...Emmert acknowledged the NCAA's ability to selectively interpret the articles regarding lack of institutional control and the bylaws regarding unethical conduct. Both "lack of institutional control" and "unethical conduct" are subjective concepts contingent on violations of other actions disallowed by the NCAA.For unethical conduct, bylaw 10.1 in the NCAA handbook, Emmert wrote, "While admittedly, the actions alleged to have occurred in this instance are not specifically listed in the bylaw, it is clear that deceitful and dishonest behavior can be found to be unethical conduct."
Such an open interpretation could encompass the behavior of Sandusky and the Penn State administrators, said Alan Milstein, a lawyer with Sherman-Silverstein in Philadelphia. NCAA investigations don't follow due process.
"They are both prosecutor and judge and jury," Milstein said. "They make a determination and they mete out any punishment they want from fine to suspension to death penalty. They could do whatever they wanted to do."
Milstein believes the NCAA can and should punish Penn State University because he considers Sandusky's actions and the alleged cover-up directly related to the prestige and profitability of Penn State football. Jackson refutes that possibility because -- no matter the involvement of athletic department employees -- an NCAA punishment is possible only if an NCAA violation occurs.
He notes that the NCAA could veer away from the grave criminal issues of the Sandusky situation and find instances where Penn State committed unrelated violations. Under its current rules, the NCAA has a better case for investigating and punishing Penn State regarding Sandusky's transportation of children to football games and athletic facilities than the actual crimes, Jackson suggested.
The children could be considered "prospective student-athletes." A prospective student-athlete is defined by the NCAA as any student who has started ninth-grade classes, or any student who has not started classes for the ninth grade who has received any financial assistance or other benefits that the institution does not provide to all prospective students.
Bylaw 13.5.1 states that an institution cannot provide transportation to a prospective student-athlete to a practice or competition site. But Bylaw 13.1.2.2 likely would grant an exception to this transportation if it is deemed Sandusky had established a friendly relationship with the children through The Second Mile.
But the possibility illustrates the way the NCAA is equipped to work. Any punishment of unethical conduct or lack of institutional control would have to stem from neglecting or refusing to report similar violations.
Jackson brought up the 2005 Baylor case as a parallel. Murder was not mentioned once in the NCAA report. The athletic department was deemed to lack control because the employees did not report failed drug tests, sketchy tuition payments and other clear-cut NCAA violations, not because a player its employees had recruited and were responsible with monitoring murdered a teammate. "Tell me how NCAA legislation has changed since then," Jackson said. "Do I think it should change? Yes."
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