By Mike Gilleran
The recent NCAA announcement regarding a reduction in penalties assessed against Penn State University represents a much-needed positive move by an organization currently beset with criticism.
In my view, the NCAA overstepped its enforcement parameters from the start in this matter. Traditionally, NCAA enforcement action has been based on alleged wrongdoing in at least one of three main areas:
Academic fraud,
Improper recruiting, or
Provision of extra benefits to enrolled student-athletes.
Of course, other matters involving improper competitive advantages (e.g., excessive out-of-season practices) are within the purview of NCAA enforcement, and the association has developed a meaningful drug-testing program, but the main courses on the NCAA enforcement menu are those three items listed above. Penn State’s situation involved none of these.
I certainly understand the desire for quick action and quick results. The NCAA enforcement process has long been criticized for the amount of time it typically takes to process a meaningful case. I served in the NCAA Enforcement Department from July of 1976 until January of 1984, and I am familiar with the frustration felt by members of the enforcement department as well as the institution(s) with which they work to process a case.
I realize that there are far more enforcement department staff members today than was the case back in my day (we typically had only six to eight investigators at any one time), but more people do not necessarily result in a quicker investigation. The number and severity of the allegations understandably should result in a correspondingly meticulous review by the involved institution. The NCAA cannot control each step of the review process, and it takes the time it takes to get it right.
Certainly, the criminal actions committed by a former Penn State assistant football coach, who has had his day in court, were horrific. Additional allegations of criminal conduct against other Penn State employees will be addressed through our judicial system, as they should be.
I don’t think the NCAA membership ever envisioned a day when the NCAA would insert itself into criminal matters in terms of fact-finding or imposing penalties prior to the completion of the criminal process (e.g., in point-shaving cases). I know when I worked as an NCAA investigator, we were clearly aware of our place in the enforcement world.
Likewise, I don’t think the NCAA membership ever envisioned a day when the NCAA would use a report prepared by an outside individual, no matter how distinguished that individual is, as the final word without all accused parties having a chance to present their sides of the story.
I do not object to the concept of the NCAA out-sourcing its enforcement efforts. In fact, I think there is merit to that idea, if presented to the membership and approved by the membership. I do think it is important for accused individuals in administrative proceedings, such as an NCAA enforcement case, to have a meaningful opportunity to contest allegations against them prior to the imposition of a penalty, no matter how impressive the reputation of the person responsible for the report.
My prediction? Common sense will prevail, and the postseason ban against Penn State football will be lifted within a year. The NCAA already has announced a gradual restoration of scholarships, and the postseason ban should be lifted.
I realize there is much about the NCAA enforcement process to criticize. When I worked at the NCAA, I often heard, “You only go after certain schools, you take forever to finish a case, then you punish innocent kids who weren’t at the school when the cheating was going on, then the coach who cheated runs off to take another job for more money. Can’t you do anything right?”
After you hear that for a while, there is a temptation to cut corners. I understand that. I used to tell myself, “If only we had subpoena power we’d really get after it!” That was about as logical as me telling myself, “If only I had been blessed with Michael Jordan’s talent and work ethic, I would have been Michael Jordan.” The NCAA is a voluntary association, not a state actor, and cannot avail itself of investigative and enforcement tools available to a state actor.
I think what we saw in the Penn State matter was an organization perhaps overly sensitive to criticism taking an opportunity to run all over a member institution that was already bloody and bruised in the court of public opinion for alleged crimes of a terrible nature. Significant penalties were imposed by the NCAA and accepted by Penn State, taking the outside report as gospel, all outside the regular NCAA enforcement process. I have absolutely no connection to Penn State, but if I did, I’m sure when the smoke settled after the imposition of NCAA penalties I’d have been asking myself, “What just happened here?”
I realize the Penn State case has been termed extraordinary by NCAA officials in the media on many occasions. But we do have a criminal process in place to handle criminal matters. Or, are we of the mind that the NCAA now should determine when a criminal matter is sufficiently heinous to warrant NCAA action in advance of the criminal process, even when the criminal acts alleged are not in the purview of NCAA legislation?
I think the NCAA overreached in this matter, to the ultimate detriment of both Penn State and the NCAA.
This article reflects the opinion of ISLE’s executive director, and not necessarily the opinions of anyone else connected with ISLE.
Mike Gilleran is the Executive Director of the Institute of Sports Law and Ethics at Santa Clara University. He served as the Commissioner of the West Coast Conference from 1984 to 2008. During that time he dealt with numerous ethical issues involving the welfare and conduct of student-athletes. Prior to his Commissioner duties, from 1976-1984, Mike was a member of the NCAA Enforcement Department, and dealt with ethical problems on a daily basis. Before that, he was a practicing attorney.
