MSU Investigation Highlights Limits and Failings of NCAA Discipline

The NCAA was founded in 1906 to protect the physical well-being of its athletes.

In the past few years, hundreds of women have come forward to say they were sexually assaulted by former Michigan State team doctor Larry Nassar. In January, Nasser, who also worked as a physician for USA gymnastics, was sentenced to 40-to-175 years in prison for sexually abusing women.  Nassar gained access to many of his victims through his job at MSU, and the school is currently working out the details of a $500-million settlement with more than 300 victims of the disgraced doctor. In addition, MSU is under investigation by the Michigan attorney general’s office and two former university employees—William Strampel, the former dean of the school’s College of Osteopathic Medicine, and Kathie Klages, a retired gymnastics coach—are facing criminal charges relating to their handling of the Nassar situation.

The status of additional criminal charges is a mystery. What is clear is that the school will not face sanctions from the NCAA. The college sports governing body sent a letter to the school this week stating that its investigations into Nassar’s conduct and subsequent reports that the MSU football and basketball programs mishandled allegations of sexual misconduct had not “substantiated violations of NCAA legislation.” [read a full copy of the letter below.]

Finding a way to sanction MSU was always going to be difficult. In its current form, the NCAA is primarily concerned with ensuring fair competition and protecting college sports’ vaunted amateurism status.  There is no NCAA bylaw on sexual assault. In 440 pages of the NCAA handbook, “sexual assault” and “sexual violence” are not mentioned once.

Because there’s no governing rule about sexual assault or violence, the NCAA investigation reached into bylaws and 2.2.3 to launch its investigation into MSU.  Bylaw, entitled “The Commitment to Student-Athlete Well-Being,” implores member institutions to “provide an environment that fosters fairness, sportsmanship, safety, honesty and positive relationships between student-athletes and representatives of the institution.” Bylaw 2.2.3 states that it “is the responsibility of each member institution to protect the health of, and provide a safe environment for, each of its participating student-athletes.”

Apparently, this does not mean an environment safe from sexual assault. This is not a good look for the NCAA.  Do the results of the MSU investigation set a precedent that the “Health and Safety” and “Well-Being” bylaws don’t pertain to sexual assault? Is the molestation of student-athletes by a school-employed physician not enough to create an unsafe environment?  The NCAA better get used to these questions because an eerily similar case is playing out at Ohio State where at least 145 allegations of sexual assault have been levied against a now-deceased physician who worked as a team doctor at the school from 1979 to 1997. Those allegations are being investigated by Ohio State and the Department of Education is looking into the school’s handling of the claims.  It’s not known when—or if—the NCAA will look into this.

It’s clear the NCAA does not want to extend its disciplinary reach into the nebulous world of sexual assault.  For the broader more “social” violations, the NCAA prefers to punt to conferences and individual schools.  Experts agree that the NCAA lacks the bandwidth to investigate these kinds of crimes.  Speaking with the AP, former NCAA executive vice president for regulatory affairs, Oliver Luck, said that 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, [and] sexual harassment[.]” Also complicating matters is that courts (including the Supreme Court in NCAA v. Tarkanian) have held that the NCAA is a private association, meaning that procedural due process does not apply to it.  Many of the NCAA’s member institutions are public schools, so they would be bound by the constraints of due process.  Any NCAA action that appeared arbitrary or forced schools to act without due process would likely spell endless headaches and litigation for state schools and the NCAA.

Despite this, the NCAA can—and has—levied sanctions beyond its amateurism-focused comfort zone.  When the Jerry Sandusky scandal rocked Penn State, the NCAA chose to impose discipline under the ambiguous catch all “lack of institutional control,” rather than under a standard set of bylaw or rule violations. However, this move was not universally heralded; a Pennsylvania State Senator sued the NCAA over the sanctions and it was ultimately recommended that the NCAA reduce its sanctions.  It’s not hard to see how, in the wake of that, the NCAA might be eager to set limits on its ability to impose punishment in situations that go beyond its hard and fast rules and, instead, choose to rely on member institutions and law enforcement to handle any punitive measures.

But that side-stepping is what’s horrifying. Fans see a governing body that rakes in a billion dollars per year cracking down on shoe sales, trading jerseys for tattoos, and helping a parent make a payment on a loan, but stepping back when hundreds of women are violated by a person a university hires to ensure the health and safety of its athletes.

When NCAA president Mark Emmert spoke after sanctioning Penn State in 2012, he warned that “the culture, actions and inactions that allowed [the victims] to be victimized will not be tolerated in college athletics” and warned that all schools needed to contemplate whether or not their own athletic programs had became “too big to fail” or “too big to challenge.”  The results of the investigation into MSU should make fans wonder if the NCAA still believes this.

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