Sunday, January 13

The NCAA's blind eye to Michigan State

While the NCAA had to fabricate a rule in order to sanction Penn State athletics, you don't have to read very far into the Division I Manual to find rules rules violations at Michigan State

Ray Blehar
January 13, 2019. 9:27 AM EST, Updated 1/14/19 at 4:49 PM EST

In July 2012, the National Collegiate Athletic Association (NCAA) announced draconian sanctions against Penn State University (PSU) based on allegations of a "lack of institutional integrity."  The move was unprecedented (and legally questionable) given that  a search of the NCAA Division I manual revealed that no such terminology or rule existed.

Evidence confirms that Emmert and the NCAA fabricated a rule in order to sanction Penn State

NCAA President Mark Emmert and other senior staff members fabricated the terminology in order to punish PSU for the acts of a Pillar of the Community sex offender who went undetected -- by everyone -- for decades.  However, when a similar situation occurred at Michigan State University (MSU) involving gymnastics trainer Larry Nassar, the NCAA turned a blind eye to its own rules to give the East Lansing school a pass.

The 2014 Division I manual cited numerous by-laws that the NCAA could have used as alleged violations in the Nassar case.  A person would have had to read all the way to page 3 to find them! Note that these regulations had been on the books for a long time, some for over two decades.

2.2 The Principle of Student-Athlete Well-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) 

2.2.3 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) 

The NCAA ignored them in the Nassar case -- and so did everyone else.

Media reports, citing so-called experts, stated the that the "NCAA by-laws address primarily recruiting and impermissible benefits" and that Nassar's criminal conduct was out of bounds.

They were correct on the latter.

The crimes of Nassar really weren't at issue in determining if there was a lack of institutional control.  The issue was how those at MSU handled complaints about him.

They were incorrect on the former because their knowledge was dated.

In October 2012, the NCAA revised its rule book (tacitly admitting its overstep at Penn State) to leave it open to interpretation on what could be considered a "severe breach of conduct."

The Penn State Overstep & NCAA Revisions

Emmert was hired as President of the National Collegiate Athletic Association (NCAA) in 2010 with the expectations of making revolutionary changes at the institution.  One of those changes was to change its reputation as a weak enforcer.

When the grand jury report of the Jerry Sandusky case became public, Emmert used the opportunity the case presented as a means to show the world it could be tough on a big time program.  CBS' Dennis Dodds reported that Emmert began formulating a plan to go after PSU while in the press box at the November 5, 2011 Alabama-LSU game.

As the email evidence from the Corman v. NCAA case revealed, the governing body of collegiate athletics knew very early on (in November 2011) that PSU had not committed any major violations. NCAA officials who researched the case found that the only thing that could have been construed as a violation happened in 1999 -- and that incident was outside the statute of limitations for enforcement. 

Even when it tried to use by-laws pertaining to conduct, it knew it didn't have a case.

Those facts didn't stop Emmert from trying to make a case.

Emails and other evidence revealed the NCAA briefed investigators from Freeh, Sporkin, and Sullivan (FSS) early January 2012 in an attempt to educated them on violations that would be considered a lack of institutional control (LOIC).   Despite the NCAA's efforts, FSS did not identify nor did it report NCAA violations during its investigation.

On July 17, 2011, the NCAA's General Counsel, Donald Remy, contacted the FSS on behalf of Emmert to set up a call with Louis Freeh.  At the same time, Remy asked why the report did not find any violations or conclude a LOIC.   Omar McNeil,who represented FSS, stated it was not within FSS's contract requirements to do so.   It doesn't take a genius to figure out that Emmert desired to have Freeh revise his report or make clear that PSU had a LOIC.

The call between Emmert and Freeh never took place.

The NCAA was left to fabricate a reason to sanction PSU and did so by stating that then-PSU President Graham Spanier was responsible for the integrity of the institution and that his alleged decisions in responding to incidents involving Sandusky and minor youths in 1998 and 2001 were contrary to the ideals of the NCAA.

