Now we know what it takes for the NCAA to test the limit of its own rules, make a bold P.R. play and absolutely do the right thing all at once.
An alleged serial child molester.
Yes, the cephalopod that is the Penn State scandal just grew another tentacle. The NCAA went where it had never gone before Friday when association president Mark Emmert sent a forcefully worded letter to Penn State interim president Rodney Erickson. In it, Emmert basically tossed away decades of precedent in alerting Erickson that Penn State was under investigation.
Except the word was never used. A formal notice of allegations was never submitted. Neither was a letter of inquiry. Those two things are usually needed to notify a school that it's in deep NCAA doo-doo. This time, Emmert merely said, obtusely, that the NCAA will "examine" the school's "exercise of institutional control" over the athletic department.
There goes protocol. Here comes the new NCAA.
"You are correct," said Nebraska constitutional law professor Jo Potuto, who read the defining letter with interest on Friday. "The NCAA national office is moving in a different direction and more aggressive direction."
Potuto is best known nationally for serving the maximum nine years on the NCAA infractions committee. There may be no other person more familiar with the enforcement process. Her bulldog approach to rule breakers during hearings has been both admired and reviled. She says it's a clear indicator that the NCAA is willing to look into "behavioral issues" as part of the infractions process.
Do we want the nation's most powerful amateur athletic entity going to a metaphysical place where it examines what is going on in one's mind? For example, Joe Paterno and Mike McQueary broke no laws. But Paterno was fired and McQueary is on administrative leave because they knew or should have known about Jerry Sandusky's alleged acts.
Emmert is now saying there is language in the NCAA manual to cover that type of conduct.
"Unprecedented," Dave Ridpath called it. Ridpath is a professor at Ohio University who is nationally known as an academic reformer in NCAA circles. He is just as much a bulldog as Potuto but in a different way. Ridpath's dream of becoming an athletic director was ended when he sued Marshall University, where he was working as a compliance officer.
He eventually won a judgment from the school after claiming he was unfairly dismissed during an NCAA investigation into Marshall football.
"Unprecedented and interesting that Emmert sent the letter himself," Ridpath texted on Friday. "I find it vague and interesting that they [NCAA] are jumping in this early with a more 'holistic' approach and a need to do something to at least give the appearance of effective oversight."
|NCAA President Mark Emmert is going against protocol with Penn State. (AP)|
The base outrage remains that an alleged sexual predator was allowed to run free. That's a right and just emotion. But the courts will decide. The NCAA seems to be piggybacking on legal issues with concepts meant to penalize the likes of Ohio State football. It's one thing to debate whether the institutional control applies to a school winning a Big Ten title with ineligible athletes. It's another looking into the hearts and minds of Penn State athletic department employees to determine whether they knew of Sandusky's alleged horrible acts.
There is no doubt that the NCAA has an opening to prosecute Penn State. The enforcement department could have announced that the school was being investigated for giving extra benefits. It wouldn't have been hard at all to classify Sandusky the coach before his retirement and a booster after his retirement. If any of his alleged victims were given gifts, bowl trips or special access –- as has been alleged –- those could be interpreted as extra benefits. Youths are considered recruitable athletes after they graduate from the eighth grade. In certain cases, even younger.
Yes, alleged child molestation victims could be classified as potential recruits. That's all the NCAA needed, but Emmert went to a new and different place. One that made him seem almost despotic.
The letter mentions that Sandusky's alleged acts went back "two decades." Two things strange about that: All reports say the alleged acts go back only to 1994, 17 years ago. And for the NCAA to officially investigate that far back it would have to rescind its statute of limitations on violations (four years). While that's certainly within the rules, it is hardly ever done. The intimation is that there are plenty of other recent possible violations.
The concept of constitutional control essentially demands that an athletic department abide by NCAA rules. Emmert quoted the NCAA constitution that says, "... it is the responsibility of each [school] to control its intercollegiate athletics program in compliance with the rules." Also, "the president or chancellor is responsible for the administration of all aspects of the athletics program ..."
Former Penn State president Graham Spanier, one of the most respected men at his position in the country, was fired last week. On Friday, Emmert weighed in with terms like "unethical conduct", "fairness", "civility" "honesty" and "dignity" in telling Penn State it was not quite under investigation but it could be.
To my knowledge, that kind of letter with those kinds of terms has never been written to a member school, not publicly and certainly not by the NCAA CEO.
"In the past the NCAA has looked at institutional control as it relates to specific substantive bylaws," Potuto said. "Although president Emmert certainly cites several bylaws that are in the general area of ethical [areas] those bylaws in the past have related to substantive athletically related violations."
That's what was so surprising. Emmert and the membership know that he has no real power. The NCAA president is a consensus builder. His main weapon is the bully pulpit.
In that respect, all credit should be given to Emmert for forcing through the recent wide-reaching reforms so quickly. But by sending the letter, Emmert seems to reach ever so slightly beyond his powers. If the NCAA is investigating Penn State, then an official letter of inquiry should be followed by an official notice of allegations. That letter usually comes from enforcement chief Julie Roe Lach.
Emmert essentially went very public, very quickly to project an image that the association was in control. That letter came a couple of days after the president just as publicly said the NCAA would wait until the legal process played out before getting involved. So much for that.
There may be pressure on the NCAA from outside sources. Congress? Don't forget the association is, at its heart, a tax exempt, non-profit institution. The last couple of years have been among the most scandalous in college athletic history. The NCAA also faces some monster legal challenges in the near future with lawsuits from various entities, if they ever get to trial.
If could have been a P.R. play. The NCAA has fundamentally changed the way it does business since Emmert took office in October 2010. The association is more open, more accessible, more user-friendly. It has projected more of an image of fairness. It has not been shy about reaching out to correct the media on issues. It called out Cecil Newton in a press release for attempting to sell his son's services to Mississippi State.
A couple of weeks ago, Emmert mingled with media and dignitaries showing up at two football games in one Saturday –- flying from Texas early in the day to be at LSU-Alabama at night. He showed up at Madison Square Garden this week to congratulate Mike Krzyzewski on his record 903rd win.
In that sense, the man gets it. If this letter was released for no other reason than to flex NCAA muscle, it worked. Folks have been asking since the Sandusky scandal broke if there was anything the NCAA could do. As mentioned, for decades the association stayed out of legal matters. At most, enforcement stood on the sidelines and gathered information that had to be submitted under oath. There was already enough of a Big Brother perception for the NCAA to dive in further.
This may have been too much for the public to bear. This case is about basic human dignity. Not only was Penn State's reputation at stake, so was the NCAA's.
In the end, the association may do nothing. Surely, there will be enough there to find some minor NCAA violations while scouring Penn State athletics, but that's not nearly the point. There is a basic dichotomy at work here. Penn State, one of two national champions never to be found guilty of major football infractions, is also the site of the worst scandal in NCAA history.
For now, let's not forget that all we have at this point are allegations. As lurid as his alleged conduct may be, Sandusky will be tried to determine his guilt or innocence. The same goes for former AD Tim Curley, and finance officer Gary Schultz have been accused of perjury in the case.
In short, then, what was the NCAA doing on Friday?
In May, the NCAA invited selected media members to participate in the process firsthand in a mock enforcement case. It was elaborate, precise, involved. We were led diligently through the incredibly complicated process of investigating a case from start to finish.
For part of the presentation, Emmert stood at the back of the room. At no time did anyone in the mock enforcement case mention the proceedings could be kick-started by a very powerful letter from a suddenly very powerful NCAA president.