THE WHY (AND WHY NOT) OF NCAA PUNISHMENT: PENN STATE IN CONTEXT

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1 THE WHY (AND WHY NOT) OF NCAA PUNISHMENT: PENN STATE IN CONTEXT INTRODUCTION Josephine (Jo) R. Potuto University of Nebraska Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative My focus in this presentation is to look at the circumstances of the NCAA treatment of Penn State after the revelations of the child sex abuse by former football coach Jerry Sandusky, and what that means for universities going forward. To place what happened in context, I first consider the organizational structure of the NCAA, the way NCAA investigations typically are handled, and the differences in the treatment of Penn State. I also will discuss NCAA initiatives and issues post Penn State and what universities should do to accomplish institutional control. The NCAA. The NCAA is a private association. Its members are colleges and universities. A private association is, in essence, a club. Club members gather for particular purposes. They adopt rules and policies to govern club operations. They have authority over their members, and no one else. If a club is big enough, it has an administrative staff to implement rules and policies and to oversee member compliance with them. If a club member is dissatisfied with the operation or rules of a club, that member can seek to get them changed. Or that member can leave the club. 1 1 For a fuller discussion of the prerogatives and legal status of private associations such as the NCAA, see Potuto, The NCAA Rules Adoption, Interpretation, Enforcement, and Infractions Processes: The Laws That Regulate Them and the Nature of Court Review, 12 Vanderbilt Journal of Entertainment and Technology Law 257, (2010) (hereafter NCAA Processes).

2 Page 2 The NCAA is very big, national in scope, and influential. But still a club. Like any club, the NCAA has direct authority only over its members. What makes that hard to see is that NCAA club members are artificial entities. Because NCAA members are artificial entities, NCAA rules directed at member universities necessarily are implemented by university staff. Because NCAA members are artificial entities, they commit rules violations through the rules violations committed by their staff, student-athletes, and others for whom they are responsible (i.e., boosters). Because NCAA members are artificial entities, any penalties imposed on them, even though formally directed only at them, necessarily have impact on their student-athletes and staff. Sometimes the impact of a penalty falls directly on the wrong-doer as, for example, when a student-athlete commits academic fraud and the NCAA Student-Athlete Reinstatement Committee directs his university to hold him out of competition. But the impact of penalties imposed by the Committee on Infractions inevitably falls on those who did not commit the violations. And thus comes part of the genesis of the misunderstanding of NCAA operations and, at times, the extraordinary stresses. Timing of Punishment. Punishment comes after violations are committed. Your child plays hooky. You find out and ground him for the next two weeks. Someone commits a burglary. By the time an investigation singles her out; and then she is arrested, prosecuted, and convicted, it is three years before she goes to prison. The delay is unfortunate. But, even with the delay, it still is the culpable individual who is punished. The guilty party gets her just due. The sun and moon are in alignment. It would set the space/time continuum on its head if we knew in present time what rules were going to be broken AND punished people in present time for violations they have not yet

3 Page 3 committed. (Not to mention that if we knew about violations in advance presumably we would prevent them from happening.) For many reasons, punishment often comes long after violations are committed. Violations almost never are discovered in real time. There are investigations, hearings, appeals, and the time it takes to write reports explaining findings and penalties. Most commentators noted the speed at which the NCAA Division I Board and President Mark Emmert imposed penalties on Penn State. Consider, however. Penn State commissioned an investigation by Louis Freeh, a former FBI director and federal district judge. 2 The particular incidents cited in the Freeh Report occurred in 1998 and So, the time from violations to penalties was 11 to 14 years. The Freeh Report issued in The investigation was conducted with full resources and at full throttle. Information from the Grand Jury that indicted Sandusky gave the Freeh Report investigators a jump start. And still, the investigation took eight months. The real speed, therefore, was in how quickly penalties were imposed after issuance of the Freeh Report. That speed was possible only because there was no NCAA adjudicative hearing to assess the weight of the facts adduced and to hear the response of Penn State and its senior administrators. THE NCAA AND ITS CRITICS Among the cacophony of complaints about NCAA action there are three I want to address briefly. The first two illustrate the core elements of NCAA punishment. 1. NCAA punishment hits the innocent while the guilty parties move on. 2. NCAA enforcement is inconsistent Cam Newton got to play while USC was kept out of bowl games for two years. 3. NCAA investigators overreach in their zeal to make a case. 2 REPORT OF THE SPECIAL INVESTIGATIVE COUNSEL REGARDING THE ATIONS OF THE PENNSYLVANIA STATE UNIVERSITY RELATED TO THE CHILD SEXUAL ABUSE COMMITTED BY GERALD A. SANDUSKY (Freeh Sporkin & Sullivan, LLP, July 12, 2012), hereafter the Freeh Report.

