PSU investigation different from start

Updated: July 23, 2012, 7:45 PM ET
By Mike Fish | ESPN.com

It was a very subtle yet telltale sign that this investigation would be different. The NCAA seemingly violated one of its cardinal tenets when it posted a November letter on its website from its president, Mark Emmert. Emmert was notifying Penn State president Rodney Erickson that the collegiate governing body was undertaking an examination of his athletics department in light of what had become a widely publicized child sexual abuse scandal with ties to the Nittany Lions football program.

The letter was seen as blasphemous in some quarters. NCAA policy, as straight-laced as it gets, has forever been not to utter a peep about the initiation of an investigation, let alone publish a three-page letter for the world to see. "He went off track from day one when they put that letter on their website,'' a former NCAA enforcement representative said of Emmert.

But that same insider, as well as nearly a dozen others contacted by ESPN.com in recent days, acknowledged that Emmert and top NCAA leadership couldn't have taken the unprecedented measures announced Monday if they'd played by normal rules. There is general agreement that while what transpired at Penn State was both criminal and heinous, it might not have violated NCAA rules as written in the hefty rulebook and policed by its enforcement staff.

The NCAA had never punished a school for criminal behavior.

So the enforcement staff of in-house investigators would have been venturing into new territory. It is suggested that the Committee on Infractions -- a collection of athletics administrators, law professors and attorneys who hear cases and then divvy out penalties -- would have had even less of a stomach going down a new road. And, if this route had been pursued, it easily could have taken a couple of years as investigators sat in courtrooms waiting for criminal and civil cases to play out.

Instead, the NCAA president bypassed the old way of doing business and fast-tracked the case. He first got authority for his hands-on approach from the Division I Board of Directors and the NCAA Executive Committee -- both composed of college presidents, many serving on both bodies. Then, he used the scathing report by former FBI director Louis J. Freeh -- which was commissioned and accepted by Penn State -- as the charging document and the basis for the crippling sanctions revealed Monday.

Athletics programs typically go through the process of self-reporting violations, often with the assistance of an outside law firm, so what happened here is not that unusual. The Freeh report ended up serving as Penn State's self-report.

"What Penn State didn't have the chance to do was decide what penalties were going to be imposed,'' said Chuck Smrt, a former NCAA enforcement director. "I can't picture any school imposing what the NCAA did. The penalties are more significant than if you closed the program down for a year.

"If the Penn State president goes to the NCAA, what choice does he have? Do you want to fight that? Then you are fighting or saying sexual abuse is OK. Once the NCAA came up with that penalty -- you can't fight that.''

The actions by Emmert, who previously led LSU and the University of Washington, were immediately met with mixed reviews, as some applauded his boldness and others cast him as a politician carefully picking his spot, taking on a deflated Penn State program that's not in position to fight back.

The lingering question is what this means for the future and whether, and under what circumstances, NCAA leadership will have the wherewithal to address other moral and legal issues involving coaches and student-athletes.

What happens the next time a college coach engages in inappropriate sexual relations with a student-athlete? Or trades sex for playing time or an extra benefit, both of which have been alleged in the past? What happens the next time a coach or student-athlete runs amok of the law, and there's a campaign to sweep it under the rug?

"Certainly this is a very unusual situation, I understand that, but I don't know how you look at this down the road when other situations arise,'' said Roy Kramer, former SEC commissioner. "How does the NCAA approach those? Because this is certainly outside the enforcement structure that has been the normal procedure.

"To what degree can the NCAA address the culture of the situation as opposed to just managing the events and the kind of things it has traditionally addressed? Does it become an all-inconclusive umbrella so to speak? That is something the membership has to address as they go down the road.''

Emmert insisted he has not opened Pandora's box, saying instead this case was "incredibly unprecedented.'' Yet others with notable experience within the NCAA process, including former heads of the enforcement and infractions process, offer a differing opinion.

