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June 20, 2012

We have read and heard the cry for the NCAA to issue the “Death Penalty” to the Penn State football program due to a lack of institutional control because of the particulars of the Jerry Sandusky child abuse scandal.   However, does what happened meet the NCAA’s own criteria and purpose of their rule regarding institutional control?

Perhaps the pertinent question is why the NCAA should even be involved in this?  Back on November 10, 2011 the NCAA President Mark Emmert’s public statement on this was as follows:

“Regarding the ongoing Penn State criminal investigation, the NCAA is actively monitoring developments and assessing appropriate steps moving forward. The NCAA will defer in the immediate term to law enforcement officials since this situation involved alleged crimes. As the facts are established through the justice system, we will determine whether Association bylaws have been violated and act accordingly. To be clear, civil and criminal law will always take precedence over Association rules.”

Emmert basically said that ‘we’ll wait until the dust settles then decide if we want to get involved’. Perhaps that was the right and legally correct thing to say.  I expect that it wasn’t nearly as forceful as some wanted it to be.  That last sentence -”To be clear, civil and criminal law will always take precedence over Association rules.” -  is the open door to not getting their hands dirty or having to deal with it at all.

However, aside from all that, the “Lack of Institutional Control” rule applies to the principal authoritative members of the football (sports) program and athletic departments. The issue goes to how that lack of control by the people affects the players’s personal behavior with regards to NCAA regulations and whether or not the program gets a “competitive edge” due to that lack of control.  I say again,  ”competitive edge”.

However, Mark Emmert also sent a Letter of Inquiry to PSU asking questions specific to the Sandusky scandal.  Regarding that letter he said this:

“…the acts described in a grand jury report — including allegations that Sandusky raped or sexually assaulted eight boys over a period of 15 years — try not only the integrity of the university, but that of intercollegiate athletics as a whole.” Emmert said that the N.C.A.A. would examine both a lack of institutional control, one of the most serious charges the N.C.A.A. can make against a university, as well as “the actions, and inactions, of relevant responsible personnel.”

“The circumstances are uncharted territory in many ways,” Emmert said in a telephone interview. “This is not in my mind or in many other people’s mind an unprecedented application of our bylaws and our constitution. It is a very unusual set of circumstances.”

There isn’t any doubt that the NCAA will review this issue very carefully to see what sanctions they could levy against PSU for the football coaches’ and administration’s actions.  It is the proper thing to do.  The question is whether they will take any actions especially since it is so unusual.

Emmert addresses this issue here:

Emmert stressed that the letter sent to Penn State was different from a formal N.C.A.A. investigation letter. It includes a series of questions for Penn State to answer, and Emmert said that the N.C.A.A. would monitor the case throughout the legal process. The N.C.A.A. will not send investigators to Penn State’s campus.

That’s going to be the difficult part, untangling what parts are criminal and what parts are relevant to our bylaws,” Emmert said. “Those are two different things.” (emphasis mine)

Some people may be missing the point on exactly what the NCAA really is.  It is not a criminal justice entity, hence the public statement above ,  but is an entity created solely to administer sports rules and regulations.  This is from their website regarding “Rules Compliance” :

 “The NCAA enforcement program strives to maintain a level playing field for the more than 400,000 student-athletes. Commitment to fair play is a bedrock principle of the NCAA. The NCAA upholds that principle by enforcing membership-created rules that ensure equitable competition and protect the well-being of student-athletes at all member institutions.

The enforcement program is dedicated to creating positive student-athlete experiences by preserving the integrity of the enterprise. The mission of the NCAA enforcement program is to reduce violations of NCAA legislation and impose appropriate penalties if violations occur. The program is committed to the fairness of procedures and to the timely and equitable resolution of infractions cases. 

 A fundamental principle of the enforcement program is to ensure that institutions abiding by NCAA legislation are not disadvantaged by complying with the rules.”  (Emphasis mine).

In addition, the NCAA’s own stance on “lack of institutional control” can be found in this issuance:

PRINCIPLES OF INSTITUTIONAL CONTROL AS PREPARED BY THE NCAA COMMITTEE ON INFRACTIONS

It is a formal and detailed explanation of just what institutional control is according to the NCAA’s mandates.  It starts off with this:

“In determining whether there has been a lack of institutional control when a violation of NCAA
rules has been found it is necessary to ascertain what formal institutional policies and procedures were in place at the time the violation of NCAA rules occurred and whether those policies and procedures, if adequate, were being monitored and enforced.”

Note that the subject here is institutional controls as it pertains to NCAA rules, nothing else.  Further, the NCAA states this:

“Even though specific action has been taken to place responsibility elsewhere, these individuals will be assumed to be operating on behalf of the institution with respect to those responsibilities that are logically within the scope of their positions. Their failure to control those matters so as to prevent violations of NCAA rules will be considered the result of a lack of institutional control.”