4 Page 4 NCAA Punishment Hits The Innocent While The Guilty Parties Move On. Reggie Bush commits major violations at USC. Yet Reggie Bush goes on to compete for the Miami Dolphins while football players at USC are banned from post season for two years and USC loses 30 scholarships. Football players who were not at USC when the violations were committed. How is this fair? is the cry. How is this reasonable? In fact, NCAA punishment ALWAYS focuses on the guilty party; in other words, the university whose staff and student-athletes committed the violations. It does not matter whether it is a post season ban or a limit on scholarships. It still is a penalty against the guilty party. Because universities are artificial entities, however, there is collateral damage. Committee on infractions penalties are under inclusive because they reach the guilty parties who directly engaged in rules-violative conduct only if they still are employed by member universities or still are student-athletes at them. Committee on Infractions penalties are over inclusive because they have substantial impact on individuals who had no hand in committing the violations. Certainly no fair-minded individual or association would penalize the innocent if there were another way to do it. 3 And certainly no reasonable individual or association would let the guilty go unpunished if there were another way to do it. Although some NCAA critics therefore attack the NCAA for being neither fair-minded nor reasonable, the accurate explanation is that we operate in the real, fallible, world, and not Eden before the fall. To be effective deterrents, penalties must do more than simply mirror the gravity of violations. Unfortunately, the ones that best do this -- loss of scholarships and loss of 3 In recognition of the impact on football student-athletes, part of the NCAA sanctions against Penn State permitted Penn State football student-athletes to transfer and exempted them from the bylaw restriction requiring that they sit out a year. NCAA Clarifies Transfer Rules for Penn State Football Players, Newsblogs, cnn.com (July 24, 2012). To facilitate this option, recruiting limit were lifted so that coaches at other schools could add Penn State players even if they had no scholarship room for them. What has been widely reported is the impact on Penn State current players and stability on the team once this free-recruiting zone was created. Tramel, Penn State: Recruiting Breaks Code, Coach Says, Barry Tramel s, Blog, (July 31, 2012).

5 Page 5 competition opportunities, particularly post-season 4 -- also are the ones with the most direct impact on innocent student-athletes and staff. As to the culpable parties whose conduct put the university on the hook: it would be wonderful if we could devise ways to hit Reggie Bush in addition to USC. 5 But the NCAA can do little to Reggie Bush once he leaves for the pros. 6 And even if it could, exacting meaningful penalties against him would not do enough to offset the competitive advantage gained by USC through Bush s competition while ineligible. That still requires penalties against USC. NCAA Enforcement Is Inconsistent Cam Newton Gets To Play While USC Is Kept Out Of Bowl Games. An institution s responsibility for violations committed by its coaches, other staff members, student-athletes and boosters is handled by the Committee on Infractions. This Committee conducts adversarial administrative-type hearings and makes fact findings. Formal charges are brought by the NCAA enforcement staff. Institutions and coaches have time to make full written responses. A student-athlete s culpability for violations is handled by the Student-Athlete Reinstatement Committee. Because of the time pressures of competition and the fact that 4 NCAA BYLAWS art (e) and (l). For coaches, what matters most are show cause orders that restrict their opportunities to coach in college. What also may matter is vacation of wins from their individual records. 5 Some suggest that a money fine could be an effective penalty. But a big money booster at a major program (or a cohort of them) always would be available to ante up to cover a fine, no matter how large. But that may not even dent a university s endowment. Penn State, for example, is reported to have an endowment of more than $1.8 billion. Barbara Goldberg, "Penn State Could Incur Steep Federal Penalty In Probe Of Unreported Crime," Allentown Morning Call on-line (July 25, 2012). The way to get at deterrence is to affect the program that propelled the violations. Keep it off TV or out of championships. Take away scholarships to reduce the team s competitive edge going forward. By so doing, incentives to cheat are reduced in ways that fines cannot. 6 There are a few things the NCAA can do once a coach or student-athlete is no longer at a member institution. Through a show cause order the Infractions Committee effectively can prevent another NCAA institution from hiring a coach. But it cannot prevent a pro team from hiring him. And the penalty has teeth inly if the coach seeks again to coach at the collegiate level. The Infractions Committee also can order an institution to disassociate former staff members and student-athletes from any connection with their athletics programs, but that sanction seems woefully inadequate when compared to the havoc visited on a program by their violations.

