Forensic Statement Questions

7/31/2019 Forensic Statement Questions

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8/28/2012

Extended Statement and Forensic Questions

Discussion of the NCAA and Big 10 Sanctions, of the process bywhich they were negotiated and agreed to, and possible statements by the

Senate to the public and to the NCAA in relation to all these issues

QUESTIONS FOR DISCUSSION AND BACKGROUNDING INFORMATION

PURPOSE

Meeting here as a Faculty Senate in August 2012, we anticipate that PSU will be movingforward on all fronts, including continued academic and research and athletic excellence andintegrity, improvements in the openness of process, and arrangement of more significantcontributions to decision making by a broader set of university constituents. In no way willexamination and commentary on the events and processes of the last year impede such forward

movement, and instead such examination and commentary holds high potential for facilitatingthoughtful and appropriate forward movement.

The recent sanctions on PSU by the NCAA and Big 10 raise a number of important issuesthat the Senate should immediately explore and address. Some of the possible actions that mayflow from our discussion may take many months to come into focus, but others are needed thatwill be meaningless unless they are taken soon in relation to the cascade of events sinceNovember 2011 including the discussions between PSU and the NCAA and the sanctions by theNCAA. The present forensic session and the present statements and questions are intended toserve as an impetus for this process and for considerations of possible actions by the Senate thatmight prove appropriate after discussion.

QUESTION ONE. Should the Faculty Senate send the following review and commentsdocument (or a document similar to it) to the NCAA Board and to the NCAA SanctioningCommittee?

BEGIN document for NCAA.

We strongly endorse this statement by President Rodney Erickson on July 16,2012. " The 267-page Freeh Report, while difficult to digest, was a necessary step in finding thetruth and continuing our healing process as a community. We must not be afraid to examineourselves, our policies and our actions with the clear intent of taking corrective measures and

righting the wrongs." We note that neither President Erickson nor the Board of Trustees hasmade any sweeping statement that accepts as "factual" or "accurate" all details of the complexFreeh Report, but that some communications by the NCAA and BIG 10 to PSU and the publicimply that kind of blanket acceptance.

As background it is important to note that the NCAA and PSU as an overall entity andthe Faculty Senate as a PSU component all expect considerable responsibilities by student-athletes, and that the past record of the last year 20 years has been impeccable with no majorNCAA sanctions of PSU football or any other athletic program. In turn, the Senate should make


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certain that we fulfill our responsibilities to student-athletes should they be unfairly treated orharmed.

The Faculty Senate, on the basis of many exchanges with President Erickson in the past10 months, expected that it would be consulted as a full body in a timely and significant way ona matter as significant as ongoing discussions with the NCAA on possible sanctions to PSU,

before any acceptance of sanctions occurred. This has proved not to be the case, even though anemergency special meeting of the full Senate can be scheduled with just a week's notice.However, an extenuating factor is that the NCAA itself has behaved towards PSU in many waysthat are inconsistent with its past procedures for investigating problems and rules violations andfor keeping the process of investigation, hearings, and appeal open. As revealed in recent publicstatements (August 13, 2012) by the NCAA liason agent for PSU, Gene Marsh, the NCAAbypassed its ordinary Sanctioning Committee and acted as a Board reaching its own conclusionswith absolutely no actual investigation or public hearings and further the Board provided twoforms of inappropriate pressure upon President Erickson and PSU: 1) It threatened a "deathpenalty for football" unless an alternative set of sanctions were agreed to by PSU; and 2) Itthreatened to withdraw the offer of this alternative set of sanctions if any "leaks" to the press or

public were to occur before PSU agreed to the sanctions. So, forget about the Sunshine ofSunshine Laws, forget about open process, and full steam ahead for secretly negotiated deals !

For clarity, it seems essential to separately address two components of the NCAAsanctions: 1. Any alleged lapses within the football program in regards to recruiting, unethicalpayments or compensations of any kind to athletes or their families, eligibility, gambling, fundraising, course cheating, and related similar matters 2. Failures of "oversight" or "management"for the football program in particular or for the university overall. Below these are consideredalong with some brief comparison to known prior sanctions by the NCAA in relation to each ofthese domains. Following on these sections are questions and comments concerning the processby which PSU and the NCAA entered into discussions, extended these discussions, and reached

a point where President Erickson accepted the sanctions for PSU and members of the Board ofTrustees made commentaries on these issues as individual members in various forums and alsoduring an August 13 conference call (not a legally constituted meeting of the Board) thatincluded most members of the Board.

ALLEGED LAPSES WITHIN THE PSU FOOTBALL PROGRAM & OTHER PROGRAMS

The NCAA has an established set of procedures intended to insure that sanctions givenare appropriate to the nature and severity of the lapses within an athletic program. Even a cursorylook at some past sanctions suggests that indeed when more severe and more extended lapseswith a program have occurred the NCAA sanctions typically are stronger than for lesser lapses.

