The NCAA’s Role in the Michigan State Case

John Infante
The Bylaw Blog
Published in
4 min readJan 25, 2018

With the sentencing of former Michigan State University and USA Gymnastics doctor Larry Nassar on sexual assault charges, the attention now turns to what will happen to the people and institutions which enabled him for so long. Sally Jenkins points out in the Washington Post that the US Olympic Committee and USA Gymnastics have a charter from Congress, and thus it is well within Congress’s purview to investigate.

But the more noteworthy investigation has already started, as the NCAA has sent a letter of inquiry to Michigan State, opening a formal enforcement investigation. Right away, this draws comparison to the Penn State case both for the similarities and the differences. In both cases, the NCAA faced a decision between investigating and punishing something outside of its wheelhouse or being accused of caring more about amateurism than heinous crimes. The major difference is that rather than moving quickly to accept an outside report and impose punishment, the NCAA appears to be treating the MSU case more like a traditional enforcement action.

This has laid bare the biggest problem with the Penn State case. When the NCAA took the unprecedented step of the consent decree with PSU, it did so with the apparent attitude that it was facing a once-in-a-lifetime or at least once-in-a-generation scandal. The NCAA’s reasoning throughout the PSU case, from the opening letter to the way the penalties were rolled back over time, makes much more sense if you assume that another similar scandal would never happen again in college sports, or at least not for a very long time.

As a result, the NCAA never formalized a process for investigating issues that are infinitely more important than its rules, but which are not within the standard expertise of NCAA investigators. The organization never created the precedent of how to apply the catch-all bylaws cited in the Penn State case. And there does not seem to have been a comprehensive and critical approach to determining what parts of the Penn State process were good, and which were bad.

But there are three clear paths forward for the NCAA. As Dennis Dodd writes, the NCAA has a chance to become a powerful advocate for vulnerable athletes. But it needs to do much more than it did with Penn State.

Punish People, Not Teams or Schools

When it comes to punishing Michigan State, there are no good answers. No matter how severe a punishment is laid down against the women’s gymnastics program, the NCAA will be criticized since it is “just the women’s gymnastics program”. And any punishment large enough to be felt where it hurts for Michigan State, in football and men’s basketball, will draw the opposite criticism of being too harsh and punishing innocent athletes and coaches for the actions of a few.

So as the NCAA approaches the Michigan State case or future similar cases, the focus should be on individuals. The NCAA’s goal should be to hold accountable the people who enabled Larry Nassar or others like him and make sure they cannot simply walk away from East Lansing and easily get back into college athletics somewhere else. Show-cause orders should be the primary punishment to come out of the Committee on Infractions, not postseason bans or scholarship reductions. The precedent here is Dave Bliss, whose role in the Baylor basketball scandal went so far beyond the violation of NCAA bylaws that the COI effectively banned him from college basketball (at least in the NCAA) forever. A similar punishment should be given to those people in power who had the knowledge and chance to stop Larry Nassar but did nothing.

Find Out How Widespread This Issue Is

If once (Penn State) is happenstance and twice (Michigan State) is coincidence, then the NCAA needs to find out if this is a trend. The NCAA needs to open a wider investigation to find out just how prevalent is the issue of athletics staffers, particularly those in regular contact and authority over student-athletes using that contact and authority to groom, harass, or assault them.

That should start with the NCAA committing to open a long-term confidential hotline for athletes to provide them with information. The NCAA should make it clear that complaints will be taken seriously and tips will be thoroughly investigated. This lets the NCAA act as a neutral third-party and alternative to the reporting process on campus which can be frustrated by the interests of staff and coaches.

Second, if the NCAA lacks the expertise to investigate such claims, it should get it. That could mean opening a new office in the NCAA and staffing it with experts in investigating sexual assault cases as well as victim advocates. Or it could mean engaging an outside party such as a law firm to provide that expertise. Either way, it would be a significant financial commitment to make toward taking the issue of sexual assault and harassment of athletes seriously.

Look in the Mirror

Finally, the NCAA should take a serious look at the role the association played in allowing this abuse to happen. Primarily this means asking tough questions about the extent to which NCAA rules enabled abusers. Transfer regulations, amateurism rules, and scholarship renewal procedures all stand out as obvious cases where NCAA rules may have provided abusers with additional power over their victims.

That review should be lead by an independent third-party (i.e. a law firm) and should make sure to engage as many different viewpoints as possible from coaches and compliance staff to athletes and vocal critics of NCAA rules. The final determination should give appropriate weight to both the reasons for the rules and their unintended consequences (much more for the latter when it involves sexual abuse). And the recommendations should offer suggestions of how NCAA’s goals can be achieved without enabling abusers or whether rules simply need to be scrapped in order to protect athletes.

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John Infante
The Bylaw Blog

Occasionally critical, often supportive, and never dumbed down