6 Page 6 student-athletes only have a four-year competition window, 7 this Committee acts informally and typically quickly, with no independent fact finding. It hears no presentation adverse to that of an institution s. It bases its decision on an institution s submission of what violations were committed, how and why. Its only authority is to decide what it will take before a studentathlete is again eligible to compete. Because every student-athlete violation also is an institutional violation, every studentathlete reinstatement case also is potentially a major infractions case 8 to be heard by the Committee on Infractions. Examples of student-athlete reinstatement cases that also were heard by the Committee on Infractions are the Ohio State case featuring Jim Tressel and the tattoos and the 2009 Florida State academic fraud case, the one that resulted in the vacation of 12 of head football coach Bobby Bowden s wins. Because different committees are involved, with different jurisdictions and processes, and different substantive balancing priorities, decisions between the Student-Athlete Reinstatement Committee and Committee on Infractions may be, or at least may appear to be, inconsistent, even when the same conduct is not the basis of both a student-athlete reinstatement case and a major infraction case. 9 NCAA Investigators Overreach In Their Zeal To Make A Case. The NCAA enforcement 7 NCAA BYLAWS arts (Seasons of Competition), (Five-Year Rule). 8 Under current bylaws, violations are major or secondary. A secondary violation is a violation that is isolated or inadvertent in nature, provides or is intended to provide only a minimal recruiting, competitive or other advantage and does not include any significant impermissible benefit. NCAA Bylaw To avoid the semblance of inconsistent results in infractions cases involving potential serious student-athlete misconduct, NCAA student-athlete reinstatement processes would need to replicate those currently employed by the Committee on Infractions, with the result that reinstatement decisions would take the same one or two years (or longer) that it now takes before a full investigation and Committee on Infractions fact hearing. This time delay effectively might mean a student-athlete is never again eligible to compete. In cases in which conduct is the basis of both a reinstatement petition and a major infractions case, another alternative would be to bind the Committee on Infractions to decisions made in a student-athlete reinstatement process that is quick, non-adversary, and based on an institutional submission that could be self-serving, deceptive, or simply inadequate because of the time pressure of getting it done or the lack of investigative savvy of those doing the report. For a fuller discussion of the implications, see NCAA Processes, supra note 1, at

7 Page 7 staff lacks subpoena power and many of the other investigative tactics available to the police (wiretaps, sting operations, etc.). The enforcement staff also is not formally described as an adversarial investigative arm of the NCAA. Instead, its marching orders are to cooperate with member institutions in investigating and presenting a case. 10 From at least the time of Jerry Tarkanian s lawsuit against the NCAA, 11 there have been claims that the NCAA enforcement staff or the Committee on Infractions has operated in ways that are unfair to individuals or member institutions. The most recent case sparking these claims arises out of the enforcement staff investigation of the University of Miami for violations allegedly committed by staff members and student-athletes largely triggered by the actions of Nevin Shapiro, a Miami booster serving a 20-year sentence for securities fraud and money laundering. 12 As described in the Cadwalader Report, the result of an investigation commissioned by the NCAA, NCAA enforcement staff hired Shapiro s lawyer to ask questions in a bankruptcy proceeding, against the advice of NCAA general counsel and contrary to the expectation of NCAA member institutions as to the proper investigative scope of an NCAA enforcement staff investigation. 13 INSTITUTIONAL CONTROL The NCAA Division I manual has bylaws that regulate the conduct of NCAA staff and student-athletes and prohibit, among other things, academic fraud, gambling by student-athletes, and money paid to them by boosters and others. These are conduct bylaws. A fundamental responsibility of NCAA membership is to exercise institutional control over athletics programs 10 Among other things, this includes the fact that NCAA enforcement staff may not lie to an interviewee in order to obtain information. 11 Tarkanian v. NCAA, 488 U.S. 179 (1988). At the time of the lawsuit, Jerry Tarkanian was the head men s basketball coach at the University of Nevada-Las Vegas. 12 REPORT ON THE NCAA S ENGAGEMENT OF A SOURCE S COUNSEL AND USE OF THE BANKRUPTCY PROCESS IN ITS UNIVERSITY OF MIAMI INVESTIGATION 6 (Kenneth L. Wainstain, Cadwalader, Wickersham & Taft LLP, Februayr 17, 2013), hereafter the Cadwalader Report. 13 Id at

8 Page 8 consistent with the academic mission and in compliance with NCAA bylaws and policies. 14 Lack of institutional control is a separate, and extremely significant violation that means either that (1) an institution failed to have systems in place adequately conceptualized to prevent the violation of specific conduct bylaws or expeditiously to uncover them, or (2) an institution had systems in place but failed to follow them. INSTITUTIONAL CONTROL AND PENN STATE The NCAA was formed to regulate the rules of competition for collegiate teams and to run championships. Its job is to assure a level playing field (or track or court or pool). Because a level playing field can be tilted by events that occur off the field, NCAA conduct bylaws extend beyond competition rules to delineate academic eligibility, prohibit payments to studentathletes, 15 and limit play and practice time. 16 Until July 2012, NCAA jurisdiction to sanction institutions was restricted to conduct violations found in the NCAA manual and failure of institutional control in administering athletics programs to comply with these conduct bylaws. A failure of institutional control was tied to conduct bylaws. It was not a free-floating violation. Child sexual abuse is horrific. The Freeh Report described what occurred at Penn State as an intentional cover-up of Jerry Sandusky s crimes and traced the reasons to the culture of reverence for the football program that is ingrained at all levels of the campus community, a culture that subverted institutional processes and upended the core NCAA requirement that there must be institutional control of athletics programs. Certainly a culture of reverence for football 14 NCAA Const. art. 2.1(The Principle of Institutional Control and Responsibility). 15 NCAA BYLAWS art (Extra Benefit). An extra benefit is any special arrangement by which a studentathlete, relative, or friend gets a benefit not authorized in NCAA bylaws. Id. The extra benefit rule requires that student-athletes be treated in the same way that students not athletes are treated. Id. 16 See NCAA BYLAWS art. 17 for coverage of play/practice requirements. During the season, a student-athlete is limited to four hours per day and twenty hours per week of mandatory countable athletically related activities. NCAA BYLAWS art (Daily and Weekly Hour Limitations Playing Season). For the definition of countable activities, see NCAA BYLAWS

