Though the NCAA's president says all options will be considered, college sports' governing body may have few options when it comes to punishing Penn State's football program in the wake of its child sex abuse scandal, according to those who have defended and helped sanction NCAA rule breakers.
Former NCAA infractions committee chairmen and investigators condemn what happened at Penn State according to the report by former FBI director Louis Freeh — Penn State senior leaders concealing information that could have stopped Jerry Sandusky from sexually abusing children.
But they say one significant challenge looms for the NCAA: finding an NCAA rules violation.
"That's the problem — there isn't one," said David Swank, a former chair of the infractions committee that acts as judge and jury in NCAA investigations.
Because Penn State's transgressions might not involve violating traditional NCAA bylaws, leveling sanctions might require the NCAA enforcement staff to alter how it holds programs accountable and for what behavior. Mike Glazier, an attorney who represents schools during NCAA investigations, said: "If they (the NCAA) decide to get into it and apply their enforcement procedures, it would be unprecedented for them."NCAA President Mark Emmert said Monday in a PBS interview that he does not want to "take anything off the table" if the NCAA determines penalties are warranted against Penn State and that he has "never seen anything as egregious as this in terms of just overall conduct and behavior inside a university."
One possibility is for the NCAA to hit Penn State with lack of institutional control — a charge that historically warrants harsh penalties such as those recently levied against Ohio State and Southern Califiornia — but that dubious distinction has always been tied to other specific rules violations, said Tom Yeager, a former chair of the infractions committee.
Chuck Smrt, who was employed by the NCAA's enforcement staff for more than 17 years, said the NCAA in the past has addressed situations involving school officials concealing information related to potential NCAA violations. But Smrt, who now assists universities with compliance and investigations as president of The Compliance Group, did not recall the NCAA ever addressing situations involving school officials concealing information related to potential criminal activity.
"To have a penalty you have to have a violation. So what is the violation?" said Smrt, who has been present at more than 100 hearings before the infractions committee. "And to go down that path, you have to go down the path of university administrators did not properly review information concerning a potential criminal violation. I am not aware of the NCAA ever making that finding."
Penn State is preparing for some kind of NCAA action. Said school spokesman David La Torre, "We are in the process of engaging counsel."
School President Rodney Erickson told the Associated Press that it will respond to the NCAA's demand for information within days as the governing body decides whether the university should face penalties. In November, Emmert sent the school a list of questions he wanted answered that would examine the "exercise of institutional control."
No one disputes that the Penn State case represents an unprecedented set of circumstances involving egregious behavior that occurred over a long period and saw a football community at times permitted to operate by its own set of rules within the university.
Swank said there is "no question" there was unethical conduct by senior leaders who concealed information. But historically the NCAA's charge of unethical conduct has been tied to other specific rules violations, he said.
"It's horribly egregious conduct, and I don't think anybody would condone it," Swank said. "What are the agencies that are charged with taking care of this? That is your criminal court and your civil court. Not the NCAA. It just does not fit for the NCAA to step into this particular issue."
Yeager said reasonable people are "repulsed" by the findings at Penn State. But he said for the NCAA to cite the university with lack of institutional control would require a different application of the charge because this presents a "very different" set of circumstances.
"I'm not saying it's right or wrong," Yeager said. "It would be kind of a unique situation. Most situations that have shown widespread lack of control in an athletic situation there have been your share of NCAA violations attached, which made it a little easier to attach it to known NCAA rule violations."
The NCAA informed Penn State in November that that the NCAA would be examining the "exercise of institutional control" within the Penn State athletics department. And the NCAA said last week that it expects Penn State to answer a handful of critical questions related to its handling of the sex-abuse scandal.
A public debate has raged on Twitter and in the news media in recent weeks over whether Penn State should be the second major college football team to receive the so-called death penalty. In the late 1980s, Southern Methodist became the only major college football team ever forced to drop the sport for a period of time because of widespread NCAA violations.
Programs usually come under consideration for the death penalty if they are repeat violators, meaning that the respective universities had other major rules violations in the previous five years. But Smrt and Yeager said the death penalty is always an option when the infractions committee decides how to punish schools in cases that involve major violations.
"Unfortunately, someone (a school) could go from 0 to 60 (mph) with something so egregious, so it does not have to be a repeat violator — could be right out of the blocks," Yeager said.
"The understanding we always had was that the committee on infractions really has the liberty, and the list of penalties for major violations is really expansive, to be able to craft any type of penalty it believes appropriate."
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