Example 1. After conducting its own investigations and hearings, the NCAA announcedthat it found one football program guilty of repeated rule violations and failures in oversightacross 12 years. The rule violations cut across many categories, including the formation of aslush fund and payments from the slush fund directly to student athletes, payments from footballboosters directly to student athletes, extensive recruiting violations, and a conspiracy of silenceand inaction among coaches and administrators

NCAA sanctions were the "death penalty for football" (no games allowed) for one year,extension of an existing probation for 4 more years, loss of over 50 scholarships over 4 years, nooff-campus recruiting for one year, and reduction in allowed number of assistant coaches


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Example 2. After conducting its own investigations and hearings across six years, theNCAA announced that it found one basketball program guilty of repeated rule violations andfailures in oversight across multiple years. The rule violations cut across many categories, butwere most flagrant in the domain of large payments by basketball boosters to student-athletes,with some payments starting even when potential recruits were in high school. Legal convictions

of the booster Ed Martin and of some former student-athletes also occurred.The NCAA criticized the head basketball coach but did not sanction him.NCAA sanctions included loss of two years of postseason play eligibility, later reduced

after appeal to just one year.NCAA sanctions further included "vacating" (school does not have credit for win, but

neither does the opposing team) games for the specific 5 years of past competition in which thespecific student-athletes who were paid had played, return of money awarded by the NCAA formultiple years of postseason play, and the loss of one scholarship per year for 4 years.

Example 3. After conducting its own investigations and hearings, the NCAA announcedthat it found sports programs at one University guilty of specific student-athlete course

cheating violations in a narrow time frame. Ten sports and 61 athletes were identified, andNCAA scholarships were reduced in all 10 sports. In terms of vacating games, the NCAA actedwith very high specificity. It vacated only the 12 football wins in which any of the 25 identifiedcheating football players had participated.

In contrast, for the PSU football program it is easy to summarize the violations that theNCAA alleges in its sanctioning statement: ZERO violations in regards to recruiting, paymentsor compensations of any inappropriate kind to athletes or their families, eligibility, gambling,academic cheating, fund raising, and related similar matters. Furthermore, the NCAA identifiesNO GAMES in which an ineligible football player participated for the years 1998 to 2011 or forany other time period. The NCAA cites "the Freeh report" as the only background investigation

it reviewed, and in that report there are no identified football program lapses in terms of any ofthe student-athlete funding and eligibility and conduct matters that have been at the heart ofNCAA sanctioning of football, basketball, track, tennis, volleyball, and other athletic programsat other institutions. Further, the NCAA acknowledges that PSU has no major violations of anykind in the past.

The NCAA in its written announcement of the sanctions for PSU gives a broad, blanketindictment of the "culture" at PSU. We note that for the past 20 years the "culture" at PSU hasbeen sufficiently positive and appropriate to lead to high graduation rates by student-athletes infootball as well as a broad range of other sports and also to lead to the avoidance of any priorNCAA sanctions for violations of rules or for lapses in oversight. We further note that among

the likely contributors to these outcomes were persistent and thoughtful attention to student-athlete issues by then-Provost Rodney Erickson and by the Faculty Senate.

ALLEGED LAPSES IN OVERSIGHT OR INSTITUTIONAL CONTROL AT PSU

The Freeh report definitely concludes that on issues of preventing child abuse and onprompt and persistent and complete reporting of child abuse there were major lapses: "...in orderto avoid the consequences of bad publicity, the most powerful leaders at the University--Spanier,Schultz, Paterno, and Curley--repeatedly concealed critical facts relating to Sandusky's childabuse from the authorities, the University's Board of Trustees, the Penn State Community, and


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the public at large (page 16)." When placed in the framework of past NCAA sanctions forinstitutional misbehavior, these alleged misbehaviors at PSU fall squarely under the categories ofserious lapses in "institutional control" or "institutional oversight." Nothing in the Freeh report,however, connects these alleged lapses in institutional oversight to any lapses in oversight ofstudent-athletes in the football program or in any other PSU athletic program.

In contrast, the most notable instances of past NCAA sanctioning of any institution forinstitutional control all involve an intermingling of lapses in control with specific and flagrantviolations of rules for student-athletes.

EXAMPLE 1. In the case of the first football program given a "death penalty," there wasmassive lack of institutional control. Across many years and despite multiple probations,warnings, and sanctions from the NCAA, there was a conspiracy of silence and inaction amongcoaches and administrators, leading to no firings of coaches or administrators and no correctiveactions being taken to eliminate rule violations. On top of that, it was alleged that at least 3 keycoaches or administrators were lavishly paid "bonuses" from special funds to maintain theirsilence.

NCAA sanctions for lack of institutional control cannot be separated in this instance fromthe sanctions for rules violations, but by inference it appears that the NCAA SanctioningCommittee felt that their severe sanctions for the multiple years of rules violations wereindirectly sanctions as well as for lack of institutional control.

