STATE COLLEGE — Article 2.1 of the NCAA’s constitution is a slippery, nebulous passage of college athletics’ rule book 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’s child sex abuse scandal appears nowhere in the rule book, 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 any time soon.
Any NCAA investigation into the university’s role in Jerry Sandusky’s alleged misdeeds — which would take up to a year in the best circumstances — will likely have to wait its turn.
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Law enforcement, the U.S. Department of Education and former FBI director Louis Freeh’s university- sanctioned investigation 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 (former coach Joe) Paterno even interview with the NCAA? Nether are going to be coaching ever again anyway.”
Sandusky, the former assistant coach charged with 40 counts of child sex abuse but free on bail, is saying little publicly these days.
Same goes for former Vice President Gary Schultz and Athletic Director Tim Curley, both charged with perjury and failure to report a child rape prosecutors said 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 involving a football program with a once pristine reputation and an iconic head coach has drawn interest from across the globe, and the NCAA — behind crusading President Mark Emmert — had little choice but get involved.
On Nov. 17, Emmert sent new university President Rod Erickson 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 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 yet responded.
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 him or her 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 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 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.”