Originally written on Pitt Blather  |  Last updated 11/17/14

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?

But 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”.

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

This 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

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