9 Page 9 can exist on a college campus. The questions, answered yes in the Freeh Report, are whether a cover-up occurred and whether it was prompted by that culture. Others disagree with the Freeh Report conclusions, including the current and 33 past chairs of the Penn State Faculty Senate 17 and, of course, the Paterno Family, supported by the investigation they commissioned. Taken in its best light, the failure of Penn State administrators to be abuser-wise and ask questions as information surfaced is incomprehensible. And certainly the consequences are tragic. That does not mean, however, that the conduct and consequences are ones for the NCAA to handle. The facts at Penn State can be stated quickly. Mike McQueary, at the time a graduate assistant with the football program, witnessed Jerry Sandusky in a shower in the football building engaged in what McQueary believed to be sexual activity with a male child. He reported the incident to then head football coach Joe Paterno who, in turn, reported it to the then athletics director, Tim Curley. Curley told Gary Shultz, the then senior vice president for finance and business, and, ultimately, both interviewed McQueary and then reported to the Penn State president, Graham Spanier. All three administrators Curley, Shultz, Spanier -- testified before the Grand Jury that they knew only that McQueary saw Sandusky in a football shower with a child, but nothing more. The conclusion of the Freeh Report, however, was that all three knew that there was a sexual assault and then covered up the information in order to protect the football program. The Freeh Report also concluded that all three failed to report what they knew as required under the Clery Act, a federal statute that obliges college campuses to report crime on campus Statement by a Group of Past Chairs of the Pennsylvania State University Faculty Senate Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications (August 28, 2012), 18 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C (f).

10 Page 10 At the time of the incident, Sandusky was a former assistant football coach with no formal employment relationship with Penn State. The child victim was not a Penn State student. Sandusky s conduct was criminal, without doubt, but it was not conduct prohibited by NCAA bylaws. If Curley, Shultz, and Spanier failed to meet their reporting obligation under the Clery and/or perjured themselves before the Grand Jury, then their conduct also was criminal, but, again, was not conduct prohibited by NCAA bylaws. Sandusky was indicted, tried, and convicted. If Penn State officials committed perjury at the Grand Jury or are criminally liable for failure to report violations under the Clery Act, those crimes too will be handled by the criminal law. If Penn State officials covered up Sandusky s crimes, then Penn State is subject to lawsuits against it by Sandusky s victims, lawsuits already filed. If there was a cover-up, or if Penn State processes were inadequate to manage the campus, then Penn State may need to answer to the Middle States Accrediting Commission. It may also need to answer to the Department of Education for failures to report crimes as required by the Clery Act. 19 There is nothing novel in the Committee on Infractions holding a university liable for a failure of institutional control due to culpable actions of high university officials. 20 There is nothing novel in the Committee on Infractions holding a university liable for a failure of institutional control due to inaction by university officials in the face of information that should have signaled to them a responsibility to act. Sanctioning Penn State for the failure of its See 34 C.F.R for implementing rules. The Clery Act, named for a Lehigh student who was raped and murdered on campus, requires all colleges and universities that receive federal funds (in other words, all of them) to keep information on crime on their campuses and to report this information to the Department of Education. The Clery Act may be enforced by civil penalties imposed by the Department of Education and also by cutting off federal student financial aid funds. 19 The Department of Education currently is conducting a Clery Act investigation. Schackner, Penn State Tries to Move Forward after Sandusky Scandal, Pittsburgh Post-Gazette (January 13, 2013). 20 Typically the officials are head coaches. But they also can be athletic directors or even university presidents E.g., Gardner-Webb University Infractions Report No. 217 (March 4, 2007); St. Bonaventure University Infractions Report No. 216 (February 19, 2004).

