NCAA will have to wait its turn to investigate Penn State scandal

McClatchy NewspapersDecember 4, 2011 

STATE COLLEGE, Pa. — Article 2.1 of the NCAA's constitution is a slippery, nebulous passage of college athletics' rulebook that holds schools accountable for all sorts of sins under the auspices of "institutional control."

And while precise language addressing a situation like Penn State University's child sex abuse scandal appears nowhere in the rulebook, the NCAA appears open to using Article 2.1 to mete out punishment — even though it appears no underlying NCAA rules were broken.

But any bloodlust felt by sickened critics and enraged fans should be tempered. If crippling sanctions are in store for Penn State, they won't come anytime soon.

Any NCAA investigation into the university's role in former assistant football coach Jerry Sandusky's alleged monstrous misdeeds — which would take up to a year in the best circumstances — will likely have to wait its turn.

Law enforcement, the U.S. Department of Education and former FBI Director Louis Freeh's university-sanctioned probe will surely all get first crack at the same evidence and witnesses the NCAA likely needs to conduct a full-fledged infractions inquiry.

"Penn State has four separate investigations going on at once," said Justin Sievert, a Florida-based attorney who specializes in sports law. "I'm sure the NCAA investigation is at the bottom of that list.

"Plus the NCAA has no subpoena power," added Sievert, who is not involved with the Penn State case. "Why would Sandusky or (fired head football coach Joe) Paterno even interview with the NCAA? Neither are going to be coaching ever again anyway."

Sandusky, who's charged with 40 counts of child sex abuse but free on bond, has granted very few interviews and is mainly speaking only with his attorney these days.

Same goes for former Penn State Vice President Gary Schultz and Athletic Director Tim Curley, both charged with perjury and failure to report a child rape that prosecutors say occurred on campus. Former President Graham Spanier stepped down on Nov. 9 as a result of the scandal and is currently on sabbatical from his teaching duties.

Still, the saga is perhaps the biggest sports scandal since the White Sox threw the World Series in 1919, and the NCAA — behind crusading President Mark Emmert — had little choice but to get involved.

On Nov. 17, Emmert sent Rodney Erickson, Spanier's successor, a letter notifying the university that the NCAA will "examine Penn State's exercise of institutional control over its intercollegiate athletics program, as well as the actions, and inactions, of relevant responsible personnel."

Emmert also demanded the university answer a series of detailed questions about the school's level of compliance to the NCAA constitution, most specifically pertaining to institutional control, by Dec. 16. An NCAA spokeswoman did not respond to an email Friday inquiring if Penn State had written Emmert back.

Based on Emmert's words and the bylaw's vague language, the NCAA might view institutional control a bit like obscenity — hard to define, but you know it when you see it.

The article's first section places the burden of rule compliance upon each school's president or chancellor, making them responsible for all aspects of the athletics program. NCAA rules deal mostly with defining amateur status and recruiting guidelines, not felonies.

But where the NCAA could find ground to act comes in Article 2.1.2:

"The institution's responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution."

Paterno, Sandusky and Curley all fit that description. What remains unclear is what exactly the NCAA plans to do about it.

"Based on President Emmert's statements, it's not clear that this will be sent to the infractions committee," said Josephine R. Potuto, law professor at the University of Nebraska and that school's faculty representative at the NCAA. "But if it is, this isn't just uncommon, it's unprecedented."

In a way, Penn State's situation is like the sordid Baylor basketball scandal of 2003.

The underlying crime — Baylor player Carlton Dotson murdering teammate Patrick Dennehy — was what caught the NCAA's attention. But the association's ensuing investigation is what uncovered major violations at the school.

Baylor's misdeeds included making improper payments to Dennehy, covering up failed drug tests by players, and most notably, an audio tape of then-coach Dave Bliss instructing assistant coaches to make up lies to muddy Dennehy's reputation after his death.

Still, it took the NCAA two full years to decide on its punishment: Loss of games for one season and probation through 2010.

"They're very different situations, obviously, but they both qualify as crises," said Larry Brumley, who served as Baylor's lead spokesman during the ordeal. "You can't stonewall. You have to face up to the facts and you have to acknowledge where there have been failures.

"And you have to communicate what steps you're taking to address those failures moving forward," he said.

(Beasley reports for The Miami Herald.)

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McClatchy Newspapers 2011

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