Ohio St and Institutional Control

Mr Pac Ten
Posted Mar 10, 2011

Collegefootballnews' Matthew Smith Looks at the Ohio St Scandal: Should Ohio St Get Hit with Lack Institutional Control?

As almost all of you are familiar with, Ohio St was hit with a major scandal in late 2010 when multiple players were found to have been involved with selling memorabilia to a tattoo parlor owner. And then the scandal got far worse when it was discovered that their head coach, Jim Tressel, had been informed (to some degree) about the violations well in advance of the 2010 season, failed to inform the compliance department, chose to play his players knowing they could have been ineligible, and then lied to the NCAA about his knowledge, both before the 2010 season and during the NCAA investigation ( Ohio St has agreed to these charges, though they were less explicit about the violation inherent in playing people knowing that they could have been ineligible).

So given all that, could Ohio St actually get hit with the dreaded lack of institutional control? Let's break it down, using the publicly available document "Principles of Institutional Control as Prepared by the NCAA Committee on Infractions" (link here) (note that I am NOT a lawyer, so am merely providing a layman's reading of the rules, and could VERY well be wrong in my interpretations):

Section B of this document specifies a number of "outs", provided the violator is "an individual who is not in charge of compliance". Unfortunately, NCAA bylaw (link here, page 50) says the following: of Head Coach. It shall be the responsibility of an institution's head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach. (Adopted: 4/28/05)
In other words, unless I'm totally misreading the rules, Jim Tressel, as a head coach, is in charge of compliance. So all of the section B "outs" become irrelevant. On to section C, "Acts that are likely to demonstrate a lack of institutional control."

1. A person with compliance responsibilities fails to establish a proper system for compliance or fails to monitor the operations of a compliance system appropriately.
Ohio St may be safe from this one, so long as they can explain why their compliance department couldn't figure out Jim Tressel's violation while they were investigating back in December.

2. A person with compliance responsibilities does not take steps to alter the system of compliance when there are indications the system is not working.
I think Ohio St should be safe on this one.

3. A supervisor with overall responsibility for compliance, in assigning duties to subordinates, so divides responsibilities that, as a practical matter, no one is, or appears to be, directly in charge.
I think Ohio St should be safe on this one.

4. Compliance duties are assigned to a subordinate who lacks sufficient authority to have the confidence or respect of others.
I think Ohio St should be safe on this one.

5. The institution fails to make clear, by its words and its actions, that those personnel who willfully violate NCAA rules, or who are grossly negligent in applying those rules, will be disciplined and made subject to discharge.
This one's a tough one for Ohio St. Thanks to the press conference, Ohio St made it pretty clear that, despite contract language specifically saying that they could fire Jim Tressel for exactly what he did, that they had no interest whatsoever in doing so. And, in fact, their letter to the NCAA re-established this position. I could very well be wrong, but by taking this position, both officially and publicly, I think they've put themselves in danger on this front.

6. The institution fails to make clear that any individual involved in its intercollegiate athletics program has a duty to report any perceived violations of NCAA rules and can do so without fear of reprisals of any kind.
I'm going to go ahead and say this one applies. Unless there actually was some sort of federal directive to keep it quiet (note that there is ZERO substantiation of this in Ohio St's NCAA letter, and you'd think it would be there if it existed).

7. A director of athletics or any other individual with compliance responsibilities fails to investigate or direct an investigation of a possible significant violation of NCAA rules or fails to report a violation properly.
This is the big one. Jim Tressel, as a person with clear compliance responsibilities, "fail[ed] to investigate or direct an investigation of a possible significant violation of NCAA rules [and] fail[ed] to report a violation properly."

8. A head coach fails to create and maintain an atmosphere for compliance within the program the coach supervises or fails to monitor the activities of assistant coaches regarding compliance.
I think Ohio St should be safe on this one.

So to this point, Ohio St is vulnerable on three of the eight indicators of lack of institutional control, and potentially vulnerable on a fourth. I'm not going to comment much on the potentially mitigating factors, because I don't have the level of knowledge specific to Ohio St needed to evaluate them (though I have a tough time thinking they do well on #9). So does that mean Ohio St should get hit with lack of institutional control? It's tough to say; I don't have the knowledge of NCAA investigations and determinations to say one way or the other. However, it seems to me that, at the least, the NCAA COULD make that determination.

And that's just from the information made available so far. There are a number of other things that could very well make things worse, some monumentally so:

If Ohio St's compliance department can't come up with a VERY good reason why they didn't figure out Tressel's violations back in December. One of the big things the NCAA hit USC with is the idea that they should have known about Reggie Bush's violations. Well, during the December investigations, Ohio St should have known about Tressel's violations. In fact, they should have investigated everyone. If a simple email search for "Eddie Riffe" or "tattoo parlor" would have popped up some of the emails (and it would have; credit to SBNation OffTackleEmpire for this idea), Ohio St needs to be able to explain why they didn't conduct such a search. Failing to do so would seem to by itself open them up to failure to monitor, and that's on top of everything else. Needless to say, if they did find something and chose to bury it (and that comes out), they're in a world of trouble.

If Jim Tressel had been given other emails about other violations over the years. At some point, that question is going to be asked as well. If this was a pattern and not an isolated incident, this is going to get a LOT worse. It's unclear whether anyone has gone over Jim Tressel's email account for all his correspondence with this lawyer, or indeed whether anyone has gone over his email account for all his correspondence with anybody. In fact, if Ohio St has chosen not to do this, that could very well be argued as failure to monitor. Certainly there's cause to suspect that there could be more skeletons in the closet than just this one incident.

If there are even more major player violations than have already been reported. Were the player violations really all due to one tattoo parlor? Maybe, but maybe not. It's at least plausible that there's more on the player side than just what we know so far, especially given the other incidents involving the football program over the last decade or so (link here).

If Tressel actually HAD reported the violations, and this is a massive cover-up. This one strikes me as a reach, though there is video that's at least slightly suggestive ( link here). Needless to say, if this is true and it gets found out, the NCAA starts at lack of institutional control and works its way up.

Now, it's certainly possible that absolutely nothing else will ever come up beyond what Ohio St has admitted to so far. But even so, it's at least possible that the NCAA could hit them with the big hammer, especially if they're motivated to make an example out of Ohio St. Which they very well might be, given the public reaction to both this scandal and the flexibility afforded Ohio St's players for the Sugar Bowl, as well as Mark Emmert's comments about holding head coaches to at least as high of a standard as players ( link here), as well as being tougher on rules violators in general ( link here). And if they want to, I think that the rulebook gives them the justification they'd need to hit Ohio St hard, even if nothing else does come up. At the least, it seems difficult to believe that the NCAA would choose not to substantially increase the self-imposed penalties that Ohio St asked for, and I would think that some level of program-wide penalties would apply, though I would guess they wouldn't be large penalties (perhaps on the order of 5-10 scholarship losses for 1-2 years).

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