11 Page 11 administrators to act is not what makes the Penn State case different. What makes it different, indeed unprecedented, are three things. First, the facts on which the Penn State sanctions were based were not the result of an NCAA enforcement staff investigation and Committee on Infractions findings, but instead came from the Division I Board of Directors on the basis of a university investigative report. Second, the failure of institutional control decision was not tethered to conduct bylaw violations committed by Penn State. Instead, the Division I Board of Directors grounded its action on the basis of a free-floating failure of institutional control. The NCAA nexus was the conclusion that the failure of institutional control was prompted by the need to protect the football program. And, third, the decision to change course in the handling of Penn State came from the Division I Board of Directors, and not through the regular governance decision-making structure. The NCAA is a club. Its members decide its rules and policies, and they can change them. Its members also can decide to expel a member. The only legal limit to NCAA action is that it may not act in a way that is arbitrary or discriminatory. 21 The Division I Board of Directors ultimately has authority to make substantive changes to how the NCAA operates in other words, authority in the Penn State case to expand the understanding of what is an actionable failure of institutional control violation. The Division I Board of Directors also ultimately has authority to change the process by which decisions are made in other words, authority in the Penn State case to locate the situs of decision-making in the Division I Board of Directors. Finally, the Division I Board of Directors ultimately has authority to make changes to the process by which changes are made in other words, authority in the Penn State case for the Division I Board to decide it would change who would handle the Penn State case, and how it 21 See NCAA Processes, supra note 1.

12 Page 12 would be handled, rather than go through the normal governance structure to effect those changes. All that is a given. The public clamor for the NCAA to act is understandable. But was the action warranted? Advisable? There are reasons why investigative and factfinding processes wend their way slowly. Time is needed to gather all relevant information, to interview those with potential information, and to vet information received. Procedural fairness dictates that targets of investigation are given adequate opportunity to present facts in support of their position, to challenge adverse information, and to offer explanation for facts damning to them. In the wake of the lawsuit brought against the NCAA by Jerry Tarkanian, 22 the NCAA revised substantially its enforcement/infractions processes to enhance the procedural protections and overall fairness of its processes. If the Penn State case augurs more decisions outside the traditional processes, how will fair treatment be achieved? 23 In the Penn State case, the NCAA executed a consent decree with Penn State in which Penn State agreed to the penalties imposed. 24 Although what he said was disputed by NCAA officials, Rodney Erickson, the current Penn State president, explained the institution s acquiescence in the penalties as prompted by the threat that more serious penalties otherwise would have been imposed. 25 Again, the club has the authority to extract such a consent from a 22 Tarkanian v. NCAA, 488 U.S. 179, , 109 S. Ct. 454, (1988). 23 Brent Schrotenboer, Penn State president: Program faced multiyear shutdown, USA Today on line (July 25, 2012), 24 The penalties included a four-year post-season ban in football, the loss of ten initial football scholarships over four years with the overall number of scholarships for four years reduced from 85 to 65, vacation of all football wins from 1998 to 2011, five-years probation, and a $60 million fine. The NCAA/Penn State consent decree may be found at Evidence available to Freeh included the grand jury presentment against Jerry Sandusky Erickson said he agreed to the NCAA consent decree to avoid harsher penalties and also so that Penn State could move forward. But he refused to comment on whether agreeing to the consent decree mean he agreed with the Freeh Report conclusion that Penn State has a "culture of reverence for the football program" that led administrators to fail to take action when they received information about child abuse by former Penn State football coach Jerry

13 Page 13 member institution, or to impose more serious penalties. Again, however, the question is whether such treatment was warranted or advisable. The basis for the consent decree came from conclusions reached by Louis Freeh, an investigator hired by Penn State, and set forth in the Freeh Report. This both ameliorates the claims of Penn State to unfair treatment and raises another issue. There is risk in accepting a report commissioned by a university facing NCAA investigation and penalties. Such a report could be deceptive, self-serving, incomplete, or flawed through lack of investigative savvy of those conducting it. NCAA member institutions also might well feel more comfortable in findings used as a basis for decisions if they come from an entity independent of the institution under investigation. The Freeh Report is a well-documented and careful assessment of available information. That lessens substantially the danger in the NCAA relying on a university s own investigation and conclusions. But the NCAA still has a problem if another university presents its own investigative report and seeks to have its conclusions adopted and thereby bypass the enforcement/infractions process. How will it distinguish between the Freeh Report and that other university report? There also is risk in relying on a report, however well documented and carefully done, when all the evidence is not yet in. 26 The Freeh Report was careful to point out that its Sandusky. Instead, Erickson said that Penn State has many cultures and the Freeh Report painted with a broad brush. Wilson, Penn State Faculty Leaders Attack NCAA's Use of Freeh Report, Chronicle of Higher Education (August 28, 2012), 26 This is one of the issues pointed to in a recently released statement by 30 past chairs of the Penn State Faculty Senate. Statement by a Group of Past Chairs of the Pennsylvania State University Faculty Senate Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications (August 28, 2012), The Senate Chairs Statement also pointed to the difficulty of the NCAA ordering that all Freeh Report recommendations be implemented without any further analysis of their implications. Id at 2. See Wilson, Penn State Faculty Leaders Attack NCAA's Use of Freeh Report, Chronicle of Higher Education (August 28, 2012), Leaders/

