Biggest NCAA Reform in Two Years Proposes to Gut School Compliance Duty

It is September 2010, and Ohio State head football coach Jim Tressel is filling out the ‘Certification of Compliance’ form which NCAA bylaw 18.4.2 mandates that all staff members, (including university presidents) sign each September, to “certify that you have reported through the appropriate individuals on your campus to your chancellor/president any knowledge of violations of NCAA legislation involving your institution.” I”ll call this document the “Little Sensor Certificate,” for reasons I’ll get to in a moment.

jim-tressel

Jim Tressel

Tressel ‘Purposely Hid’ Information

Five months earlier, Tressel had received emails from a local lawyer about NCAA violations involving the sale or trade (for tattoos) of OSU memorabilia by players, including star Terrelle Pryor. But Tressel lies, by stating that he has no knowledge of any NCAA violations. And for the next four months he continues to conceal his knowledge, even after being confronted with a U.S. Attorney’s December 11 letter to OSU, reporting on the very same violations. It is only on January 16, 2011, when OSU staffers confronted him with his own emails (which OSU, incredibly, had not searched until then), that Tressel confessed he had been lying all along. In December 2011, the NCAA COI imposed sanctions on OSU and Tressel, finding that he purposely hid” information, and was “not credible,” citing the lie Tressel had put to paper when he signed the September 2010 Little Sensor Certificate.

The following year, the Penn State/Sandusky scandal erupted, and made clear that PSU’s iconic coach Joe Paterno and others had, in an effort to protect PSU football, long been burying information about Sandusky’s predatory behavior toward young males.

The Creep-to-Cheat

The Tressel and Paterno scandals exposed that old Creep-to-Cheat which has plagued big-time college sports since early in the 20thcentury, when Yale’s Walter Camp was alleged to have maintained a slush fund to fund trips to the Caribbean, and other goodies, for his athletes. The old Mad Bulls of Amateurism Triumph and Profit had compelled Tressel and Paterno to repeatedly lie, deceive, and conceal, and their stunning fall from grace, combined with a trend showing that big violations are almost always popped by outside entities (U.S. Attorneys or reporters), rather than in-house compliance, suggested that the NCAA’s ‘self-reporting’ framework was broken.

Return to Home Rule?

During the first half of the 20th century, the NCAA’s ‘Home Rule’ doctrine left enforcement authority at ‘home’ with the school or conference, and the NCAA functioned more like a Ladies Library Auxiliary than a business-regulating body. But things changed at mid-century, when simmering jealousies between schools about the ever-lurking ‘Creep-to-Cheat’ prompted the NCAA to replace Home Rule with a centralized set of rules and sanctions, the enforcement of which would, the NCAA decided, depend upon one basic duty assigned to all schools and participants: to self-report violations. In theory, school, coach and player have since been obligated to self-report.

As a result of the 2014 Freeh Report findings, Penn State was required to install new team ‘Integrity Monitors,” make ethics education mandatory, and put in place more independent, expanded compliance staffing. And at least in part because of Tressel and Paterno self-reporting violations, beefed-up 2013 NCAA bylaws required that “a head coach is presumed responsible for major/Level I and Level II violations (e.g. academic fraud, recruiting inducements) occurring within his or her program unless the coach can show that he or she promoted an atmosphere of compliance and monitored his or her staff.The coach involved with a Level I or II violation now has the burden of disproving this ‘presumption’ that he was ‘responsible.’

The Creep-to-Cheat Disguised as Reform

But the NCAA’s D1 Council proposed this past summer that, by next summer, the requirement that all staff members annually fill out the Little Sensor Certificate be eliminated. Their loopy explanation?:

The administrative burden involved with these particular forms outweighs their utility and the involved process has become perfunctory. Institutions should have the discretion to determine appropriate ways to ensure and certify compliance with NCAA legislation. Other legislation sets forth the responsibility of control related to athletics in compliance with NCAA rules and the role of the institution’s president or chancellor. Elimination of the forms does not diminish the importance of compliance and the responsibilities of the institution and its staff members.”