"The threshold for what is so egregious to rise to this level is going to be difficult,'' said Smrt, the former NCAA director who now leads a firm representing college programs facing violations. "That is going to be the difficult thing. In this case it is easy to say this behavior was so egregious. Less than this, I don't know where you draw the line. I do think a part of it is the cover-up. If you look at this case, it wasn't so much what [Jerry] Sandusky did. It was, what did the others do? They had knowledge [of events]. So I thought the focus was on the cover-up.''

Josephine Potuto, a University of Nebraska law professor and former chairwoman of the Committee on Infractions, applauded Emmert for taking the direction he did, in particular because the Penn State allegations didn't fit the historically definition of an NCAA violation.

If the case had been brought when she chaired the committee, it might have been tossed aside.

"The NCAA jurisdiction in terms of violations has always so far related to substantive bylaws that are in the NCAA Division I manual,'' Potuto said. "So paying a player. Paying a recruit. Academic fraud so that an athlete stays eligible. The little stuff in the past like too many phone calls to a recruit, text messages. The manual obviously doesn't have any bylaws that govern criminal conduct. It doesn't have any bylaws that govern inappropriate behavior. There is nothing in there that makes it a violation to engage in sexist behavior, for example. None of that is in there. So this is unprecedented.''

There is also a question of how closely the current Committee on Infractions was kept in the loop as Emmert took the Penn State case into his own hands.

"One of the members of the Committee on Infractions said to me on Friday: 'The people back in Indianapolis [at NCAA Headquarters] think they are on a mission from God,''' a former NCAA staffer told ESPN.com. "On Friday, they said the committee was still more than a little curious why Emmert even got into this and why he is talking about things.''

University of Hartford president Walter Harrison, the architect of the Academic Progress Rate and a former chair of the NCAA executive board, which Oregon State president chair Ed Ray now serves, applauded the NCAA's decision as "one of the most important days in the history of college sports."

Harrison told ESPN.com's Andy Katz that he doesn't see Emmert using this sort of power or being granted it too often.

"The circumstances at Penn State were unprecedented, so this decision was unprecedented," Harrison said Monday. "It's hard for me to imagine other circumstances like this. I think it will be very, very rare for there to be a drastic and far-reaching penalty. You would use this (power of the NCAA president) sparingly.

"I could not be more proud of the NCAA leadership. Penn State is one of the world's great universities. This isn't an anti-Penn State decision. This is about putting football or any sport ahead of what colleges should stand for. They said that very clearly. That's what makes me so proud."

Back in the day, David Price, the previous head of NCAA enforcement, says he wouldn't have been eager to investigate the Penn State case because, again, the allegations fail to fit the rulebook.

"I don't see the NCAA getting into reviewing every time an individual on the [athletics] staff creates some legal problem or some criminal activity,'' Price said. "I think there has to be some tie back to the university. That is speculation on my part. Because in the past we wouldn't even have looked at those. Let me rephrase that, we would have looked to determine if there were NCAA violations that were involved, but not strictly illegal activities that are not spelled out as violations by the NCAA.''

Within the NCAA enforcement staff, there was an understanding early on that the allegations involved in the Penn State case were not violations under the guidelines that had been historically followed. The sentiment was voiced even as Emmert took to his bully pulpit threatening the Penn State program.

Michael Buckner, a Florida-based attorney who represents collegiate athletics departments, has gone so far as term Emmert's action not only unprecedented but "perhaps unconstitutional.'' Meanwhile, Jerry Crawford, an Iowa-based attorney who defends collegiate programs, called it a "rush to judgment.''

"I don't know any reason for the NCAA to feel they needed to rush in other than they were getting bullied in the court of public opinion, which they obviously didn't like,'' Crawford said. "What I believe I know is Joe Paterno ran an NCAA sanction football program that didn't just play within the rules, but played well within the rules. Recruited good people. Got them educations. I thought it was a program the country needed to emulate, not ostracize.''

Like it or not, that argument went away when the Penn State president signed a consent decree, accepting the NCAA findings and sanctions.