14 Page 14 conclusions were based on the available witness statements and evidence. 27 As the old child s game illustrates, a story may change in tone and even content when passed from one person to another. People also mistakenly (but in good faith) seek compelling evidence before feeling they should report, draw adverse conclusions, or take action against co-workers and acquaintances. Non-lawyers mistakenly (but in good faith) often interpret a conclusion not to prosecute as a conclusion that there is no evidence. It may well be that no new information or explanation will undercut the conclusions in the Freeh Report. But we won t know until we hear it. Even before July 2012, when something happened on campus related in some way to athletics, there was a chorus of voices urging NCAA action. Until July 2012, the NCAA could respond that its jurisdiction was limited to substantive bylaw violations set forth in the NCAA manual. That no longer may be a sufficient response. The bright line of substantive bylaw jurisdiction may be history. 28 RULES COMPLIANCE ON CAMPUS; PERCEPTION AND REALITY Maintaining a rules-compliant program means that a university must have written procedures in place designed to assure the rules-compliant behavior of its staff members, student-athletes, regents and trustees, boosters, 29 corporate sponsors, and others formally associated with its athletics program. NCAA rules often are arcane, with fine-line, even counterintuitive, distinctions between what is permissible and what is not. If a violation is alleged, an institution is faced with showing that the individual who engaged in the conduct acted properly 27 Freeh Report. 28 Wolverton, NCAA to Study Limits of Presidential Power in Future Disciplinary Cases, Chronicle of Higher Education on line (July 25, 2012). 29 It is not against NCAA rules for an institution to have boosters, obviously. But a university is liable for NCAA violations its boosters commit. Even without booster status, an individual may commit a violation for which a university pays the NCAA price. A preferential treatment violation, which rings in amateurism concerns, occurs when services or benefits are provided to a student-athlete or prospective student-athlete because of her athletic reputation or ability or on promise of a return of favors once the athlete becomes a professional.

15 Page 15 and with no illicit intent. Because it is easy inadvertently to engage in behavior that is an NCAA violation, the safest course for institutions is to direct staff and student-athletes (and others for whom it is responsible) to steer well clear of the line between permissible and impermissible. Because perception can become reality, the safest course also is to direct them to avoid circumstances where there can be a perception of impropriety. 1. Conduct that itself is not a violation nonetheless provides context for evaluating violations. As an example. Suppose a university trustee learns that there is a hot quarterback prospective student-athlete who may not meet the university s admissions standards. She phones the director of admissions to find out the prospect s status. Suppose the prospect is admitted. The NCAA learns that the trustee phoned admissions. The phone call may give rise to a claim that the trustee tried to or in fact did influence the admissions decision. Whether rightly or wrongly, the director of admissions may feel the phone call was an attempt to influence a decision (and will say that to the NCAA when they come calling). If a university fails to persuade the NCAA that a prospect was admitted according to an above-board process, then there is an NCAA violation at least a recruiting inducement and possibly unethical conduct (academic misconduct). If the Committee on Infractions finds that the recruiting inducement was committed by a trustee or regent, then it may also find that a university did not have institutional control of its athletic program. 2. Equivocal conduct is interpreted in light of past behavior. Institutions with bad track records regarding violations do not get the benefit of the doubt when information about violations surfaces. This does not mean that anyone cooks the evidence. It means that fact finders assess the credibility of a repeat liar differently from the credibility of someone who has

16 Page 16 never been known to lie. It means that fact finders evaluate intent and equivocal circumstances in light of reasonable inferences and a pattern of behavior. Return to the example of the trustee phoning the campus admissions director about a prospect. Now suppose that the phone call to admissions is combined with information about the trustee s close involvement with several of the football coaches and keen interest in football recruiting. This additional information will make it that much harder to show that the phone call was not intended to influence a decision. The phone call also sets a tone by which other conduct of the trustee will be assessed, as well as like conduct by others high on the food chain. And it makes a finding of lack of institutional control the proverbial slam dunk. Consider a university with a prominent booster. One who repeatedly is in the media. Who is widely believed personally to have selected the head basketball coach. Who frequently travels with the basketball team to away games. Who stays at the team hotel. Who is on speed dial with the basketball coaches. Who regularly takes coaches and athletic administrators to dinner. That booster now is alleged to have paid several prominent prospective student-athletes to attend the university. If there is any evidence that payments were made, however flimsy, the booster s closeness to the program will make it more difficult for the university to show that he paid no players. If he is found to have paid the prospective student-athletes, moreover, his closeness to the program will negate any University claim that it should not be penalized too much for the violations because he was external to the University and it had no good way to track what he was doing. The booster s closeness to the program and at least perceived influence in important decisions also means that there is a high likelihood that the University will be found to have lacked institutional control. RULES COMPLIANCE ON CAMPUS AND THE DUTY TO REPORT

