The conviction of former Penn State assistant coach Jerry Sandusky on 45 counts of child sex abuse coupled with Saturday's reports of a university-wide cover-up of the incident is sure to have legal ramifications in the courthouse. There also might be fallout on the football field for the Nittany Lions, who now teeter on the edge of the definition of "institutional misconduct."
Reports surfaced Friday that the university and the athletic department were involved in a massive cover-up of Sandusky's molestation of a boy on university property. If Penn State did in fact conceal its knowledge of Sandusky's actions, it could amount to a legal headache for a university that still faces legal proceedings for its role in the scandal. It might also bring NCAA sanctions if a connection can be made between the athletic department and the criminal actions of Sandusky and any potential cover-up.
The NCAA has stepped in to punish programs for infractions such as paying players or academic fraud, so could the "death penalty" be coming for Penn State's role in failing to report or stop Sandusky from his criminal acts? And if the reports of a cover-up are true, this only furthers the case against Penn State not only being complacent in the Sandusky incident, but in fact looking to sweep the issue under the rug.
Sandusky committed at least one act that led to his conviction on the grounds of the university campus inside an athletic department building. Moreover, the act was seen by a member of the football coaching staff and summarily covered up by the athletic administration. The administrative leave of athletic director Tim Curley and the eventual dismissal of former head coach Joe Paterno as part of the cover-up now calls into question whether the NCAA needs to bring the hammer down on the Nittany Lions.
Or if it even can.
Dr. Jerry Parkinson, a professor of law at Wyoming, who served for 10 years as the coordinator of appeals for the NCAA Division I Committee on Infractions, isn't sure if the NCAA will step in at this point.
"The novelty of the case also presents real uncertainty regarding appropriate sanctions," Parkinson told Yahoo! Sports. "In the past, scholarship reductions/restrictions typically have been reserved by the infractions committee for violations that involve recruiting -- although there is a growing sentiment toward scholarship penalties in any 'major' case -- and failure to monitor and lack of institutional control have been considered 'major' violations.
"A finding of lack of institutional control is significantly more serious than failure to monitor, so a postseason competition ban for a year or two is not unusual in the case of such a finding. But again, this is such a novel case: Do you penalize a team with a postseason ban for the criminal conduct of a former assistant coach -- conduct that has nothing to do with 'NCAA rules'?"
Sandusky's acts and the cover-up that followed fall under the auspices of criminal misconduct and therefore the NCAA is not the governing authority in such instances. Most cases involving "institutional control" — including the famed case of the NCAA canceling SMU's 1987 football season for player payments — are directly related to infractions governing student athletics and are not criminal in nature.
The committee is concerned with "personnel who willfully violate NCAA rules, or who are grossly negligent in applying those rules."
Dr. Jo Potuto, who chaired the Committee on Infractions from 2006-2008 and is a professor of law at the University of Nebraska-Lincoln, told Yahoo! Sports that she thinks Penn State could have done more to follow up on the incident on its campus but that "At Penn State, the system on paper was OK."
Which means the NCAA taking punitive steps against the school might be far-fetched since this isn't traditional "institutional misconduct."
"It covers activity clearly within existing bylaws — academic misconduct [and] attempts at preferential treatment of athletes," Potuto said. "If the evidence regarding the Sandusky charges shows a failure of institutional control of athletics because the failure to pursue … relates to athletics, then maybe you have an NCAA issue."
So with perjury charges against Curley, and the state's attorney general perhaps bringing even more charges in light of further recent subpoenas, Penn State clearly isn't out of the clear yet. Dr. Parkinson isn't sure the NCAA won't extend its reach to weigh the actions of Penn State in covering up the Sandusky abuse that took place on its campus.
"I was intrigued to hear that the enforcement staff was investigating -- presumably for possible 'failure to monitor' its athletics program or 'lack of institutional control' over the program, two common institutional violations," Parkinson said. "Certainly if athletics personnel or other university leaders on up to the president, who is ultimately responsible under NCAA rules for what happens in an athletics program, knew about Sandusky's alleged behavior with young boys and failed to monitor/control such behavior, it is possible that such a finding could be made against the institution because Sandusky was still involved with the athletics program and allowed to use its facilities.
"Nonetheless, this would be a novel infractions case because the alleged underlying conduct sexual assault is not an 'NCAA violation.' In my time on the committee, I don't recall a case in which a finding of failure to monitor or lack of institutional control was made in isolation -- i.e., without some underlying violation, such as a recruiting violation or academic fraud."
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