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8/28/2012 Extended Statement and Forensic Questions Discussion of the NCAA and Big 10 Sanctions, of the process by which

they were negotiated and agreed to, and possible statements by the Senate to the public and to the NCAA in relation to all these issues


PURPOSE Meeting here as a Faculty Senate in August 2012, we anticipate that PSU will be moving forward on all fronts, including continued academic and research and athletic excellence and integrity, improvements in the openness of process, and arrangement of more significant contributions to decision making by a broader set of university constituents. In no way will examination and commentary on the events and processes of the last year impede such forward movement, and instead such examination and commentary holds high potential for facilitating thoughtful and appropriate forward movement. The recent sanctions on PSU by the NCAA and Big 10 raise a number of important issues that the Senate should immediately explore and address. Some of the possible actions that may flow from our discussion may take many months to come into focus, but others are needed that will be meaningless unless they are taken soon in relation to the cascade of events since November 2011 including the discussions between PSU and the NCAA and the sanctions by the NCAA. The present forensic session and the present statements and questions are intended to serve as an impetus for this process and for considerations of possible actions by the Senate that might prove appropriate after discussion. QUESTION ONE. Should the Faculty Senate send the following review and comments document (or a document similar to it) to the NCAA Board and to the NCAA Sanctioning Committee? BEGIN document for NCAA. We strongly endorse this statement by President Rodney Erickson on July 16, 2012. " The 267-page Freeh Report, while difficult to digest, was a necessary step in finding the truth and continuing our healing process as a community. We must not be afraid to examine ourselves, our policies and our actions with the clear intent of taking corrective measures and righting the wrongs." We note that neither President Erickson nor the Board of Trustees has made any sweeping statement that accepts as "factual" or "accurate" all details of the complex Freeh Report, but that some communications by the NCAA and BIG 10 to PSU and the public imply that kind of blanket acceptance. As background it is important to note that the NCAA and PSU as an overall entity and the Faculty Senate as a PSU component all expect considerable responsibilities by studentathletes, and that the past record of the last year 20 years has been impeccable with no major NCAA sanctions of PSU football or any other athletic program. In turn, the Senate should make

certain that we fulfill our responsibilities to student-athletes should they be unfairly treated or harmed. The Faculty Senate, on the basis of many exchanges with President Erickson in the past 10 months, expected that it would be consulted as a full body in a timely and significant way on a matter as significant as ongoing discussions with the NCAA on possible sanctions to PSU, before any acceptance of sanctions occurred. This has proved not to be the case, even though an emergency special meeting of the full Senate can be scheduled with just a week's notice. However, an extenuating factor is that the NCAA itself has behaved towards PSU in many ways that are inconsistent with its past procedures for investigating problems and rules violations and for keeping the process of investigation, hearings, and appeal open. As revealed in recent public statements (August 13, 2012) by the NCAA liason agent for PSU, Gene Marsh, the NCAA bypassed its ordinary Sanctioning Committee and acted as a Board reaching its own conclusions with absolutely no actual investigation or public hearings and further the Board provided two forms of inappropriate pressure upon President Erickson and PSU: 1) It threatened a "death penalty for football" unless an alternative set of sanctions were agreed to by PSU; and 2) It threatened to withdraw the offer of this alternative set of sanctions if any "leaks" to the press or public were to occur before PSU agreed to the sanctions. So, forget about the Sunshine of Sunshine Laws, forget about open process, and full steam ahead for secretly negotiated deals ! For clarity, it seems essential to separately address two components of the NCAA sanctions: 1. Any alleged lapses within the football program in regards to recruiting, unethical payments or compensations of any kind to athletes or their families, eligibility, gambling, fund raising, course cheating, and related similar matters 2. Failures of "oversight" or "management" for the football program in particular or for the university overall. Below these are considered along with some brief comparison to known prior sanctions by the NCAA in relation to each of these domains. Following on these sections are questions and comments concerning the process by which PSU and the NCAA entered into discussions, extended these discussions, and reached a point where President Erickson accepted the sanctions for PSU and members of the Board of Trustees made commentaries on these issues as individual members in various forums and also during an August 13 conference call (not a legally constituted meeting of the Board) that included most members of the Board. ALLEGED LAPSES WITHIN THE PSU FOOTBALL PROGRAM & OTHER PROGRAMS The NCAA has an established set of procedures intended to insure that sanctions given are appropriate to the nature and severity of the lapses within an athletic program. Even a cursory look at some past sanctions suggests that indeed when more severe and more extended lapses with a program have occurred the NCAA sanctions typically are stronger than for lesser lapses. Example 1. After conducting its own investigations and hearings, the NCAA announced that it found one football program guilty of repeated rule violations and failures in oversight across 12 years. The rule violations cut across many categories, including the formation of a slush fund and payments from the slush fund directly to student athletes, payments from football boosters directly to student athletes, extensive recruiting violations, and a conspiracy of silence and inaction among coaches and administrators NCAA sanctions were the "death penalty for football" (no games allowed) for one year, extension of an existing probation for 4 more years, loss of over 50 scholarships over 4 years, no off-campus recruiting for one year, and reduction in allowed number of assistant coaches -2-