17 Page 17 Staff, student-athletes, boosters, trustees and regents not only are responsible to avoid committing NCAA violations, but they also must report suspected violations committed by others and also those they themselves may have committed. Ditto for the obligation to cooperate with NCAA enforcement staff conducting an investigation. A failure to report suspected violations or to cooperate in investigations can be a major NCAA violation for which serious penalties will be imposed, the more so the higher the on the food chain is the individual who fails to report or cooperate. INSTITUTIONAL CONTROL POST-PENN STATE: SOME OBSERVATIONS In the NCAA system independent of what happened at Penn State certain things were true, and remain true, with regard to maintaining institutional control. Penn State creates the risk that institutional control will relate to more than conduct violations, 30 but fundamentally it does not change the type things universities should do to maintain control of athletics. 1. The higher on the food chain the actor on a campus, the more that individual is considered as acting for the institution and, in turn, the more serious the consequences to the institution attendant on his rules-violative conduct. In addition, the higher on the food chain, the more risk that the individual s conduct will result in a finding of lack of institutional control and of the imposition of major penalties. 2. Living and working in a community means building and maintaining relationships of trust. Properly and completely doing an investigation means acting always with skepticism when any information surfaces. The two approaches ultimately are mutually exclusive. One cannot 30 I doubt this will be the case. First, it is difficult to imagine circumstances equivalent on all fours to Penn State ever again arising. Second, the criticism of Penn State action has grown since the action was taken as consequences of the action become more apparent.

18 Page 18 always be in an investigative mode, but one fails to investigate at one s risk. Two rules of thumb: a. the more credible the individual making a report or the information being reported, the more aggressive an investigation needs to be. b. The more serious the conduct reported or even suggested -- the more one needs to lean toward the investigative model. 3. People tend to want to believe the best of others. This is particularly true in work and educational communities. One consequence is that those with information want to be certain before reporting. Institutions need to emphasize the need to report suspicion rather than to wait for certainty. 4. People not trained in investigations often accept without question what they are told about a situation. Sometimes they fail to ask questions because they do not want to know the answers. But sometimes they fail to ask questions simply because they are constituted to believe what they are told. The Freeh Report had one take on what occurred at Penn State. If you accept what the three administrators say about their conduct, then note that they failed to heed the admonition set forth here. They did not ask questions. 5. People not trained in investigations often assess information in odd ways. I have encountered investigations in which Individual A reports conduct of Individual B. Individual B denies the conduct. The investigator does no additional follow up but simply decides the case cannot be proved either way. This is a very dangerous way to proceed. And it ignores matters of credibility of the individuals involved (including motive to lie, past history of reliability, etc.), relative credibility, internal consistency and believability of various renditions of a story, and the fact that corroborating evidence may exist if someone looks.

19 Page When people make reports, they tend to understate in an effort to be fair. Supervisors must understand this phenomenon and ask questions. They need to understand that an individual s choice to come forward, however mild the information provided, already is a red flag. Remember what Joe Paterno reported being told by Mike McQueary -- " Obviously, he was doing something with the youngster. It was a sexual nature. I'm not sure exactly what it was. I didn't push Mike to describe exactly what it was because he was very upset." The Freeh Report had one take on what occurred at Penn State. If you accept what the three administrators say about their conduct, then note that they failed to heed the admonition set forth here. 7. To do an investigation properly, an investigator must be aggressive in pursuing information and must also be savvy in assessing credibility. The Freeh Report had one take on what occurred at Penn State. If you accept what the three administrators say about their conduct, then note that they failed to heed the admonition set forth here. 8. All reports have to funnel to one source. If not, there may be several people with a part of the puzzle and no one in a position to assess the whole. (NOTE. If an NCAA infractions case ensues, the university likely will be held to have known the information in all the puzzle pieces even if no one individual held all of them.) An example. Assistant Coach A sees player A driving a very expensive car that she does not think he can afford. She tells her head coach. An athletic trainer sees player B also driving a very expensive car. He tells a different head coach. The associate athletic director for marketing sees Player C. He asks Player C and is told the car belongs to C s girlfriend. He does not report to anyone. Later it turns out that all three players (and others) were provided the cars by a prominent booster.

20 Page If an institution imposes a punishment or decides on a course of action to avoid violations, then it must be sure it follows through. In the Penn State case, the three administrators decided to bar Sandusky from Penn State facilities not open to the general public. And then they did not do it. 10. In addition, there was a 1988 incident involving Sandusky that was investigated by the county prosecutor. It is not clear who was told, although there was evidence that at least Vice President Schultz knew. But Sandusky was not prosecuted. Non-lawyers often confuse a decision not to prosecute with a decision that there was no evidence and that the person was innocent. This, of course, is not what the decision means. In the Penn State case, it is not clear that any of the three administrators, assuming they knew of the earlier incident, understood that. INVESTIGATIONS 1. An investigation must be adequate to the circumstances, to the potential risk in failure to pursue an investigation or in investigative choices during an investigation, and in the public perception of what was done. There always are two concerns. One is to get the investigation done right. The other is to be able to demonstrate it was done right. And that latter interest has two parts to show that the investigation was thorough and also to show that the investigation was fair. Always with an investigation you need to consider how what you did, or did not do, will be portrayed after the fact. You need to consider what you want to be able truthfully to say about what you did, and why. And then you need to be sure you build in at the front end those protections and controls that you want to be able to point to at the back end. Consider a couple of things here regarding Penn State. First, the time it took for Paterno, Curley, and Schultz to pursue the McQueary information. Paterno waited until after the weekend. Curley and Schultz waited several days to interview McQueary. Second, no one

