The National Collegiate Athletic Association (NCAA) and Pennsylvania State University (Penn State) reached a settlement last week resolving a pending lawsuit on the legality of the 2012 NCAA consent decree. The settlement, among other items, restores 112 wins in football that were vacated by NCAA president Mark Emmert during the Jerry Sandusky child molestation scandal; the settlement restores the late Joe Paterno as the winningest major college football coach in history. Details on the settlement, including statements from the NCAA and other parties, can be found here (ESPN.com) and here (Washington Post).
[Note: Buckner 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.]
As Buckner noted on numerous occasions in this blog, the NCAA penalties in the Sandusky scandal, no matter how noble and justified to address the egregious behavior in the Penn State case, were not proper under NCAA legislation and protocol. As legal counsel for colleges and universities, Buckner remains concerned the NCAA’s actions created a “slippery slope”. In order to avoid future legal implications should a similar criminal scandal surface at a university, the NCAA should do the following:
- The membership should decide (once and for all) whether egregious violations of criminal law involving student-athletes, coaches, administrators or other individuals with athletically-related duties should be a violation of NCAA legislation. As Buckner noted in a prior blog post, during “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.” Even with last week’s settlement, the NCAA membership does not know what behavior or conduct will trigger the NCAA president’s discretionary authority to issue punitive sanctions for criminal behavior. The membership deserves proper notice on this issue.
- If the membership believes clearly-defined criminal acts deserve NCAA scrutiny, then a legally-sufficient process should be developed to investigate and adjudicate the alleged violations. For example, allegations could be investigated by the enforcement staff and processed by the Committee on Infractions or the NCAA could appoint special counsel and a panel to handle the case. Regardless of which parties investigate and process the case, clear and consistent procedures and standards should be articulated by the NCAA.
Unfortunately, a major criminal scandal at an NCAA member institution will make front-page news in the future. The NCAA should not wait—the Association should use this time to determine whether it wants to be a criminal prosecutor or to leave it to state and federal courts.