On July 23, 2012, the National Collegiate Athletic Association (NCAA) announced sanctions against Pennsylvania State University (Penn State) in response to the sexual-abuse scandal involving former Penn State football coach Jerry Sandusky. The sanctions include: (a) a $60 million fine; (b) a four-year postseason ban; (c) a four-year reduction of grants-in-aid; (d) five years of probation; and (e) vacation of wins in the football program since 1998. Further, the NCAA announced a blanket waiver of transfer rules and grant-in-aid retention for any entering or returning football student-athlete, as well as reserved “the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved”.
[Note: The Michael L. Buckner Law Firm extends its sympathy to the victims in this scandal (who should always be at the forefront of any conversation in this case). The firm believes in the rule of law and, as a result, supports the sanctioning of any organization or individual who commits a crime or engages in misconduct through an established process and by an entity that possesses proper jurisdiction.]
The NCAA’s actions, no matter how noble and justified to address the egregious behavior in the Penn State case, have charted an unprecedented course of action and created a “slippery slope” for future incidents. This statement will provide three areas of concern.
First, the NCAA cited its Executive Committee had the authority to act “on behalf of the entire Association and implements policies to resolve core issues, pursuant to its authority under the NCAA constitution and Bylaw 4.1.2(e)”. This constitutional provision states “the Executive Committee shall. . . Act on behalf of the Association by adopting and implementing policies to resolve core issues and other Association-wide matters”. However, Proposal 2007-12, which amended Constitution 4.1.2-(e) by adding the phrase “adopting and implementing policies” noted “the Executive Committee has authority to act by adopting and implementing policies. … Neither does the amendment expand the Executive Committee’s authority or power.” However, the Michael L. Buckner Law Firm’s review of the Executive Committee’s motion did not adopt and implement a policy to resolve core issues, but directed NCAA president Mark Emmert to address one specific incident (i.e., “to enter into a consent decree” with Penn State that “contains sanctions and corrective measures”). If the Executive Committee properly exercised its authority under Constitution 4.1.2-(e), then a more comprehensive objective policy affecting Penn State and other future instances involving major felonies at other NCAA member institutions would have been developed and passed by the body.
Second, the Executive Committee’s action failed to establish an objective standard to determine when the NCAA president can circumvent the established enforcement process. In the past 20 years, employees and student-athletes have engaged in, been convicted of, or charged with serious criminal misconduct. However, the NCAA did not intercede in such matters and, in some instances, deferred to the expert judgments of judicial proceedings and government investigations. After today’s decision, the NCAA membership does not know what behavior or conduct will trigger the newly-awarded discretionary authority of the NCAA president to issue punitive sanctions.
Third, the conduct of Penn State and its employees, no matter how egregious, is not a violation of an existing NCAA rule. The NCAA has never interpreted, or issued sanctions under, the rules it cited to address only criminal violations (or the cover-up of criminal violations). In fact, until today, the activities described in the report by former FBI director Louis J. Freeh are not addressed in the NCAA Division I Manual.
As legal counsel for colleges and universities before NCAA committees, we are extremely concerned about the process the NCAA utilized to issue its sanctions. We urge the NCAA to comply with its existing processes and procedures in future scandals involving alleged criminal misconduct. For example, after a review of the Freeh report in the Penn State sexual-abuse case, we conclude the issues the institution would be best left in the expert hands of the criminal and civil courts, the federal Departments of Justice and Education, the Pennsylvania General Assembly and the relevant accrediting agencies.