Example 2. After conducting its own investigations and hearings across six years, the NCAA announced that it found one basketball program guilty of repeated rule violations and failures in oversight across multiple years. The rule violations cut across many categories, but were most flagrant in the domain of large payments by basketball boosters to student-athletes, with some payments starting even when potential recruits were in high school. Legal convictions of the booster Ed Martin and of some former student-athletes also occurred. The NCAA criticized the head basketball coach but did not sanction him. NCAA sanctions included loss of two years of postseason play eligibility, later reduced after appeal to just one year. NCAA sanctions further included "vacating" (school does not have credit for win, but neither does the opposing team) games for the specific 5 years of past competition in which the specific student-athletes who were paid had played, return of money awarded by the NCAA for multiple years of postseason play, and the loss of one scholarship per year for 4 years. Example 3. After conducting its own investigations and hearings, the NCAA announced that it found sports programs at one University guilty of specific student-athlete course cheating violations in a narrow time frame. Ten sports and 61 athletes were identified, and NCAA scholarships were reduced in all 10 sports. In terms of vacating games, the NCAA acted with very high specificity. It vacated only the 12 football wins in which any of the 25 identified cheating football players had participated. In contrast, for the PSU football program it is easy to summarize the violations that the NCAA alleges in its sanctioning statement: ZERO violations in regards to recruiting, payments or compensations of any inappropriate kind to athletes or their families, eligibility, gambling, academic cheating, fund raising, and related similar matters. Furthermore, the NCAA identifies NO GAMES in which an ineligible football player participated for the years 1998 to 2011 or for any other time period. The NCAA cites "the Freeh report" as the only background investigation it reviewed, and in that report there are no identified football program lapses in terms of any of the student-athlete funding and eligibility and conduct matters that have been at the heart of NCAA sanctioning of football, basketball, track, tennis, volleyball, and other athletic programs at other institutions. Further, the NCAA acknowledges that PSU has no major violations of any kind in the past. The NCAA in its written announcement of the sanctions for PSU gives a broad, blanket indictment of the "culture" at PSU. We note that for the past 20 years the "culture" at PSU has been sufficiently positive and appropriate to lead to high graduation rates by student-athletes in football as well as a broad range of other sports and also to lead to the avoidance of any prior NCAA sanctions for violations of rules or for lapses in oversight. We further note that among the likely contributors to these outcomes were persistent and thoughtful attention to studentathlete issues by then-Provost Rodney Erickson and by the Faculty Senate. ALLEGED LAPSES IN OVERSIGHT OR INSTITUTIONAL CONTROL AT PSU The Freeh report definitely concludes that on issues of preventing child abuse and on prompt and persistent and complete reporting of child abuse there were major lapses: " order to avoid the consequences of bad publicity, the most powerful leaders at the University--Spanier, Schultz, Paterno, and Curley--repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities, the University's Board of Trustees, the Penn State Community, and -3-

the public at large (page 16)." When placed in the framework of past NCAA sanctions for institutional misbehavior, these alleged misbehaviors at PSU fall squarely under the categories of serious lapses in "institutional control" or "institutional oversight." Nothing in the Freeh report, however, connects these alleged lapses in institutional oversight to any lapses in oversight of student-athletes in the football program or in any other PSU athletic program. In contrast, the most notable instances of past NCAA sanctioning of any institution for institutional control all involve an intermingling of lapses in control with specific and flagrant violations of rules for student-athletes. EXAMPLE 1. In the case of the first football program given a "death penalty," there was massive lack of institutional control. Across many years and despite multiple probations, warnings, and sanctions from the NCAA, there was a conspiracy of silence and inaction among coaches and administrators, leading to no firings of coaches or administrators and no corrective actions being taken to eliminate rule violations. On top of that, it was alleged that at least 3 key coaches or administrators were lavishly paid "bonuses" from special funds to maintain their silence. NCAA sanctions for lack of institutional control cannot be separated in this instance from the sanctions for rules violations, but by inference it appears that the NCAA Sanctioning Committee felt that their severe sanctions for the multiple years of rules violations were indirectly sanctions as well as for lack of institutional control. EXAMPLE 2. In the case of one University, major rules violations were identified by the NCAA across more than 75 prospects and student-athletes, in these sports: football, men's tennis, women's tennis, and men's and women's track and field and cross country. Recruiting violations were widespread, with violations in terms of financial aid and cash payments, impermissible lodging and transportation, and illegal practice sessions. International students participated in athletic programs before they were eligible. Coaches and other university personnel provided false and misleading information to investigators. Multiple coaches were judged as violating ethical conduct. The NCAA concluded there was a lack of institutional control. NCAA sanctions included reductions in scholarships in multiple sports, a 1-year ban on women's tennis postseason play, recruiting restrictions in all sanctioned sports, recruiting restriction for international students, and vacating of wins by a particular ineligible women's tennis player. MISSING EXAMPLE. NCAA sanctions to a sports program for lack of institutional control in the absence of findings of major rules violations by the sports programs at an institution appear never to have been given before. So the sanctions by the NCAA on the football program's past wins, on scholarship availability, and on postseason play appear to be totally without relevant precedent. Consider the following hypothetical example of future events. At an NCAA member institution there are a chain of events at some non-sports-related campus location, documented in some form of official investigation, that include child abuse, failure to report child abuse, as well as conspiracy to cover up the events and the absence of their reporting, but in which none of the adults charged with ethical lapses have any prior or current ties to any sports program/s at the institution. Would it not be almost certain that the NCAA would place sanctions on the offending institution? And if so, what manner and degree of sanctions would seem appropriate?