Again, the issue is in reference to violations of NCAA rules.  Quite possibly neither of those issues have been breached or have been happening at PSU over the last 14 years since Sandusky’s known crimes started, certainly not as far as the NCAA’s football competition rules stand.

There isn’t one instance in all of the details of the scandal that points to Penn State not abiding by fair play as far as football competition goes  or doesn’t “ ensure equitable competition and protect the well-being of student-athletes at all member institutions.”  At the most it is a very, very long reach for the NCAA to justify that given what we know about the scandal and PSU’s actions in it.

Granted the lust for football and the cult-like atmosphere that surrounded the football program at PSU is integral to the Sandusky scandal;  that isn’t in doubt.  There is also no doubt that the cover-ups by the football staff and the athletic department were done to protect the football program itself.  But does that meet the NCAA criteria for this institutional control rule as it is defined by the NCAA itself?

This as a problem for the university’s administration as a whole and appropriate sanctions should come down from the State’s Justice Department, as they are and have been, to the PSU individuals involved in the Administration’s cover up .  Yes, it involves the athletic department and certainly PSU’s BOT could make a negative decision on the future of the football program (yeah, OK!), but most probably not the NCAA.

There are at least two sides to this issue and you can be sure that lawyers everywhere will be flying into Happy Valley and Indianapolis to be hired to argue the case if the NCAA decided to move in any direction suggesting sanctions would be enacted — including the “death penalty.”

On a more practical point, the NCAA is simply not equipped to handle any such investigation that would be required to try and place their own sanctions on Penn State. As Stewart Mandel at SI.com put it: “It’s out of its league on this one. Its investigators have their hands full with free tattoos and freshmen sleeping on couches. They’re in no position to dole out sentences for actual real-life crimes.

That’s not to say that Penn State doesn’t have a nest of football-mad, self-centered, inhumane criminal vipers in its administration, it obviously did and probably still does.  Those vipers also committed, IMO, criminal acts from 2001 on and certainly perjured themselves since Nov 5, 2011.  Punishment for that should be swift and unrelenting, but it should come from the State and/or the Feds, not from the NCAA.

That isn’t the NCAA’s role as defined by their own bylaws.

Note: Any lawyers out there who have working knowledge of the NCAA rules?  If so please chip in





Sadly, your analysis is spot on. While this entire situation screams of a lack of institutional control, I don’t know of any NCAA rules that were violated.

(BTW, speakiing of a lack of institutional control, you may recall that back in 04, the AD and PSU Prez wanted to talk to JoePa about resigning, and he wouldn’t let them in his house.)

Like it or not, it appears that the FB program may escape untarnished, and it will continue to draw >100k attendance for Florida International and rake in $70 million annual revenue.

Hey, it had its public pregame prayer before the Nebraska game last year … so everything is is just fine again, right?

Comment by wbb 06.20.12 @ 7:44 am

wbb-its not all that good in ups valley..there attendance took a big hit last year and i think they only went over 100k 1 or 2 times…
season tix sales have declined the last 2 yrs, before the scandal broke…
they may paint a pretty picture, but they dont sell that place out…guess fans got tired of playing the ohios and temple and some 1aa team each yr.

Comment by mike 06.20.12 @ 8:02 am

” “The NCAA enforcement program strives to maintain a level playing field for the more than 400,000 student-athletes. Commitment to fair play is a bedrock principle of the NCAA. The NCAA upholds that principle by enforcing membership-created rules that ensure equitable competition and protect the well-being of student-athletes at all member institutions.”

Level playing field? That’s contrary to what the BCS system is NOW and also to the 4 team proposed ‘playoff’.

Comment by pghFred 06.20.12 @ 9:25 am

In terms of whether the NCAA can act under the rules as you’ve outlined, the question they would have to explore is what effect would there have been on PSU’s football program – recruiting, funding, etc. – had appropriate action been taken when the University first became aware of the allegations. This is, sadly, a question that cannot be answered with facts only subjective opinion. That being said, did a lack of institutional control give the PSU football team an unfair advantage since immediate exposure might have had a negative effect on recruiting? One could make an equally compelling case that, if the situtation had been dealt with immediately, PSU might have come out with a better reputation as a place that looks out not only for student athletes but for the community at large.

Comment by Pitt Dad 06.20.12 @ 10:04 am

Sorry for the off-topic post above.

But I’ve really had enough of the PSU/Sandusky crap.

Comment by pghFred 06.20.12 @ 10:04 am

Speaking of “The Death Penalty,” what’s up with The U?

Comment by Digdug 06.20.12 @ 12:00 pm

I want to cry everytime I read about that poor kid hiding his underwear. After that testomony, if there was ever a doubt in my mind what this trail has taught me, it’s to be a better protective parent. This exposed me to a dark side that I have never really grasped being a parent yet (my kids are under 4).

