Today the NCAA imposed on Penn State what are being described as unprecedented sanctions. These penalties are unusual for reasons other than their severity because they are far afield from the NCAA’s usual jurisdiction. Normally, loss of post-season bowl appearances, revenues, and scholarships are linked to violations of NCAA rules that establish a common baseline for interscholastic competition. That is, sanctions are intended to both punish and deter efforts of any member school to secure an unfair competitive advantage.
That does not appear to be the case here. Nothing about the Penn State pederasty scandal concerns the pursuit of unfair competitive advantages on the football field. The standards of ethical conduct that Penn State officials violated were established to support other NCAA regulations intended to prevent unfair competitive advantage.
The NCAA is instead exercising the monopoly power it enjoys to regulate interscholastic athletics for purposes heretofore reserved to governments, and then only after conviction in civil or criminal trial in accordance with due process. Penn State has no recourse because it has waived its due process rights and agreed to these penalties, which are recorded in a document labeled a “consent decree.”
It is unusual, to say the least, for a nonprofit organization to exercise quasi-judicial powers of this type when they do not concern activities related to the nonprofit organization’s stated mission.
The “consent decree” states that the report delivered to the Penn State Trustees that university officials, including the president, violated certain provisions of the NCAA’s Constitution and Bylaws. Both documents are written in ways that permit a wide range of interpretations. They include neither “design standards” (“if you do exactly X, you are in compliance”) nor “performance” standards (“if you achieve Y, you are in compliance”). Instead, compliance is adjudicated ad hoc by the NCAA Committee on Infractions (Bylaw 19.1) consisting of “10 members, seven of whom shall be at present or previously on the staff of an active member institution or member conference of the Association, not more than three and no less than two of whom shall be from the general public and shall not be associated with a collegiate institution, conference, or professional or similar sports organization, or represent coaches or athletes in any capacity.” Decisions of the Committee on Infractions are reviewable by the Infractions Appeals Committee (Bylaw 19.2). The general formula is to require each institution to submit to the judgment of its peers.
In this case, the NCAA bypassed these Committees. Instead, the consent decree was negotiated by the executive director under authority delegated to him by the NCAA Executive Committee. Interestingly, Article 4.1.2 of the Constitution does not appear to grant the Executive Committee this authority. Thus, the NCAA appears to be sanctioning Penn State for unethical conduct in a manner that is itself unethical.
This practice is similar to the actions of the Department of Justice when it secures consent decrees to resolve regulatory enforcement actions that, if actually brought to trial, DOJ might lose either on the merits or on the ground that its actions exceed its statutory authority. By signing a consent decree, the subject of an enforcement action agrees not to challenge the legality of the Department’s exercise of power. In return, the subject gains certainty about costs.
The same analysis holds for Penn State and the NCAA.
Article 2.1.1 Responsibility for Control. [*] It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures. (Revised: 3/8/06)
Article 2.1.2 Scope of Responsibility. [*] 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.
6.01.1 Institutional Control. The control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself and by the conference(s), if any, of which it is a member. Administrative control or faculty control, or a combination of the two, shall constitute institutional control.
Article 6.4 RESPONSIBILITY FOR ACTIONS OF OUTSIDE ENTITIES
6.4.1 Independent Agencies or Organizations. An institution’s “responsibility” for the conduct of its intercollegiate athletics program shall include responsibility for the acts of an independent agency, corporate entity (e.g., apparel or equipment manufacturer) or other organization when a member of the institution’s executive or athletics administration, or an athletics department staff member, has knowledge that such agency, corporate entity or other organization is promoting the institution’s intercollegiate athletics program. (Revised: 2/16/00)
6.4.2 Representatives of Athletics Interests. An institution’s “responsibility” for the conduct of its intercollegiate athletics program shall include responsibility for the acts of individuals, a corporate entity (e.g., apparel or equipment manufacturer) or other organization when a member of the institution’s executive or athletics administration or an athletics department staff member has knowledge or should have knowledge that such an individual, corporate entity or other organization: (Revised: 2/16/00)
(a) Has participated in or is a member of an agency or organization as described in Constitution 6.4.1;
(b) Has made financial contributions to the athletics department or to an athletics booster organization of that institution;
(c) Has been requested by the athletics department staff to assist in the recruitment of prospective studentathletes or is assisting in the recruitment of prospective student-athletes;
(d) Has assisted or is assisting in providing benefits to enrolled student-athletes; or
(e) Is otherwise involved in promoting the institution’s athletics program.
188.8.131.52 Agreement to Provide Benefit or Privilege. Any agreement between an institution (or any organization that promotes, assists or augments in any way the athletics interests of the member institution, including those identified per Constitution 6.4.1) and an individual who, for any consideration, is or may be entitled under the terms of the agreement to any benefit or privilege relating to the institution’s athletics program, shall contain a specific clause providing that any such benefit or privilege may be withheld if the individual has engaged in conduct that is determined to be a violation of NCAA legislation. The clause shall provide for the withholding of the benefit or privilege from a party to the agreement and any other person who may be entitled to a benefit or privilege under the terms of the agreement. (Adopted: 1/10/95)
184.108.40.206 Retention of Identity as “Representative.”Any individual participating in the activities set forth in Constitution 6.4.2 shall be considered a “representative of the institution’s athletics interests,” and once so identified as a representative, it is presumed the person retains that identity.
10.01.1 Honesty and Sportsmanship. Individuals employed by (or associated with) a member institution to administer, conduct or coach intercollegiate athletics and all participating student-athletes shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, shall represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports.
10.1 UNETHICAL CONDUCT
Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member, which includes any individual who performs work for the institution or the athletics department even if he or she does not receive compensation for such work, may include, but is not limited to, the following: (Revised: 1/10/90, 1/9/96, 2/22/01, 10/5/10)
(a) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution;
(b) Knowing involvement in arranging for fraudulent academic credit or false transcripts for a prospective or an enrolled student-athlete;
(c) Knowing involvement in offering or providing a prospective or an enrolled student-athlete an improper inducement or extra benefit or improper financial aid; (Revised: 1/9/96)
(d) Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation; (Revised: 1/16/10)
(e) Receipt of benefits by an institutional staff member for facilitating or arranging a meeting between a student athlete and an agent, financial advisor or a representative of an agent or advisor (e.g., “runner”); (Adopted: 1/9/96, Revised: 8/4/05)
(f ) Knowing involvement in providing a banned substance or impermissible supplement to student-athletes, or knowingly providing medications to student-athletes contrary to medical licensure, commonly accepted standards of care in sports medicine practice, or state and federal law. This provision shall not apply to banned substances for which the student-athlete has received a medical exception per Bylaw 220.127.116.11; however, the substance must be provided in accordance with medical licensure, commonly accepted standards of care and state or federal law; (Adopted: 8/4/05, Revised: 5/6/08)
(g) Failure to provide complete and accurate information to the NCAA, the NCAA Eligibility Center or an institution’s admissions office regarding an individual’s academic record (e.g., schools attended, completion of coursework, grades and test scores); (Adopted: 4/27/06, Revised: 10/23/07)
(h) Fraudulence or misconduct in connection with entrance or placement examinations; (Adopted: 4/27/06)
11.1 CONDUCT OF ATHLETICS PERSONNEL
11.1.1 Honesty and Sportsmanship. Individuals employed by or associated with a member institution to administer, conduct or coach intercollegiate athletics shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports. (See Bylaw 10 for more specific ethical-conduct standards.)
19.01.2 GENERAL PRINCIPLES: Exemplary Conduct. Individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.