However, the NCAA's reasoning and Consent Decree legally falls apart because the entire "integrity" argument was based on Spanier creating an atmosphere conducive to compliance with NCAA rules, otherwise known as institutional control.

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, including approval of the budget and audit of all expenditures. (Revised: 3/8/06)

No matter how heinous the acts of Sandusky were, they did not constitute violations of NCAA rules because nothing Sandusky did involved student-athletes nor did his actions have anything to do with athletic competition.   

The NCAA knew it overstepped and revised its by-laws in October 2012.

By-Law Revisions, Evidence Should Have Snared MSU

The NCAA broadened what could be considered a major infraction right after its decision against PSU and created at least three areas (my emphasis added) that should have been determined as rules violations against MSU.

19.1.1 Severe Breach of Conduct (Level I Violation). 
A severe breach of conduct is one or more violations that seriously undermine or threaten the integrity of the NCAA Collegiate Model, as set forth in the constitution and bylaws, including any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantage, or a substantial or extensive impermissible benefit. Among other examples, the following, in appropriate circumstances, may constitute a severe breach of conduct: (Adopted: 10/30/12 effective 8/1/13, Revised: 7/31/14) 

(a) Lack of institutional control

(d) Individual unethical or dishonest conduct, regardless of whether the underlying institutional violations are considered Level I

(h) Intentional violations or reckless indifference to the NCAA constitution and bylaws; 

Under the new rules, there were "appropriate circumstances" in the Nassar case to support that there was "reckless indifference" to the rules regarding safety and welfare of student-athletes at MSU.  Multiple gymnasts came forward in late 2016 (after Nassar had been fired) with accusations about Nassar to Klages.  In a move that can only be described as indifferent to the health and mental well-being of those athletes, she dismissed the claims and stood by Nassar. Then to make matters worse,  later asked the gymnasts to sign a card in support of him.

With regard to dishonesty, Simon and Klages have been charged with lying to investigators regarding what they were told about Nassar's conduct.  Both of these alleged offenses occurred in 2016 and are well within the NCAA's statute of limitations for infractions. 

Klages and Simon said they were not aware of Nassar's misconduct -- and were criminally charged for lying 

Finally, and most importantly, it is fundamental in any organization that employees report complaints up the chain of command.  Klages and other athletic department employees didn't report Nassar to their supervisors, and ultimately, to the athletic director -- clearly demonstrating a lack of institutional control.  To wit:
  • In 1997, Klages sat on reports  of complaints from Larissa Boyce and another gymnast about Nassar's invasive treatments.  Klages convinced them not to press the issue because of the consequences they might suffer as a result of going up against the famous doctor.  The reports stopped with Klages and were not shared with her supervisor.  Later, Klages would use Nassar's reputation as a recruiting tool.
  • In 1999, MSU cross-country student athlete Christie Achenbach complained to assistant coach Kelli Bert about Nassar's treatments.  Bert brushed off the complaint and did not report to the head coach.
  • In 2000, softball player Tiffany Thomas Lopez told athletic trainers Lianna Hadden and Destiny Teachnor Hauk about Nassar's invasive treatments.   Teachnor Hauk convinced Lopez not to press the issue and nothing went up the chain of command. 
  • Two years later (2002), Jennifer Rood Beford lodged a similar complaint with Teachnor Hauk talked her out of reporting Nassar.  Again, nothing went up the chain of command.  
In 2014, Spartan gymnast Amanda Thomashow complained about Nassar to the MSU Sports Medicine Clinic and the MSU police.   Those complaints resulted in the Title IX investigation that eventually cleared Nassar.  The fact that there was no records of earlier complaints undoubtedly impacted how Thomashow's complaint was viewed (i.e., as an isolated complaint).   Former athletic director, Mark Hollis, admitted that he was not informed of the Title IX investigation.

To be absolutely clear, the majority of the violations in this matter pertain to the fact that Klages and others took it upon themselves to decide if Nassar's treatments were legitimate rather than forwarding the complaints up the chain to the AD and then over to the MSU medical staff for a decision.