CHILD ABUSE EXAMPLE. Our hearts go out to the victims of child abuse, and we pledge again to work in myriad ways to support appropriate actions and research to prevent child abuse, to help victims when it does occur, and to facilitate prompt and thorough reporting of any suspected instances. The NCAA based its sanction of $60 million, to go into a fund at PSU supporting work in prevention of child abuse, on the findings of the Freeh report, and it is apparent that these particular sanctions are on PSU as a whole for its particular failures of institutional control as regards child abuse and child abuse reporting.

Considering all the above, we believe that neither the NCAA process nor the specific NCAA sanctions concerning loss of football scholarships, official records of games won and lost (vacating of all football wins), and bans for 4 years on postseason football play fit fairly within the precedents of NCAA sanctions in the past for other football programs and other sports programs. These sanctions do injustices to the large number of student-athletes who were recruited fairly to the PSU football program, who achieved distinction on the playing fields and in classrooms, and who behaved with honor and responsibility. Here today we are not making a formal appeal but rather an informal and timely communication to the NCAA Board and to its Sanctioning Committee. We ask the NCAA Board and its Sanctioning Committee to reflect upon the above observations and to consider new actions that would lessen or remove the recently announced PSU football-specific sanctions. One obvious mechanism that would allow such new actions would be the understanding already in place (noted in public remarks on August 13, 2012 by Gene Marsh and PSU administrators) between PSU and the NCAA that "by mutual agreement" the parties could at any time enter into further discussions of the sanctions. END document for the NCAA

FURTHER QUESTIONS FOR DISCUSSION QUESTION 2. Should the Faculty Senate prepare and send a similar document to Big 10 officers? This would make sense because the Big 10 sanctioning statement basically echoes the NCAA sanctions (plus loss of about $13 million in Big 10 postseason play income) and like the NCAA erroneously states that President Erickson "accepted as factual" the entire Freeh report. QUESTION 3. How can the Senate, within existing PSU structures, best work to achieve a stronger role in university planning, monitoring, decision-making, and governance overall than it has achieved in the past? QUESTION 4. Should the Senate work toward a new and explicit signed memo of understanding between the PSU President and the Faculty Senate on when and how and on what issues the President will seek full input and consent from the Senate before making significant decisions? -5-

QUESTION 5. Should the Senate move toward more frequent consultation with the national organization of Faculty Senates, the Coalition on Intercollegiate Athletics (COIA), concerning suggested reforms and other issues? QUESTION 6. How can the Senate best work to modify certain aspects of PSU institutional structure so as to achieve a stronger Senate role in university planning, monitoring, decisionmaking, and governance overall than it has achieved in the past? QUESTION 7. Should the Senate secure funding for and authorization of a new faculty position, an Ombudsman for the Senate, who would have power to monitor all university matters including athletic programs and who would report solely to the Faculty Senate? When issues are raised or reports given by the Ombudsman to the Senate, the Senate would meet and decide in what ways to work with PSU administrators and the Board of Trustees to follow up on the Ombudsman's information. The Ombudsman for the Senate would add an important and independent layer of monitoring, compatible with other changes underway at PSU, to help insure appropriate procedures and actions on child abuse and rape issues and studentathlete eligibility and all other issues of institutional ethics, planning, and monitoring. (For related ideas on reform see Policy Statements from the Coalition on Intercollegiate Athletics, COIA)

Keith Nelson, Senator, College of the Liberal Arts