The editor is not a lawyer. However, he has had over half a century of dealing with legal matters and he knows the importance of going back to the original source when doing research.
Therefore we have downloaded and read NCAA Constitution, Operating Bylaws, Administrative Bylaws
It is not clear to us at all that the NCAA had the power to “kill” any athletic program and, if it does, the process and safeguards would have made it extremely unlikely under the current situation. Rather, even the penalties and fines levied seem to be a stretch of its powers and susceptible to successful appeal within the NCAA and, if necessary, in a Court of Law.
Furthermore, while it is possible that only Penn State University has standing to challenge most of the sanctions in court, we hypothesize that any major Penn State donor or group of donors may have standing to challenge the $60 million fine.
There must be a lot of Penn State lawyers who have concerns about the NCAA penalties. We invite them to review the NCAA Constitution, Operating Bylaws, Administrative Bylaws and share their thoughts with our readership and also with Penn Staters for Responsible Stewardship , or PS4RS , a recently formed alumni group not affiliated with the University.
If the proper and full disciplinary process were followed with the ultimately outcome being decided by other universities, we question whether the NCAA membership is willing to delegate so much power over administrative rather than fair competition matters to the NCCA, let alone its president.
Below are excerpts from the NCAA constitution and by-laws that seemed to touch directly or peripherally on the issue of disciplining an institution.
2.01 GENER AL PRINCIPLE [*]
Legislation enacted by the Association governing the conduct of intercollegiate athletics shall be designed to advance one or more basic principles, including the following, to which the members are committed. In some instances, a delicate balance of these principles is necessary to help achieve the objectives of the Association.
2.1 THE PRINCIPLE OF INS TITUTION AL CON TRO L AND
RES PONS IBILITY [*]
2.1.1 Responsibility for Control. [*] It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program, of the budget and audit of all expenditures. (Revised: 3/8/06)
2.1.2 S cope of Responsibility. [*] The institution’s responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution.
2.2 THE PRINCIPLE OF STUDEN T-ATHLETE WE LL-BEING [*]
Intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes. (Revised: 11/21/05)
2.2.1 Overall Educational Experience. [*] It is the responsibility of each member institution to establish and maintain an environment in which a student-athlete’s activities are conducted as an integral part of th student-athlete’s educational experience. (Adopted: 1/10/95)
2.2.2 Cultural Diversity and Gender Equity. [*] It is the responsibility of each member institution to establish and maintain an environment that values cultural diversity and gender equity among its student-athletes and intercollegiate athletics department staff. (Adopted: 1/10/95)
2.2.3 Health and Safety. [*] 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. (Adopted: 1/10/95)
2.2.4 Student-Athlete/Coach Relationship. [*] It is the responsibility of each member institution to establish and maintain an environment that fosters a positive relationship between the student-athlete and coach.(Adopted: 1/10/95
2.2.5 Fairness, Openness and Honesty. [*] It is the responsibility of each member institution to ensure
that coaches and administrators exhibit fairness, openness and honesty in their relationships with student-athletes. (Adopted: 1/10/95)
2.2.6 Student-Athlete Involvement. [*] It is the responsibility of each member institution to involve
student-athletes in matters that affect their lives. (Adopted: 1/10/95)
2.01 General Principle……………………………………………….3
2.1 The Principle of Institutional Control and Responsibility………………………………………………..3
2.2 The Principle of Student-Athlete
Well-Being………………………………………………………3
2.3 The Principle of Gender Equity……………………….4
2.4 The Principle of Sportsmanship and
Ethical Conduct……………………………………………..4
2.5 The Principle of Sound Academic
Standards……………………………………………………….4
2.6 The Principle of Nondiscrimination……………….4
2.7 The Principle of Diversity within
Governance Structures………………………………..4
2.8 The Principle of Rules Compliance………………..4
2.9 The Principle of Amateurism…………………………..4
2.10 The Principle of Competitive Equity………………5
2.11 The Principle Governing Recruiting………………5
2.12 The Principle Governing Eligibility…………………5
2.13 The Principle Governing Financial Aid………….5
2.14 The Principle Governing Playing and
Practice Seasons……………………………………………5
2.15 The Principle Governing Postseason Competition and Contests Sponsoredby Noncollegiate Organizations………………..5
2.16 The Principle Governing the Economy of Athletics Program Operation……………………..5 4
2.3 THE PRINCIPLE OF GEN DER EQUITY [*]
2.3.1 Compliance With Federal and State Legislation. [*] It is the responsibility of each member