It is well established that it takes an accumulation of allegations from victims to build a case against a Pillar of the Community offender.  81 women filed criminal complaints about Nassar with MSU's police department and it is unclear how many of them made a prior report to someone at MSU.  Even without knowing the exact numbers, the known failures to report up and down the chain of command contributed to Nassar's ability to evade detection.

The NCAA's case for LOIC against MSU was ripe for the taking -- with far more evidence (and victims) than it had in the Penn State case.

Recall that the NCAA Consent Decree, based on the biased and erroneous conclusions in the Freeh Report, alleged that there was an "imbalance of power" and that the football program engaged "in active concealment" of reports of abuse  --  in spite of the fact that every known complaint against Sandusky was communicated to the athletic director, the senior VP of business and finance, and the University's legal counsel.  It is also a fact that every report known to PSU officials was shared with organizations outside the University who had the authority to prevent Sandusky from coming in contact with children.

Again, compare that to what happened to reports against Nassar at MSU.

It's obvious which institution had sports programs that concealed reports -- and which didn't. 

Emmert and the NCAA turned a blind eye to its own rules and played favorites. It gave former NCAA Executive Committee (EC) Chair Lou Anna Simon a pass.  As NCAA EC chair, Simon promulgated guidance specifically citing  by law 2.2.3 and directing how institutions should respond to abuse allegations and work with Title IX investigations.  Her institution failed miserably at both.

The irony (and hypocrisy) in this case is overwhelming.

When the NCAA let MSU off the hook in August 2018, it left open the possibility of re-opening the investigation.

“Should additional information become available, the enforcement staff will review this information with the institution to determine whether further inquiry is necessary.”

That additional information became public when Klages and Simon were charged with lying to investigators. If they are convicted down the road (and that's almost certain, especially for Klages), the NCAA has no legitimate excuse for not coming down on MSU.

Nassar's victims will demand it and so should everyone else.


  1. I dissent. The NCAA had no business in any of the above cases. I also note that the police had as much information as the college administrators, and they flay out whiffed.

    The MSU situation is similar to what happened at USC with their staff gynocologist. In fact, the entire medical school at USC was harboring drug addicts and sexual predators. Nothing to do with athletics except that some patients were athletes. Both MSU and USC fired their Presidents and are on the hook for hundreds of millions of dollars in damages. The Attorneys General for both California and Michigan are undertaking criminal investigations. USC has cleaned house in its College of Medicine, and the California Medical Board is under investigation for how it bungled the case. Justice will be done. And for real justice to occur, Mark Emmert should be charged with extortion.

    1. Gregory,
      You gotta love America because we all have the right to free speech and dissent. (I'm feeling exceptionally Patriotic for some reason right now).

      So, thanks for your comments.

      Like many others, you are fixated on Nassar's acts, which has absolutely NOTHING to do with institutional control. The institutional control issue comes about because Kathy Klages and athletic trainers did not forward complaints about Nassar to their BOSSES.

      I think you will agree that if an athlete is concerned about the legitimacy of a medical procedure (why is the doctor grabbing my butt and I saw him about a knee injury???), it is not up to the coach or an athletic trainer to render a decision on the appropriateness of the treatment. Instead, they should inform their boss and have that complaint addressed by appropriate persons. In this case, the reports would have gone through the AD and to the MSU Medical Staff.

      Reporting things up the chain is at the heart of institutional control (By Law 2.2.1).

      MSU should NOT be penalized for not being able to identify Nassar as a serial sex offender or for not stopping Nassar immediately. As I wrote, it takes a compilation of allegations and evidence to make a case against these types of offenders and the failure to report complaints from 1997 to 2002 helped Nassar evade detection. Moreover, had those complaints been on record, then the 2014 complaint about Nassar (Title IX investigation) would have obviously been handled very differently (instead of being handled by an isolated complaint).

      That's why Michigan State's case is so different from Penn State's. At PSU, all complaints went up the chain and outside the University. At MSU there was, to steal a phrase from Louis Freeh, "active concealment."