In an unprecedented move, the NCAA announced that is launching an investigation into whether Penn State acted within the confines of institutional control relating to the case and scandal involving Jerry Sandusky.  Historically, the NCAA has exercised broad discretion in investigating matters relating to recruiting, amateurism, eligibility, financial aid, and a host of other topics.  However, the NCAA has not delved into sexual abuse scandals, sexual harassment, or other non-athletic related matters.  Apparently, that has changed, which creates a slippery slope.  If the NCAA continues down this path, there are any number of matters the NCAA could investigate for unethical conduct (i.e., NCAA Bylaw 10.1) and lack of institutional control. 

Although the matters at Penn State are serious and extremely unfortunate, there are governmental agencies that can look into criminal violations and a host of plaintiff’s attorneys that will review the facts for potential civil damages.  There does not seem to be a necessity or reason for the NCAA to look into this matter other than for purposes of positive public relations.  Additionally, the spirit of the bylaws at issue do not appear to fail under the NCAA’s purview for matters of this kind.  Nonetheless, NCAA President Mark Emmert sent Penn State a letter requiring Penn State to provide information relating to the following questions:

1.            “How has Penn State and/or its employees complied with the Articles of the Constitution and bylaws [(i.e., NCAA Articles 2.1, 2.4, 6.01.1, and 6.4; NCAA Bylaws 10.01.1, 10.1, 11.1.1, 11.1.2.1, and 19.01.2)] that are cited in this letter?”

2.            “How has Penn State exercised institutional control over the issues identified in and related to the Grand Jury Report?  Were there procedures in place that were or were not followed?  What are the institution’s expectations and policies to address the conduct that has been alleged in this matter upon discovery by any party?”

3.            “Have each of the alleged persons to have been involved or have notice of the issues identified in and related to the Grand Jury Report behaved consistent with principles and requirements governing ethical conduct and honesty?  If so, how?  If not, how?”

4.            “What policies and procedures does Penn State have in place to monitor, prevent and detect the issues identified in and related to the Grand Jury Report or to take disciplinary or correction action if such behaviors are found?”

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.