Will they next propose a return to pre-1910 football rules, to outlaw the forward pass? Or propose to turn the clock back to pre-1970, by banning the instant replay? The ‘Home Rule’ premise at the heart of this new proposal – that “institutions should have the discretion to determine appropriate way to ensure and certify compliance with NCAA legislation”– is not only a radical departure from every reality of current NCAA regulation and enforcement; it is a cowardly effort to very quietly gut the new reforms which had sought to impose a greater compliance responsibility upon the coach. Let’s look, then, to see what dramatic events might’ve prompted these D1 Council revolutionaries to attempt to so radically re-write NCAA doctrine.

The D1 Council claims that the forms create an ‘administrative burden’. Though this rationale might’ve had tiny merit 50 years ago, today, the signing, filing, compilation and storage of such forms creates no digital burden at all. It’s a ‘mouse-click,” basically.

And this tiny ‘burden’ allegedly ‘outweighs’ the ‘utility’ of the Little Sensor Certificate. Did the D1 Council never read the stunning 2011 COI findings, which excoriated Tressel because he “purposely lied” on that Certificate? Or these Tressel comments about his players’ behavior – uttered while still concealing his own deceit — in front of a December 21, 2010 national television audience transfixed by an unfolding ‘Tat-Gate’ scandal?:

I think we all have a little sensor within us, that, ‘Boy, I’m not sure I should be doing this.’ … We have to seek the right solutions, and the right solutions are to come to people who understand the rules, who know what our options are, who could maybe provide a direction we could go.”

Tressel’s Little Sensor concept helps explain the purpose of the Certificate upon which he lied: the form is meant to make the coach stop for a moment, to consider for himself the Little Sensor question posed by the form — “Do you know of any violations?” – but also Tressel’s own Little Sensor question: “Boy, should I be doing this?”

While pondering his Little Sensor questions, Tressel lied ‘on purpose,’ which allowed the COI to summarily reject the preposterous excuse offered by OSU and Tressel for his behavior – that it was the result of ‘indecision. Tressel’s actions were no accident, or a slip-up: they were, the COI found, intentional.

Based on this cenral role of the Little Sensor Certificate in proving Tressel’s long-running fraud, then, is there any foundation for the D1 Council’s bizarre conclusion that the form ‘has become perfunctory” or has no “utility”? OSU, in fact, certainly didn’t believe the form was ‘perfunctory’: the No.1 ‘corrective action the school self-imposed was to “review both the institutions’ formal protocol for Reporting of Violations” and NCAA Bylaw 10.1 with all coaching staff members on a quarterly basis.”

The Little Sensor Certificate Should be Strengthened, Not Eliminated

The solution for this still broken system, then, is not to eliminate the Little Sensor Certifiicate; instead, that Certificate must be strengthened. It should, at a minimum, require an even more detailed, thorough affirmation by the coach, along with a requirement that his statements be sworn and notarized as an affidavit.

The D1 Council’s lame explanation for its outrageous proposed elimination of the Little Sensor Certificate should fool no one. There is no good faith argument that the Little Sensor Certificate, or even a more thorough affidavit, is a ‘burden,’ or ‘perfunctory.’ 2013 reforms had imposed a stronger compliance duty upon coaches; this new proposal is an attempt to gut those reforms. The creep-to-cheat has, it appears, pushed the coaches to push to gut NCAA oversight, in order to have a whole lot more ‘wiggle room’ within which to cheat. The Little Sensor Certificate is an essential regulatory and enforcement tool, and its elimination will send a strange message to all schools and participants: that the NCAA itself is not interested in “promoting an atmosphere of compliance.”

Do not,” Joe Paterno exhorted the Penn State grads at the 1973 commencement, “underestimate the world. It can corrupt quickly and completely.”

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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