The NCAA should not really be punishing here. The Commonwealth should fire everyone involved even the two assistant coaches that were left on the staff. Taxpayers money is really exposed to lawsuits here.

Comment by Freebird 06.20.12 @ 12:48 pm

The perks of being involved with the football program – access to the players, staff, and facilities and events, including trips to bowl games – were used as a lure to attract victims by Sandusky just as much as Second Mile was. PSU officials knew this, or should have realized it based on the evidence that they were in possession of.

If that, and attempting to cover it up, aren’t violations of NCAA standards and a lack of institutional control, then what is the point of the NCAA having power over college athletics?

Comment by deepelemblues 06.20.12 @ 12:50 pm

Can’t the Big Ten issue sanctions if it so chooses?

Comment by Tonyinhouston 06.20.12 @ 1:54 pm

All that I can think of when this subject comes up, and am I sick of it, is two things. One, the word “humane” that the institution used to cover up the atrocious act. Two, those douche bags that took a knee in front of JoePa’s house after the fallout. Just shows how out of touch people are in “Happy Valley”. No one acted humanely or took a knee for the victims.

Comment by Bones 06.20.12 @ 2:13 pm

BTW, I am a HUGE Steeelers fan, to hell w/Franco for standing by those idiots.

Comment by Bones 06.20.12 @ 2:18 pm

Deep – but the question is “How did all that give PSU a unfair competitive edge when it comes to football?”

What exact rules did this break?

Comment by Reed 06.20.12 @ 4:16 pm

If they (well, not if) covered up criminal behavior, what else do you suppose they may have covered up over the years? All the NCAA has to do is peel a few layers away from the onion and there will more than enough institutional control evidence to put them away for our lifetime. The only question is do they have the guts to do it.

Comment by wally 06.20.12 @ 9:40 pm

Reed,

The cover-up did not so much provide an “unfair competitive” advantage, it was to hide an unfair DISADVANTAGE that PSU would have taken had these allegations come out 10 or so years ago.

I do agree with you that it is hard to point to chapter and verse of the NCAA rulebook and prove PSU guilty of anything.

Because of that, and PSU’s “history” of being a clean program, I do not expect the NCAA to do anything in the way of sanctions.

ME 2001

Comment by ME 2001 06.21.12 @ 9:00 am

From a football perspective, go this direction. Penn State and its Boosters filtered athletic funds to Sandusky, who used that money to travel across the state to put on football clinics for young men and prospective recruits.

Sandusky recruited for Penn State even though he was not on the “coaching staff”. Each college is allowed a specific number of coaches that can recruit. Sandusky openly recruited for PSU and got funding for it through contributions to his charity for lack of a better word. It acted as a flow through to help in recruiting.

So the question becomes, did any of the kids that attended his camp ever go to PSU? If the answer is yes, there can be violations. If the answer is no, there can still be violations as again, it upsets the concept of fair play. What makes it more problematic in my opinion is that PSU provided office space for Sandusky to run those camps, etc.

My final point on Sandusky is this. He didn’t just wake up in 1998 and start raping boys. He has done this for a longer period of time. You just don’t wake up at age 55 and say , i like little boys. I am sorry for being graphic, but that is the mental makeup of a molester. How many ex-players at PSU have gone through that and aren’t strong enough to come forward because of the shame? Wasn’t there promises of scholarships and playing time for kids that would acquiesce to his advances too? The NCAA needs to look at the totality of the circumstances and the flow of funds, etc. Unfortunately, the NCAA is not educated or sophisticated enough to figure this out in my opinion. Unfortunately, that leaves people who our part of the PSU cult to make decisions and we all know where that ends up….under the rug.

Comment by dhuffdaddy 06.21.12 @ 10:11 am

ME – try this on and tell me what you think…

“Going years back is playing a real “what if” game – so here’s one

What if Joe Paterno called the police the very first minute he had even heard anything about Sandusky’s pedophilia? I mean back in 1998 when you know he heard things.

Sandusky would have been fired and charged, PSU would look like a shining institution on a hill for being proactive and Paterno would have been held up as a hero… then every parent in the world would want to have their son play for him. They would have had so much a bigger competitive edge in recruiting it isn’t funny.”

Hell, their program isn’t hurt a bit so far even with the totality and magnitude of the scandal now – I doubt it would be anything but a blip in the road back then.

Comment by Reed 06.21.12 @ 1:55 pm

Reed,
I agree that if Paterno had done the right thing back when he first became aware of Sandusky’s pedophilia he would have been a hero. Instead, being the moral midget that he was, he did nothing thus covering up a horrible crime to “protect” his and PSU’s reputation. This allowed Sandusky to commit more crimes and came to a bad end for all involved.

