The Law Of Unintended Consequences And The NCAA’s Oklahoma State Decision

Just last week, the NCAA handed down a ruling concluding its ongoing investigation into the Oklahoma State football program. This investigation was put into motion primarily on the basis of a salacious five-part 2013 Sports Illustrated article that alleged numerous misdeeds over the course of multiple coaching tenures, and attempted to chronicle the anatomy of a college football program gone wild.

Oklahoma State immediately questioned the veracity and relevance of the report, and the NCAA eventually agreed, including only three issues in the formal Notice of Allegations it sent the school last fall. On April 27^th, the NCAA handed down some relatively light discipline – relative in large part to whether you hail from Stillwater or Norman, I suppose – putting the school on a year-long probation that does not include a bowl ban and only imposes light recruiting restrictions, as well as assessing a fine that would have been nominal even to the Stillwater High School Pioneer Football Program (I’ve checked; that’s a real thing, and their stadium is amazing).

Why Write Rules If You Don’t Follow Them?

The merit underlining the probationary zeal of the NCAA here really isn’t what interests me, though. In fact, the seemingly harshest penalty levied to the Cowboy football program is the forced disbandment of its Orange Pride hostess program, an all-female group directed by the football program to host players during recruiting events (to borrow a phrase from John Oliver, we’ll table the discussion of how this is still really a thing in 2015 to a later date). Rather, I read the attendant articles detailing the penalties last week, and immediately thought two things. First, it’s almost unfathomable that no uniform substance abuse policy exists amongst NCAA member institutions. And second, that the NCAA, with this ruling, may have unwittingly provided a kind of safe harbor for nefarious athletic departments everywhere.

With its ruling, the NCAA Committee on Infractions  determined that OSU had not adhered to  its own written policies and procedures for student-athletes who tested positive for banned substances from 2008-2012, allowing five football players that had failed drug tests to compete on multiple  occasions. This affected the competitive balance, sure, but it’s hardly the stuff Bond villains are made of.  The most incredulous part of that statement isn’t that a few college students took a walk on the wild side, but that the authority for the creation and enforcement of an athletic department’s substance-abuse policy is ceded entirely to that individual university.

For its part, Greg Christopher, the Xavier AD and chief hearing officer in the OSU matter, defined the NCAA’s role in this issue stating:  “[A] membership association … is probably not in a place of dictating to individual institution’s HR policies or specific drug testing policies … We expect institutions to guide themselves. And at the end of the day, those drug testing policies are really in place more from a standpoint of student athlete welfare and making the best decisions for student athletes.” And nothing about that stance immediately shocks the conscience, especially given the associated administrative burden of doing things at a more global level.

But when we are besieged almost daily by coaches and athletic department officials who reportedly clamor for a level playing field to judge all teams equally – All conferences need to play the same number of league games!  All conferences must have a championship game!  – couldn’t granting oversight in this arena to those who would derive the most immediate benefit be seen as something that is fundamentally incompatible with equal competition?

Failure To Monitor Some Of The Program

Further, the wording of the NCAA’s statement in explaining its decision not to  find OSU culpable for failing to monitor its football program – by far the most serious allegation – fell a bit short. In explaining his Committee’s rationale, Christopher stated, “We didn’t believe there was a failure to monitor, per se, because they had a compliance program for a drug policy. They had a drug plan administrator. They had monitoring in place for Orange Pride. But again, you could say the monitoring was there, but it was ineffective.”

Making no judgment as to how that statement applies to what actually went on at OSU – as I’m clearly not privy to the lions’ share of the evidence the committee considered – it’s nevertheless concerning that the message the NCAA seemingly is sending could reasonably be inferred as “The program, and not the adherence thereto, is what’s important here.”   I would argue just the opposite, in fact (and have seen ten years’ worth of failed “initiatives” that started out as grand ideas in both law firms and the corporate world to support my instinct here).  Otherwise, mustache-twirling athletic officials seeking to exploit every last drop of competitive advantage have just been given a safe harbor of grand proportions. That is, simply invent and codify a program; employ a few functionaries as the various “administrators;” ignore the natural and foreseeable results from a lack of oversight; and then point in that program’s general direction when the eventual NCAA investigation shows up on your doorstep and leaves you with one-year’s worth of probation. Perhaps this is an overly cynical interpretation, but when the dollar values at stake are what they are, it’s my thought that you leave as little to chance as possible.

None of the above is meant to minimize the lack of transparency and cooperation that OSU showed throughout this process.  The NCAA took every opportunity to laud the University for cooperating fully from the outset, as opposed to, say, obfuscating its efforts at every turn and denying the existence of a completely fabricated university department for eighteen-plus years (speaking in hypotheticals, of course).  The central thesis here actually has very little to do with the Oklahoma State football program itself, of the individual merits of this case, even. Rather, with the recent emphasis in college football on making sure that everyone is playing by the same rules, the two above areas simply jumped out at me as places ripe for the unsavory to manipulate.

Good thing this is big-time college athletics and such shenanigans are as rare as the California condor (the bird, not the fictional, original 90210 college mascot).