cannot be reduced through a successful probation period. Like plea bargaining care would be needed to avoid probation becoming a vehicle for institutions to break rules without serious consequences. But if successful, basing some penalties or relief on how an institution performs after the violations ties ongoing penalties to an institution’s ongoing improvement (or lack thereof). This is more fair when the most effective penalties often continue years after the violation occurred and impact individuals who had nothing to do with the original violation.
Perhaps all these recommendations make sense. Perhaps none of them can be successfully implemented. But it increasingly appears that one of the biggest mistakes the NCAA is making with Penn State is not taking what was learned throughout this process and trying to apply it more broadly. From the outside it looks like the NCAA is committed to the idea that the Penn State case was a one-time event and nothing that happened as a result will be repeated. That is a shame when buried in the case are examples of meaningful reforms which would quiet at least some of criticisms of the NCAA’s enforcement process.