institution to comply with federal and state laws regarding gender equity. (Adopted: 1/11/94)
2.3.2 N CAA Legislation. [*] The Association should not adopt legislation that would prevent member institutions from complying with applicable gender-equity laws, and should adopt legislation to enhance member institutions’ compliance with applicable gender-equity laws. (Adopted: 1/11/94)
2.3.3 G ender Bias. [*] The activities of the Association should be conducted in a manner free of gender bias. (Adopted: 1/11/94)
2.4 THE PRINCIPLE OF SPOR TSMANS HIP AND ETHICAL CON DUCT [*]
For intercollegiate athletics to promote the character development of participants, to enhance the integrity of
higher education and to promote civility in society, student-athletes, coaches, and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility. These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program. It is the responsibility of each institution to: (Revised: 1/9/96)
(a) Establish policies for sportsmanship and ethical conduct in intercollegiate athletics consistent with the educational mission and goals of the institution; and (Adopted: 1/9/96)
(b) Educate, on a continuing basis, all constituencies about the policies in Constitution 2.4-(a). (Adopted: 1/9/96)
2.5 THE PRINCIPLE OF SOUN D ACADEMIC STANDARDS [*
Intercollegiate athletics programs shall be maintained as a vital component of the educational program, and student-athletes shall be an integral part of the student body. The admission, academic standing and academic progress of student-athletes shall be consistent with the policies and standards adopted by the institution for the student body in general.
2.6 THE PRINCIPLE OF NON DISCRIMINATION [*]
The Association shall promote an atmosphere of respect for and sensitivity to the dignity of every person. It is the policy of the Association to refrain from discrimination with respect to its governance policies, educational programs, activities and employment policies including on the basis of age, color, disability, gender, national origin, race, religion, creed or sexual orientation. It is the responsibility of each member institution to determine independently its own policy regarding nondiscrimination. (Adopted: 1/16/93, Revised: 1/16/00
2.7 THE PRINCIPLE OF DIVERS ITY WITHIN GOVERN ANCE STRUCTURES [*]
The Association shall promote diversity of representation within its various divisional governance structures and substructures. Each divisional governing body must assure gender and ethnic diversity among the membership of the bodies in the division’s administrative structure. (Adopted: 1/9/96 effective 8/1/97
2.8 THE PRINCIPLE OF RU LES COMPLIANCE [*
2.8.1 Responsibility of Institution. [*] Each institution shall comply with all applicable rules and regulations of the Association in the conduct of its intercollegiate athletics programs. It shall monitor its programs to assure compliance and to identify and report to the Association instances in which compliance has not been achieved. In any such instance, the institution shall cooperate fully with the Association and shall take appropriate corrective actions. Members of an institution’s staff, student-athletes, and other individuals and groups representing the institution’s athletics interests shall comply with the applicable Association rules, and the member institution shall be responsible for such compliance.
2.8.2 Responsibility of Association. [*] The Association shall assist the institution in its efforts to achieve full compliance with all rules and regulations and shall afford the institution, its staff and student-athletes fair procedures in the consideration of an identified or alleged failure in compliance.
2.8.3 Penalty for Noncompliance. [*] An institution found to have violated the Association’s rules shall be subject to such disciplinary and corrective actions as may be determined by the Association.
2.9 THE PRINCIPLE OF AMATEUR ISM [*]
Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.
2.10 THE PRINCIPLE OF COMPETITIVE EQUITY [*]
The structure and programs of the Association and the activities of its members shall promote opportunity for equity in competition to assure that individual student-athletes and institutions will not be prevented unfairly from achieving the benefits inherent in participation in intercollegiate athletics.
2.11 THE PRINCIPLE GOVERNING RE CRU ITING [*]
The recruiting process involves a balancing of the interests of prospective student-athletes, their educational institutions and the Association’s member institutions. Recruiting regulations shall be designed to promote equity among member institutions in their recruiting of prospective student-athletes and to shield them from undue pressures that may interfere with the scholastic or athletics interests of the prospective student-athletes or their educational institutions.
2.12 THE PRINCIPLE GOVERNING ELIGIBILITY [*]
Eligibility requirements shall be designed to assure proper emphasis on educational objectives, to promote c equity among institutions and to prevent exploitation of student-athletes.