Comment by Houston Panther 06.21.12 @ 2:09 pm

Reed,

Must agree 100% with your thoughts. Paterno would have been exactly what he wanted to be – remembered forever as a “hero” to all!

Instead he tried to take the shortcut, hoping it would all go away and it found him out.

I lost a lot of respect for him, regardless the outcome of the trial or how much he really knew. I believe Paterno could have stopped this the instant he heard about it.

Comment by ME 2001 06.21.12 @ 4:13 pm

Reed,
That is like saying it is not a violation to pay a recruit if that recruit doesn’t pan out.
It is enough if the PSU institution’s actions/inactions were done so that the program wouldn’t be tarred with Sandusky’s perversions. And there is no other credible motive for their keeping this all under wraps.
Remember, when MM saw what he saw it was only a few years removed from Sandusky being their big name coordinator who was being spoken of as JoePa’s likely successor. These things coming out back then would have reasonably been thought to tar the football program.

Comment by JR 06.23.12 @ 9:08 am

If the NCAA finds no fault in Penn State, I see no value in the NCAA. NCAA rules and regs should be amended to include …Penn State coaching staff will no longer be allowed to rape children at any event or facility associated with Penn State…

Paterno must have believed in Sandusky’s value to Penn State Football. Why else would Sandusky have been protected, paid retirement, provided an office on campus for recruiting?

If Sandusky had been busted in 1998, Penn State would not have been able to recruit coaches and players of the same caliber. There was a competitive advantage because of Penn State’s coverup.

Comment by 49er Fan 06.23.12 @ 2:19 pm

Guys – I think the only answer to this is going to be the emails between the principals involved and Gary Schultz’s “secret files” (according to the Prosecution) that are supposedly being reviewed under a second Grand Jury report as we speak.

As of yet the only reason given for not altering authorities is the “Humane” email between Spanier and Schultz.

If other emails point directly to the cover up being done for the football program then that changes things, but I’m not 100% convinced that was the reason, at least the only reason, they kept things under wraps.

BTW 49s fan – those issues you mentioned were contractually provided for by PSU to Sandusky as was the Professor Emeritus status which gave him an office and access to the facilities. That isn’t unusual at all for a long-term salaried employee.

Sandusky was employed by PSU for 30 years and his retirement package is probably untouchable also. It is almost impossible to take away a legally contracted retirement benefits as that is part of the condition of agreement by both parties in employment and can’t be used as a punishment tool. Remember Sandusky already retired when these charges occurred.

The only way my retirement package can be stopped is if I’m incarcerated for more than 60 days up until my 65th birthday (thus I would be unable to be recalled to military active duty) and would start up aging the day I was released for incarceration. Then after age 65 it would be only if I’m convicted of treason.

Comment by Reed 06.24.12 @ 9:22 am

There are zero grounds for any kind of NCAA action here. Sorry, but that’s the law, that’s how the NCAA is set up and that’s what should happen. Throwing your hands up in the air and crying, “what about the children?!?!?” does nothing to change that fact.

Comment by Lawyer 06.25.12 @ 8:17 am

How about looking into the firing of Vicky Triponey? That, if initiated by Paterno, would qualify as lack of institutional control.

Comment by Duster 07.02.12 @ 12:44 pm

She wasn’t fired. She resigned under pressure. Paterno threatened to stop fundraising if she wasn’t fired. But that still doesn’t point to a specific NCAA rule violation.

Good article by Andy Staple on not punishing PSU football.
link to sportsillustrated.cnn.com

What rule would the NCAA claim Penn State broke? Ohio State fans should be intimately familiar with Bylaw 10.1, which forbids Unethical Conduct. The NCAA manual includes a list of circumstances in which 10.1 would apply, but makes sure to leave it open-ended by using the phrase “may include, but is not limited to.” This bylaw is the NCAA’s catch-all, and it usually is used to hammer coaches or administrators who lie to NCAA investigators. Conceivably, the NCAA could tag former athletic department employees Paterno, Curley and Mike McQueary with violations of Bylaw 10.1 for their failure to act after McQueary said he witnessed Sandusky raping a boy in a shower. (Cumulatively, these violations could draw the Lack of Institutional Control charge.) I studied 177 cases involving violations of 10.1 last year for a column about Jim Tressel, and every one of those 10.1 violations was attached to another violation of an existing NCAA rule. To apply it without attaching it to another violation would also be an extraordinary precedent.

An extraordinarily dangerous precedent.

There’s an old maxim: hard cases make bad laws.

From the moral and criminal side of things, it is very black and white. From an NCAA rules situation, not so much.

Comment by Chas 07.02.12 @ 1:09 pm

“There is a reason the IRS doesn’t punish murderers who pay their taxes. That same reason applies here.”

Exactly what taxes has Penn State paid? As far as I can tell, all they have been doing for over a decade is filing extensions.

Comment by Duster 07.02.12 @ 2:20 pm

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