Every time something new surfaces in the Baylor scandal, a question follows. Where is the NCAA? Another question typically follows that one. When is Baylor getting the death penalty?
Let’s answer both straight away.
1) The NCAA is exactly where it has been in most cases that involve potential violations of state and federal law but no known violations of NCAA rules. It is out of its depth.
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2) Baylor—specifically Baylor football, because why punish the track team?—is not getting the death penalty.
This may enrage you if you’ve read the accusations of gang rape, victim shaming and a cover-up that went to the top of Baylor's athletic department detailed in a civil suit served upon the school Tuesday by attorneys for a former Bears volleyball player. If even a fraction of what is alleged is true, those responsible should face serious punishment from every organization that governed them while employed at Baylor.
But they won’t. Sure, Baylor fired coach Art Briles and president Ken Starr and forced out athletic director Ian McCaw. But none of them is going to jail. In fact, Briles got paid millions to go away and keep his mouth shut. (He didn’t do either but still has the money.) McCaw, meanwhile, got hired for the same job at Liberty University. The NCAA, meanwhile, has done nothing because it can’t do anything.
Will the NCAA punish the Ole Miss football program for the distribution of an alleged $37,310 in cash, goods and services to players and recruits? Sure. The NCAA has rules against paying people for being good at a sport. But it has no rules against any of the awful things that happened at Baylor. States have rules against those things. So does the federal government. The NCAA does not.
This explanation will prompt another question. But what about Penn State? The answer is NCAA president Mark Emmert screwed up with Penn State in 2012. Led by Emmert, the NCAA sidestepped its normal disciplinary process to hammer Penn State’s football program with sanctions following the Jerry Sandusky scandal. Emmert caved to public outcry without considering whether his organization’s own rules even allowed the punishment. Spoiler alert: They probably didn’t. After Pennsylvania's treasurer and representatives of Joe Paterno's estate sued, the NCAA wound up walking back the penalties, and the organization was further embarrassed when Oregon State president Ed Ray, the chair of the committee that issued the penalties, admitted he couldn’t even be bothered to read the Freeh Report, the investigation upon which the sanctions were based, while on vacation.
So that’s why the NCAA won’t hammer the Baylor football program for acts far more heinous than people (allegedly) giving people money for being good at football at Ole Miss or people (allegedly) creating fake classes so some athletes could keep playing sports at North Carolina. The NCAA, an organization made up of universities with rules made by the universities, is not equipped to handle things that matter far more than the trifles it typically polices.
Which brings us to the most important question: Why isn’t it?
The schools, which once banned cream cheese for bagels, had a chance after the Penn State debacle to alter the NCAA’s rules to allow the organization to take on more serious matters. They could have added language to their Unethical Conduct bylaw—their catch-all rule—that would have made athletic department employees who failed to report an allegation of violence (sexual or otherwise) against another person by anyone under their purview guilty of a violation. The schools could have added language that any program that benefitted from such a cover-up can be hit with further sanctions. Such changes, which could have been made within a year or two of the Penn State mistake, might have allowed for NCAA sanctions in the Baylor case* depending on the timeline.
*The NCAA could conceivably punish Baylor for violations of recruiting or extra benefit rules. There certainly were plenty of accusations on those fronts during the Briles era, but nothing has been proven at this point. When one Baylor basketball player murdered another in 2003 and coach Dave Bliss told his players to lie about the dead player, the NCAA did punish the program. Not for the truly awful stuff, but because Bliss was paying two players—including murder victim Patrick Dennehy—to act as walk-ons to get around NCAA scholarship limits.
But the leaders of the schools chose not to give the NCAA that power. Why? Perhaps they didn’t want the NCAA’s occasionally inept enforcement department messing around in cases far more important in the grand scheme than whether a coach made too many phone calls to a recruit. Perhaps they felt the existing state and federal laws were enough. Perhaps they feared the next scandal would pop up at their school and didn’t want to give the NCAA the option to gut a cash cow football program.
Former Baylor athletic director McCaw may have felt that way. According to the newest suit, he was alerted to the gang rape allegation in 2013, about a year after the incident that prompted it. According to filing by members of Baylor’s board of regents in response to a suit filed by one of the staffers fired in the wake of the scandal, the investigation by law firm Pepper Hamilton found that McCaw claimed to Baylor’s Title IX coordinator in 2015 that he hadn’t been alerted to any accusations of gang rapes by football players. In that same filing, McCaw also is accused of texting “That would be great if they kept it quiet” to Briles with regard to a police investigation (which was kept quiet) into a Baylor football player accused of assaulting and threatening a non-athlete in a different case.
If the schools had been willing to alter their rules, the NCAA might have been able to investigate and then haul McCaw before the Committee on Infractions. If what is alleged is true, that group could then hand down a penalty that would render McCaw effectively unemployable in college sports. The same could be done with Briles. (I’d say no one in college sports would be dumb enough to hire Briles at this point, but someone was dumb enough to hire McCaw.)
So if you’re mad that the NCAA isn’t going to punish Baylor for one of the worst scandals in the history of college sports, contact your favorite school president. Tell him or her you want the NCAA to have some power to investigate and punish in these cases. The people in charge of the schools are the only ones who can decide whether the NCAA will have any power when the next scandal hits. Until then, the organization will sweat the small stuff while the big stuff goes largely unpunished.