2.13 THE PRINCIPLE GOVERNING FINANCIAL AID [*]
A student-athlete may receive athletically related financial aid administered by the institution without violating the principle of amateurism, provided the amount does not exceed the cost of education authorized by the Association; however, such aid as defined by the Association shall not exceed the cost of attendance as published by each institution. Any other financial assistance, except that received from one upon whom the student-athlete is naturally or legally dependent, shall be prohibited unless specifically authorized by the Association.
2.14 THE PRINCIPLE GOVERN ING PLAYING AND PRACTICE SEASONS [*]
The time required of student-athletes for participation in intercollegiate athletics shall be regulated to minimize interference with their opportunities for acquiring a quality education in a manner consistent with that afforded the general student body.
2.15 THE PRINCIPLE GOVERN ING POS TSE ASON COMPETITION AND CON TESTS SPONSORE D BY NON COLLEG IATE ORG ANIZATIONS [*]
The conditions under which postseason competition occurs shall be controlled to assure that the benefits inherent in such competition flow fairly to all participants, to prevent unjustified intrusion on the time student-athletes devote to their academic programs, and to protect student-athletes from exploitation by professional and commercial enterprises.
2.16 THE PRINCIPLE GOVERN ING THE ECONO MY OF ATHLETICS
PROGR AM OPER ATION [*]
Intercollegiate athletics programs shall be administered in keeping with prudent management and fiscal practices to assure the financial stability necessary for providing student-athletes
3.2.1.2 Compliance With Association Rules. The institution shall administer its athletics programs in accordance with the constitution, bylaws and other legislation of the Association.
3.2.4.11 Discipline of Members. Pursuant to directions of the Board of Directors or the annual Convention, active members shall refrain from athletics competition with designated institutions as required under the provisions of the Association’s enforcement procedures (see Bylaw 19). (Revised: 11/1/07 effective 8/1/08)
3.2.4.12 Standards. Active members agree to establish and maintain high standards of personal honor, eligibility and fair play.
3.2.5.1 Termination or Suspension. The membership of any active member failing to maintain the academic or athletics standards required for such membership or failing to meet the conditions and obligations of membership may be suspended, terminated or otherwise disciplined by a vote of two-thirds of the delegates present and voting at an annual Convention. Membership shall not be suspended or terminated unless:
(a) A notice of intention to suspend or terminate membership, stating the grounds on which such a motion will be based, is given in writing to the chair of the Board of Directors and to the president or chancellor of the member institution on or before the first day of November prior to the Convention; (Revised:3/8/06)
(b) The Board of Directors approves the notification of intention to move for suspension or termination; and
(c) Such notice is included in the Official Notice of the annual Convention.
3.2.5.6 Reinstatement of Terminated Member. Any active member whose membership has been terminated (see Constitution 3.2.5.1) may have it reinstated by a two-thirds vote of the members present and voting at any annual Convention.
3.2.5.7 Reinstatement of Suspended Member. Any active member whose membership has been suspended may be reinstated to good standing in accordance with the terms, if any, of the suspension action, or at any time after six months from the date of such suspension, by vote of a majority of the
3.2.6 Discipline of Active Members. Disciplinary or corrective actions other than suspension or termination of membership may be effected during the period between annual Conventions for violation of NCAA rules. (See Bylaws 19 and 32 for enforcement regulations, policies and procedures.)
19.01.2 Exemplary Conduct. Individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.
19.01.5 Nature of Penalty Structure. As a guiding principle, a penalty imposed under NCAA enforcement policies and procedures should be broad and severe if the violation or violations reflect a general disregard for the governing rules; in those instances in which the violation or violations are isolated and of relative insignificance, then the NCAA penalty shall be specific and limited. Previous violations of NCAA legislation shall be a contributing factor in determining the degree of penalty.
2) A recommendation should not be made to the membership that the institution’s membership in
the Association be suspended or terminated if, in the opinion of the committee (or the Infractions
Appeals Committee per Bylaw 19.2), it does not take appropriate disciplinary or corrective action against the head coach of the sport involved, any other institutional employee if the circumstances warrant or representatives of the institution’s athletics interests. (Revised: 1/10/95, 4/24/03)
(3) “Appropriate disciplinary or corrective action” as specified in subparagraphs (1) and (2) above may include, for example, termination of the coaching contract of the head coach and any assistants involved; suspension or termination of the employment status of any other institutional employee who may be involved; s who may be involved; the debarment of the head or assistant coach from any coaching, recruiting or for a specified period.
