Analyzing Potential NCAA Infractions

Baylor has hired a New York law firm to report potential NCAA violations stemming from the facts uncovered by Pepper Hamilton.

Some are calling for Baylor to be punished like Penn State was, while others are calling for even tougher action. Still others caution such an approach is problematic. This article provides an explanation of how the NCAA could punish Baylor, and an explanation of what Baylor could argue under each section. The goal is to provide an explanation of relevant NCAA bylaws and how they could be used to punish Baylor, and how those bylaws may not be applicable. The goal of this piece is not to lay out what the NCAA should or shouldn't do.

The most important consideration in determining if Baylor faces NCAA penalties may be how the NCAA views its decision in the Penn State case. In that case, the NCAA and Penn State agreed to impose: a four year bowl ban, a removal of wins from 1998-2011, and a fine of $60 million to help victims of sexual violence. Penn State's players were also allowed to transfer without having to sit out a season. After a long legal battle over those sanctions, the NCAA agreed to refine the penalties. Penn State's bowl ban was reduced to two years and its wins were restored.

As will be laid out below, the NCAA's ability to punish Penn State relied on a very broad interpretation of several bylaws. Baylor's argument for not facing sanctions would focus on narrowing the rules application and arguing Baylor should not be liable for actions from its former coach.

Lack of Institutional Control

Article 2.1 lists the requirements for institutional 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.

At the end of July 2012, the NCAA announced Penn State's penalties and cited a lack of "institutional integrity." In Penn State's case, the NCAA claimed the failure of Joe Paterno and the administration's inaction, "allowed Sandusky's serial child sexual abuse."

The NCAA noted Penn State's failures would normally, "not be actionable." However, the NCAA found at Penn State it was, "the fear of or deference to the omnipotent football program that enabled a sexual predator to attract and abuse his victims." The NCAA went on to state, "the imbalance of power and its result are antithetical to the model of intercollegiate athletics embedded in higher education."

The Pepper Hamilton release includes language similar to the NCAA's description of Penn State. The report noted, "Leadership challenges and communications issues hindered enforcement of rules and policies, and created a cultural perception that football was above the rules. "

Based on the language from the Penn State case, the NCAA could say the precedent justifies punishing Baylor for a lack of institutional control. The issue is whether the NCAA will want to adhere to that precedent. Stewart Mandel has a superb run down of why the NCAA may be hesitant to use institutional control to punish Baylor. One of the big issues is that Baylor, or someone associated with Baylor(there are different standing issue for bringing suit as someone associated with Baylor, a private institution), could fight any sanction under the institutional control framework. If that happens, the NCAA would have to deal with huge legal fees, which may deter the NCAA from penalizing Baylor.

The NCAA could have huge legal fees to uphold sanctions based on "institutional control," because institutional control may not be a stand alone section about "institutional integrity." The NCAA rules say institutional control is for, "compliance with the rules and regulations of the Association." Under a plain reading, or a look at simply the text of the rules, there's a strong claim lack of institutional control is not a stand alone section. Under this theory, the NCAA has to show the institution violated some other section to show a lack of institutional control because institutional control requires "compliance with the rules and regulations." If an institution does not violate another section, then the institution has not violated the "rules and regulations of the association."

"Institutional integrity," does not appear in the 406 pages of the NCAA rules. Yet, the NCAA lumped the institutional control requirements together to form an institutional integrity requirement. Based on the precedent of the Penn State case, the NCAA could claim Baylor violated institutional integrity.

However, if Baylor violates any other rules and regulations of the NCAA bylaws, then its irrelevant if institutional control equals institutional integrity. Under the more text focused reading that institutional control is a stand alone section, Baylor could still be culpable if it did not show it "complied with the rules and regulations of the institution." There are three potential violations that stick out: ethical conduct, individual integrity, and extra benefits.

Ethical Conduct

Article 10.1 requires:

Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member (e.g., coach, professor, tutor, teaching assistant, student manager, student trainer) may include, but is not limited to, the following:

Article 2.4 provides, in pertinent part:

For intercollegiate athletics to promote the character development of participants, to enhance the integrity of higher education and to promote civility in society, student-athletes, coaches, and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility. These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program.

