NCAA may have violated its procedure in announcing Michigan State investigation
The NCAA does not normally announce letters of inquiry, a move that may have violated a bylaw
The NCAA departed from custom -- if not violated procedure -- in announcing an investigation against Michigan State, several sources indicated to CBS Sports.
Primarily, the NCAA seemingly deviated from a general principle in speaking to the New York Times about the beginning of an investigation. On Tuesday, the Times quoted an NCAA statement that read, "The N.C.A.A. has sent a letter of inquiry to Michigan State University regarding potential N.C.A.A. rules violations related to the assaults Larry Nassar perpetrated against girls and young women, including some student-athletes at Michigan State. We will have no further comment at this time."
"It's like FBI announcing it's going to investigate," said Sue Carter, Michigan State's former faculty athletic representative.
The NCAA typically does not announce letters of inquiry, the process by which a preliminary investigation begins into wrongdoing. In doing so at Michigan State, the NCAA seemingly violated its own bylaw 19.5.2 which pertains to public statements: "The enforcement staff shall not publicly confirm or deny the existence of an infractions case before complete resolution of the case …"
Schools under investigation are also under strict orders not to discuss cases. However, schools can release copies of the letter of inquiry on their own, which Michigan State did.
NCAA chief general counsel Donald Remy is also quoted by the Times saying, "The NCAA has requested information from Michigan State about any potential rules violations."
That surprised several sources contacted by CBS Sports who are familiar with the enforcement process. The NCAA did not respond to a request for comment.
"If the enforcement staff can't [comment on cases], why can the national office be able to do it?" said Jo Potuto, a former NCAA infractions committee member and constitutional law professor at Nebraska.
Those sources also questioned why the letter of inquiry wasn't sent by the NCAA enforcement division. The two-page letter outlining potential violations was sent by Oliver Luck, the NCAA's executive vice president, regulatory affairs and strategic partnerships. Luck is a member of the NCAA's leadership team, but he is not part of the enforcement division or infractions committee.
Also, at some point there is mention from the NCAA as to what enforcement official is running the investigation. This one does not. In the letter, Luck instructs Michigan State to send information to enforcement director Jon Duncan.
Duncan is the individual who typically sends out correspondence notifying schools of a pending investigation.
"It is clear they're approaching this with more caution than Penn State," said Tim Nevius, a former NCAA investigator now in private practice. "They aren't taking action. They're asking if there are any violations. It doesn't make sense this public announcement is coming from Oliver Luck and to be reported to Jon Duncan."
The NCAA was widely criticized in 2012 when it levied significant penalties against Penn State in the Sandusky scandal. Those penalties came outside traditional enforcement process.
Michigan State's at least resembles an enforcement procedure. If enough information is gathered, the school will be sent a notice of allegations which lays out specific violations.
In the existing letter, the NCAA cites Article 2.2 and Bylaw 18.104.22.168, which have to do with student-athlete welfare. The majority of major-college enforcement cases deal with competitive balance on the field and/or ethical issues.
"I would have expected them to try to fit this under institutional control or unethical conduct," Nevius said, "if they were going to try to justify in a situation like this and apply a penalty."
The same criticisms of NCAA overreach have surfaced with the Michigan State case. Critics have wondered why the NCAA is moving in -- once again -- to a criminal case that has been adjudicated.
Nassar has been sent away basically for life after pleading guilty to widespread sexual abuse of gymnasts. President Lou Anna Simon has resigned. Carter, a journalism professor, resigned her FAR position in response to Michigan State's handling of the Nassar situation.
"I don't think the NCAA is set up to investigate this type of thing," Potuto said. "Look, Simon has resigned. The state legislature is after it. It isn't as though the faculty hasn't spoken up or the students haven't spoken up …
"If this is indeed [going to be pursued], as member associations we need to talk about it, write some bylaws and have something to tag institutions with if the institution has responsibility."
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