21 Page 21 attempted to identify and talk to the child. At the back end, questions will be asked about how serious these individuals saw child sex abuse to be. Third, Sandusky was banned from using university facilities not open to the general public. But that ban was not enforced. Fourth, McQueary saw Sandusky in the football facility, and with children. He just stayed out of Sandusky s way. He never questioned anyone in authority regarding why. None of this shows concern for the potential child victim or supports a perception that Penn State administrators took McQueary s information as seriously as most would expect they would. In the current Miami situation, Donna Shalala, the university president, has been quoted as querying why Paul Dee, the former athletics director, was not interviewed. The failure to interview Dee may have resulted from a conclusion that he had nothing relevant to share. That conclusion may have been correct. Concern 1 the adequacy of the investigation may have been satisfied. Concern 2 the public perception of fairness and adequacy was not. 2. Document what is done in an investigation and decisions that are made. Taping interviews is most prudent. But at least write up summaries and run them by the individuals who provided the information so that they may confirm accuracy and make any needed corrections. Had this been done in the Penn State case, then there would be a record of exactly what McQueary told Curley and Schultz. 3. Retain files of what was done in investigations, files that are easily retrievable. Sometimes information in a case builds over time. An investigation adequate to the circumstances is done at Time A, and there is insufficient reason to conclude violations were committed. Additional information may surface at Time B that is also inconclusive. But the information from Times A and B, if combined, tell a violation tale. In the Penn State case there was an earlier, 1988, episode involving Sandusky. There was evidence that at least Schultz

22 Page 22 knew of the earlier case. Assuming that Schultz had forgotten about the earlier episode (and that Spanier, Curley and Paterno never knew), then, still, had the information been filed in a way that could have been retrieved a file named Sandusky, for example the information could have been combined with McQueary s evidence. 4. The person to whom all reports funnel must be trained to do investigations and must be skeptical. If you accept what the three Penn State administrators say about their conduct, then note that they failed to heed the admonition set forth here in that Schultz was not a trained investigator and, given what occurred, there is no evidence that he was skeptical. UNIVERSITY PROTOCOLS WHAT ATHLETICS DEPARTMENT STAFF MUST BE TOLD 1. If they suspect something might be a violation, they need to report it to the director of compliance or to the individual outside athletics with oversight responsibility for compliance and investigations (Faculty Athletic Representative -- FAR, General Counsel, etc.). It is not enough simply to report only when they are sure there is a violation. First, because pieces of information that are not independently conclusive may add up to a conclusive pattern. Puzzle pieces cannot be added to each other if they are not in the stack. Second, because there is an NCAA obligation to follow up on information to decide, and follow up cannot happen if there is no report. Example. A coach sees a player driving a very expensive car you don't think he could afford. The coach asks him and he tells the coach that it belongs to his girlfriend. Fine as far as it goes. But suppose he is lying. Suppose it was provided by a booster. Later there is a major infractions case. It is learned that the coach knew about the car and did not report the information to compliance. That, simply, is not a place a coach wants to be. [NOTE. This also illustrates the problem of taking an answer unskeptically and without follow up.] Third, because staff is not

23 Page 23 expert in making the call. The compliance director or FAR would not presume to tell a coach what play to call at the end of the half. The coach should not presume to know how to decide there is a violation or that he can proceed to investigate whether there is a violation. 2. Staff should report, not conduct their own inquiry. There are strategies in doing interviews or doing an investigation. Who is talked to first. What questions to ask. Someone launching questions without the expertise to do so may make it difficult to follow up and get the truth. Example. Someone with evidence may be alerted to destroy it. Or may alert someone else so that their stories will complement each other. 3. A violation is a violation once committed. It cannot be erased by stopping its recurrence. It cannot be handled by a seat-of-the-pants discipline in lieu of what NCAA processes might do. 4. So-called gray areas often involve the scope of regulatory rules phone calls, contacts, what constitutes mandatory practice. Violations here may not be big transgressions, but, as long as they are rules are in the NCAA manual, they must be complied with. Moreover, affirmatively ignoring a small rule by definition magnifies the violation. Gray areas also may be aspects of a major violation. No one associated with intercollegiate athletics credibly could claim not to know that it is an NCAA violation for a coach to pay a prospect to attend an institution. A coach might claim, however, that it is a gray area if the payment is made to a prospect who might not be eligible because he professionalized himself. No matter what the underlying rule, saying an area is gray is saying that one is not sure whether it is a violation. The obligation to be rules compliant means asking and confirming whether the conduct is permissible, not forging ahead with knowledge that there is a question. In other words, gray areas are stop signs, not a free pass lane.