EXAMPLE 2. In the case of one University, major rules violations were identified by theNCAA across more than 75 prospects and student-athletes, in these sports: football, men's tennis,women's tennis, and men's and women's track and field and cross country. Recruiting violationswere widespread, with violations in terms of financial aid and cash payments, impermissiblelodging and transportation, and illegal practice sessions. International students participated inathletic programs before they were eligible. Coaches and other university personnel provided

false and misleading information to investigators. Multiple coaches were judged as violatingethical conduct. The NCAA concluded there was a lack of institutional control.

NCAA sanctions included reductions in scholarships in multiple sports, a 1-year ban onwomen's tennis postseason play, recruiting restrictions in all sanctioned sports, recruitingrestriction for international students, and vacating of wins by a particular ineligible women'stennis player.

MISSING EXAMPLE. NCAA sanctions to a sports program for lack of institutionalcontrol in the absence of findings of major rules violations by the sports programs at aninstitution appear never to have been given before. So the sanctions by the NCAA on thefootball program's past wins, on scholarship availability, and on postseason play appear to be

totally without relevant precedent.Consider the following hypothetical example of future events. At an NCAA member

institution there are a chain of events at some non-sports-related campus location, documented insome form of official investigation, that include child abuse, failure to report child abuse, as wellas conspiracy to cover up the events and the absence of their reporting, but in which none of theadults charged with ethical lapses have any prior or current ties to any sports program/s at theinstitution. Would it not be almost certain that the NCAA would place sanctions on the offendinginstitution? And if so, what manner and degree of sanctions would seem appropriate?


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CHILD ABUSE EXAMPLE.

Our hearts go out to the victims of child abuse, and we pledge again to work in myriadways to support appropriate actions and research to prevent child abuse, to help victims when itdoes occur, and to facilitate prompt and thorough reporting of any suspected instances. TheNCAA based its sanction of $60 million, to go into a fund at PSU supporting work in prevention

of child abuse, on the findings of the Freeh report, and it is apparent that these particularsanctions are on PSU as a whole for its particular failures of institutional control as regards childabuse and child abuse reporting.

Considering all the above, we believe that neither the NCAA process nor the specificNCAA sanctions concerning loss of football scholarships, official records of games won and lost(vacating of all football wins), and bans for 4 years on postseason football play fit fairly withinthe precedents of NCAA sanctions in the past for other football programs and other sportsprograms. These sanctions do injustices to the large number of student-athletes who wererecruited fairly to the PSU football program, who achieved distinction on the playing fields and

in classrooms, and who behaved with honor and responsibility.

Here today we are not making a formal appeal but rather an informal and timelycommunication to the NCAA Board and to its Sanctioning Committee. We ask the NCAA Boardand its Sanctioning Committee to reflect upon the above observations and to consider newactions that would lessen or remove the recently announced PSU football-specific sanctions.One obvious mechanism that would allow such new actions would be the understanding alreadyin place (noted in public remarks on August 13, 2012 by Gene Marsh and PSU administrators)between PSU and the NCAA that "by mutual agreement" the parties could at any time enter intofurther discussions of the sanctions.

END document for the NCAA

FURTHER QUESTIONS FOR DISCUSSION

QUESTION 2. Should the Faculty Senate prepare and send a similar document to Big 10officers?

This would make sense because the Big 10 sanctioning statement basically echoes the NCAAsanctions (plus loss of about $13 million in Big 10 postseason play income) and like the NCAAerroneously states that President Erickson "accepted as factual" the entire Freeh report.

QUESTION 3. How can the Senate, within existing PSU structures, best work to achieve astronger role in university planning, monitoring, decision-making, and governance overall than ithas achieved in the past?

QUESTION 4. Should the Senate work toward a new and explicit signed memo ofunderstanding between the PSU President and the Faculty Senate on when and how and on whatissues the President will seek full input and consent from the Senate before making significantdecisions?


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QUESTION 5. Should the Senate move toward more frequent consultation with the nationalorganization of Faculty Senates, the Coalition on Intercollegiate Athletics (COIA), concerningsuggested reforms and other issues?

QUESTION 6. How can the Senate best work to modify certain aspects of PSU institutionalstructure so as to achieve a stronger Senate role in university planning, monitoring, decision-

making, and governance overall than it has achieved in the past?

QUESTION 7. Should the Senate secure funding for and authorization of a new faculty position,an Ombudsman for the Senate, who would have power to monitor all university mattersincluding athletic programs and who would report solely to the Faculty Senate?

When issues are raised or reports given by the Ombudsman to the Senate, the Senatewould meet and decide in what ways to work with PSU administrators and the Board of Trusteesto follow up on the Ombudsman's information. The Ombudsman for the Senate would add animportant and independent layer of monitoring, compatible with other changes underway at PSU,to help insure appropriate procedures and actions on child abuse and rape issues and student-athlete eligibility and all other issues of institutional ethics, planning, and monitoring.

(For related ideas on reform see Policy Statements from the Coalition on IntercollegiateAthletics, COIA)

Keith Nelson, Senator, College of the Liberal Arts

Forensic Statement Questions

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