In the Penn State case, the NCAA claimed because the list in 10.1 is non-exhaustive(it says not limited to) the focus should be its purpose: an environment of honesty. The NCAA added that article 2.4 requires civility, which supports the notion that the conduct at Penn State violated ethical conduct. The NCAA found it particularly troubling the football team, "did not fully participate in, or opted out, of some University programs, including Clery Act compliance."

Baylor would have a huge issue if the NCAA continues to view article 10.1 and article 2.4 as punishing off the field criminal activity from players or coaches. Pepper Hamilton notes, "some football coaches and staff abdicated responsibilities under Title IX and Clery; to student welfare; to the health and safety of complainants; and to Baylor’s institutional values. "

Baylor would argue the NCAA limitations do not justify punishing an institution for what happened off the field. The categories listed in 10.1 are non-exhaustive, but none of those categories deal with criminal investigations. They outline penalties for academic misconduct, performance enhancing drugs, and failing to cooperate with the NCAA. Baylor's actions did not constitute anything enumerated, and the list does not seem to punish a category like what happened at Baylor.

Article 2.4 also creates a difficult precedent. It's possible the NCAA will sanction Baylor and say the football coaches failed to respect and deal honestly with what happened. However, article 2.4 is also a broad article to use to punish an institution. Of course the NCAA wants honesty both on and off the field, but the rule is written so broadly, the NCAA may decide not drawing any line on what violates 2.4 is better than finding what happened at Baylor violates 2.4.

In my mind, if Baylor faces NCAA penalties section 2.4 is going to be listed. The NCAA would probably point to Pepper Hamilton's finding that, " football coaches or staff met directly with a complainant and/or a parent of a complainant and did not report the misconduct. " The NCAA would claim the coaches failed to deal honestly with what happened here, just as Penn State failed to deal honestly with what happened there.

Individual Integrity

Bylaw 19.01.2 adds:

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

This is another avenue for sanctions. The requirement says, "they must do more than avoid improper conduct." The NCAA would probably highlight Pepper Hamilton's finding that, "In some cases, football coaches and staff had inappropriate involvement in disciplinary and criminal matters or engaged in improper conduct." Because the coaches engaged in improper conduct, they certainly fell below the bar of doing more than avoiding improper conduct.

Baylor could argue this statute is overly broad when it deals with exemplary conduct, however, my guess is that Baylor would focus on liability. Baylor would argue it should not be punished when it has changed the culture and fired a coach who completely turned around the program and was one of the best at winning. Baylor would probably argue that has already sent the signal these actions are not okay and that exemplary conduct is required.

Extra Benefits

The NCAA defines extra benefit as:

16.02.3 Extra Benefit. An extra benefit is any special arrangement by an institutional employee or a representative of the institution’s athletics interests to provide a student-athlete or the student-athlete’s relative or friend a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives or friends or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability. (Revised: 1/10/91)

Extra benefits did not apply to the Penn State scandal. Here, the claim would be that some Baylor football players enjoyed an extra benefit because of the process Pepper Hamilton described. "Football coaches and staff took affirmative steps to maintain internal control over discipline of players and to actively divert cases from the student conduct or criminal processes. " The theory is that someone outside of the football team would not be able to have their case diverted, and someone on the football team potentially would. Under this reading of the rule, this would be an improper benefit.

Stewart Mandel's story is a strong read on everything related to NCAA compliance issues, but it lists the problem with the extra benefits theory: most mentions of benefits are related to a monetary exchange. This section does not seem to be about any advantage, it seems to be about what so much of the NCAA rules deal with: the amateur status of student athletes.

What this all means?

The bottom line is that the NCAA's decision may come down to how it feels about its involvement with Penn State. Mark Emert, the NCAA President said, "We don't ever want to have to repeat this exercise." Mandel calls what happened, "too serious to fall under the NCAA purview."

The NCAA may decide it wants to make an example of what happened at Baylor. The NCAA could also decide it does not want to penalize the school for its failure. How the NCAA reacts it always difficult. But with such broad rules, there are a variety of ways the NCAA could cite to punish Baylor, as it did just four years ago against Penn State.