NCAA might not sanction Baylor after what happened in Penn State case
If you read the report Baylor issued Thursday detailing the school’s systemic mishandling of sexual assault cases, you could easily describe what happened there as a "failure of institutional integrity leading to a culture in which a football program was held in higher esteem than the values of the institution."
Perhaps you’d fault now-fired coach Art Briles for his "lack of adherence to fundamental notions of individual integrity." Maybe you’d cite the school’s Title IX officers for "a failure to maintain minimal standards of appropriate and responsible conduct."
If so, you’d be using the exact language the NCAA did in 2012 when issuing severe sanctions against Penn State for alleged failure by coach Joe Paterno and other leaders to prevent sexual assaults against children by former assistant Jerry Sandusky.
In both instances, gridiron glory took precedence over justice and public safety. In both cases, a revered football coach either downplayed or ignored troubling accusations. And each coach’s superiors showed disregard toward the alleged victims.
But experts on the NCAA’s infractions process say they’d be surprised if the organization steps in to dispense bowl bans or vacate victories at Baylor like it did at Penn State.
"I don’t think anyone in May 2016 thinks the NCAA’s involvement in that [case] was wise or necessary," said attorney Gene Marsh, a former Committee on Infractions member who represented Penn State during its crisis. "Most people viewed it as an intrusion that wasn’t necessary."
The Penn State case was unprecedented for the NCAA. For one thing, it applied nebulous clauses in the NCAA constitution to a criminal matter only loosely tied to athletics. Furthermore, president Mark Emmert and his executive board bypassed the regular infractions process to levy their own penalties. As testimony and internal e-mails later revealed, Emmert threatened Penn State with the dreaded Death Penalty, then negotiated a consent decree in which the school agreed to a four-year bowl ban, massive scholarship cuts and the vacating of 13 years of victories under Paterno.
Marsh, who would not comment specifically about the situation at Baylor, thinks the NCAA is unlikely to meddle in criminal matters again given the price it subsequently paid in lawyers’ fees. In January 2015, following several unfavorable rulings, the NCAA repealed what remained of those sanctions to settle a lawsuit filed by two Pennsylvania politicians over the legality of the consent decree.
"In issues where there are so many other avenues of redress — criminal, civil, Department of Education — the NCAA does not need to be the policeman of the world in matters that involve athletics," Marsh said. "Organizations can learn from their mistakes. Just because it happened one time doesn’t mean they’re bound to bumble forth again."
Having said that, outgoing Baylor board chairman Richard Willis disclosed on a teleconference with reporters Thursday that the school "has made contact with the NCAA to initially discuss potential infractions and offer full cooperation."
Baylor only released a summary of Pepper Hamilton’s findings, so it’s possible there are potential NCAA violations not yet made public. It’s also possible the school’s "contact" was largely a goodwill gesture meant to stave off an outside investigation.
There is, however, one passage in the report that could in theory catch the enforcement staff’s attention: "The football program’s separate system of internal discipline reinforces the perception that rules applicable to other students are not applicable to football players."
It’s an NCAA rulebook no-no to bestow favors on athletes.
"There may be some extra benefits by [athletes] treated differently from other students," said NCAA compliance expert David Ridpath, an Ohio University sports administration professor. "They could possibly say that’s a competitive advantage, but that’s a bit of a stretch."
"Extra benefit" is a term more commonly associated with receiving illicit payments or discounted merchandise, but one source who’s dealt with NCAA enforcement and the Committee on Infractions said that a "process" could in fact be deemed an extra benefit.
However, for all the bylaws that govern players’ academic requirements, eligibility standards and so forth, there aren’t any that specifically address criminal behavior.
"Now that they backtracked on Penn State," Ridpath said, "I tend to think they’d be nervous to go down that wormhole."
As for Briles or any other staffers who might have attempted to cover up allegations against Bears players, plenty of coaches before them — Jim Tressel, John Blake, Bruce Pearl — met their demise due to NCAA Bylaw 10.1: "Unethical Conduct." The actions described in Baylor’s report would seemingly be the very definition.
However, the NCAA manual spells out 10 examples of unethical conduct, all of which involve committing, arranging or failing to disclose knowledge of traditional violations like improper financial aid or banned substances.
"Unethical Conduct is for involvement in an NCAA violation," said a source who has worked on such cases. "It’s a lot of hoops to jump through for something [else] to get to that point."
There will certainly be those who call for the NCAA to take action against Baylor, especially if new revelations come out. Fans of other NCAA-penalized schools — most notably Penn State — may be furious if it feels the school "skates" for such serious allegations.
The problem is, what happened at Baylor is essentially too serious to fall under NCAA purview. Only once in its entire existence did the organization try to sanction a school for failure to take action against sexual violence — and it wound up having to reverse course in humiliating fashion.
"If you’re going by the Penn State template, then yeah, they absolutely could get involved at Baylor," Ridpath said. "But if I’m making a guess today, it’s that they won’t get involved."