Saturday, November 19, 2011

NCAA abandons policy and precedent with letter to Penn State

image NCAA investigations into the actions of member schools have always followed the same path. But in an unprecedented scandal, league President Mark Emmert decided that unprecedented steps need to be taken.

Long-standing NCAA policy dictates the procedure. Credible allegations are received and reviewed. Information is collected. A Notice of Inquiry is transmitted from the VP of Enforcement to the school president. The NCAA staff conducts its investigation and if it finds violations of applicable by-laws, transmits a Notice of Allegations. The school appears before the Committee on Infractions and later hears what penance it must suffer as a result of its transgressions.

In the Penn State case, policy and procedure are gone. In his three-page letter to interim President Rodney Erickson, Emmert sternly warns the school that the league’s bedrock principles of ethical conduct, honesty, dignity are at stake as a result of potential inaction surrounding the Jerry Sandusky child abuse scandal.

The Emmert letter is unprecedented on two different levels. First is the fact that the letter informing Penn State of the pending probe comes from the NCAA president himself. In the modern era of NCAA investigations, never before has the president of the league written such a missive as this.  The official communication from the NCAA notifying a member school of a pending investigation has always come from the Vice President for Enforcement, the office currently held by Julie Roe Lach.

Also unprecedented is the fact that the NCAA has publicized the letter and publicly announced that it plans to launch an investigation. Having the letter originate from the office of the President is a big deal. Publicizing the matter is even bigger. The NCAA has vigorously guarded information regarding even the existence of investigations, steadfastly refusing to even acknowledge investigations that everyone knows are in progress.

So why make this one public? Emmert has said in interviews that this matter is not a traditional “enforcement” investigation and that ordinary rules aren’t in play here. He’s said that since the league doesn’t plan to send investigators to campus to interview coaches, officials or players, the policy governing enforcement procedure don’t fit in this case. But Emmert nonetheless cited specific by-laws that may have been violated, and violations of those by-laws in previous cases have brought harsh sanctions at the end of enforcement investigations.

There’s no doubt that the Sandusky scandal at Penn State is the worst, most-sickening stain on college athletics. Nothing even comes close. In an unprecedented case, Emmert is taking unprecedented steps. Some may cynically call it a PR ploy; accusing the league of trying to show that it is out in front of the story. There might be a mote of truth to that, but it’s much more likely that Emmert is finally getting the NCAA to do the right thing in the right way. If that means abandoning policy and breaking precedent, then so be it, says he.

But beware the law of unintended consequences. Abandoning precedent invites charges of arbitrary and capricious action, and provide the only good reason for judicial intervention.

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