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Why some college sports scandals don't draw NCAA penalties

Why some college sports scandals don't draw NCAA penalties
Posted at 6:37 AM, Aug 25, 2018

The question often comes up when a serious scandal hits college sports: Where is the NCAA? Why isn't the governing body of major college sports, you know, governing?

Ohio State suspended Urban Meyer for three games for mishandling allegations of domestic violence against one of his assistants, but it is doubtful the school, coach or athletic director — also suspended — will face penalties from the NCAA.

Meanwhile, 13 North Carolina football players were suspended by the NCAA earlier this month — some as many as four games — for selling sneakers given to them by the school.

What gives?

"It comes down to purpose and jurisdiction," said Gabe Feldman, director of the sports law program at Tulane University.

The NCAA's primary purpose, Feldman says, is fair competition between the lines and regulating recruiting and amateurism rules.

"It's a governing body over sporting competitions," he said.

Issues outside that — laws and university policies that touch students, employees and others at universities outside of sports — are mostly out of bounds to the NCAA. The 1,100 schools that come together under the NCAA to compete want areas already governed elsewhere to stay governed elsewhere.

Schools don't want the NCAA to expand into investigating to matters such as sexual assault or petty crime. And the NCAA itself couldn't take on more even if it wanted to, given its resources.

Almost nothing about the Meyer scandal clearly falls under NCAA rules. Ohio State's investigators say they told the NCAA that Meyer withheld reporting a potential recruiting violation when wide receivers coach Zach Smith took a high school coach to a strip club — a minor element in a 23-page summary of findings that more precisely examined whether Meyer broke any laws, the terms of his contract or university policies.

"With respect to the NCAA cracking down on either the coach or the institution itself, again it comes down to punishing consistent with their mission and also within their jurisdiction," Feldman said.

That strictly defined jurisdiction has made it difficult — if not impossible — for the NCAA to jump in on other high-profile scandals within college sports.

The NCAA has said it will investigate Michigan State and its role in overseeing Larry Nassar, the former gymnastics doctor who was sentenced to decades in prison after hundreds of girls and women said he sexually abused them under the guise of medical treatment while he worked at the university. But it's unclear what bylaw the NCAA could say Michigan State violated. Perhaps a catch-all, lack of institutional control.

NCAA officials have been looking from afar at Baylor, where outside investigators concluded that former football coach Art Briles and other school employees mishandled sexual assault claims, some against football players. The NCAA is using bylaws regulating extra benefits to athletes as its entry point, investigating whether some might have received special treatment by the athletic department to shield them from discipline.

Some critics believe the NCAA has put limits on its jurisdiction to purposefully avoid more serious issues.

"In terms of big principles, academic fraud, protecting student athletes, issues related to concussion ... It will not get involved in that because of fear of litigation. It wants to pass the liability down to its member institutions," said Donna Lopiano, president of consulting firm Sports Management Resources.

"It issues guidelines, but not rules, and it's afraid if it makes a rule then they're going to have to enforce it, and if they don't enforce it then they're going to be liable," Lopiano said. "That's why they don't do the right thing on the big and important things."

The NCAA is its members. University presidents have the final say over legislation and governance. The NCAA sets academic eligibility standards for athletes, for example. But each school still has the final say over admissions.

"The NCAA is trying to give the schools a level of autonomy that they both want and deserve given the wide variety of institutions that are members of the NCAA — secular schools, religiously affiliated schools, with significant geographical and cultural differences," said Oliver Luck, the former NCAA executive vice president for regulatory affairs.

The NCAA's policing role in many areas such as academic misconduct and drug testing is to ensure schools are following their own rules and treating athletes the same as the rest of student body.

"Otherwise, the NCAA would have to create a massive alternative adjudicative system to handle the substantive and procedural issues of alleged Title IX violations, sexual assault, sexual harassment, drug testing and the like," Luck said. "That's a big space."

The most high-profile example of the NCAA trying to expand its disciplinary powers showed how ill-equipped it is to do so.

The NCAA went outside its procedures and policies to punish Penn State football with massive sanctions for the Jerry Sandusky child sexual-abuse scandal. Those sanctions were challenged in court and eventually rolled back.

Feldman said the NCAA does not have the power or expertise to investigate matters of criminal or civil law, and fans as a result see disconnects between how different issues are judged.

"I understand that's a difficult thing for people to wrap their head around but there are limits to the NCAA's power. I think it's as simple as that," Feldman said.