Sports Law Development of the Week: NCAA Clears Michigan State of Violations in Nassar Case

By: Cameron Miller

Last week, Michigan State University (MSU) athletics department tentatively escaped further consequence for its role in the Larry Nassar scandal, which had already lead to the resignation of the school’s athletics director and president and a $500 million settlement with the disgraced doctor’s victims. In a letter dated August 29, NCAA Vice President of Enforcement Jonathan Duncan wrote to MSU’s athletics director, Bill Beekman, saying there was no “need for further inquiry” into whether Nassar’s conduct, which included abuse of then-current MSU athletes, or the University’s response (or lack thereof) violated NCAA rules.

The letter was a culmination of a months’ long back-and-forth between the institution and NCAA headquarters, which was initiated in January 2018 after it was revealed that Nassar’s victims included MSU athletes. On January 23, then-NCAA Executive Vice President Oliver Luck wrote to then-MSU athletic director Mark Hollis to decry Nassar’s “heinous and appalling assaults” and request that the institution send the NCAA “information regarding Nassar’s actions, his role as a team physician, affected student athletes, operation of athletic department practices or policies, remediation efforts or involvement of those on campus, inside and outside the athletics department.” Luck reminded Hollis that it was the institution’s duty to self-report suspected violation of NCAA rules and asked that the school respond “in a timely manner,” notwithstanding the other then-ongoing investigations and legal processes.

Two months later, on March 22, MSU, through its outside counsel Bond Schoeneck & King (known for their high-profile representations in NCAA matters), responded to Luck’s letter. The school proclaimed that its investigation and analysis “[found] no NCAA rules violations.” The letter also provided information on the extent of Nassar’s abuse and the University’s analysis of Nassar’s conduct under NCAA bylaws:

• At the outset, the letter noted that Nassar “was never an employee of MSU athletics.” That distinction is key, as some NCAA bylaws apply only to athletes, athletic department employees, institutional administrations, and others who are “representatives of [the institution’s] athletics interests.”
• According to MSU’s review, by March 22, 2018, 267 individuals had identified themselves as Nassar victims. Of those, 25 were MSU athletes at the time of the abuse.
• MSU evaluated Nassar’s conduct under at least the following bylaws: 16.11.2 (prohibiting athletes from receiving “extra benefits”); 13.2.1 (prohibiting institutional staff members from providing inducements/impermissible benefits on the basis of athletics ability); 10.1-(e) (prohibiting providing athletes with banned substances, supplements, and “medications…contrary to medical licensure”); and 20.9.1.6 (“The Commitment to Student-Athlete Wellbeing”). It evidently found nothing in the record to substantiate a breach of those codes.

Other potentially relevant NCAA bylaws include other language of bylaw 10.1 that characterize “[r]efusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution” and “[k]nowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation” as unethical conduct. Only time will tell whether or not MSU has been fully forthright in its disclosures to the NCAA. If it is found to have withheld material information, the NCAA’s Committee on Infractions could impose a variety of different penalties, including show-cause orders for administrators.

Another possibly applicable bylaw is 19.01.5, which concerns conduct by “[i]ndividuals employed by or associated with member institutions for the administration, the conduct  or the coaching of intercollegiate athletics.” The “moral values” of those persons, the bylaw states, “must be so certain and positive that those younger and more pliable will be influenced by a fine example.” Whether Nassar qualifies as an “individual[] employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics” is unclear, though it seems likely. MSU coaches or athletic trainers who either knew or were informed of Nassar’s conduct and did nothing to report or remediate it could also have violated 19.01.5. The larger issue, however, is whether that bylaw is subject to enforcement procedures. MSU determined that similar aspirational language in bylaw 20.9.1.6 was not.

The same question arises in bylaw 2.2.3, which provides that NCAA member schools are to “protect the health of, and provide a safe environment for” its athletes. MSU was also encouraged to “provide an environment that fosters…safety…” It is unlikely that violations of 2.2.3, to the extent committed by MSU, are actionable under the NCAA’s current enforcement system.

The letter also memorializes MSU’s and the NCAA’s mutual understanding that Luck’s letter was neither a Notice of Inquiry nor Notice of Allegations, two documents that would have initiated the NCAA’s formal enforcement process. It then notes that the bylaws cited in the Luck letter purportedly obligating MSU to report information regarding “possible” violations were incorrect interpreted; MSU’s interpretation is that “those legislative provisions require member institutions to report known violations.” (emphasis added)

MSU’s letter concludes by promising to track the various legal and investigatory actions regarding Nassar and inform the NCAA of any potentially violative conduct.

After several months of likely NCAA-MSU cooperative consultation and further review, the NCAA’s August 29 letter implicitly accepts the University’s position that current facts do not substantiate any rules violations. Although the NCAA’s decision to “clear” MSU has been met with some criticism, the Association’s missteps in the Penn State-Jerry Sandusky matter show the immediate negative publicity of not involving itself in matters outside its purview may be preferable to overstepping its jurisdictional bounds. In the Penn State matter, the NCAA eschewed its normal enforcement and infractions process to sanction the school for the cover-up of the conduct of former football coach Jerry Sandusky (both of which were arguably not in violation of NCAA rules). The embarrassing rescission of the Penn State penalties and the resulting ridicule of the NCAA’s enforcement division may well have deterred the Association from taking similar action against MSU.

The NCAA’s August 29 letter also addresses a collaborative inquiry into whether separate allegations concerning Michigan State’s handling of student conduct allegations involving football and men's basketball student-athletes might have violated NCAA rules. There, the University was accused of failing to adequately investigate sexual misconduct claims lodged against football and men’s basketball players and allowing athletic department officials—including former athletic director Hollis—to become involved in conduct matters involving athletes. If true, both the failure to act and intervention could have violated NCAA rules, including those concerning extra benefits (Bylaw 16.02.3). Evidently, the joint MSU-NCAA review of those allegations “has not substantiated violations of NCAA legislation.”

While both developments outlined in the NCAA’s recent communications are good news for those seeking a return to normalcy at Michigan State, they also highlight the self-imposed limitations of the NCAA’s willingness to protect its athletes and the stark dichotomy of that self-limitation with the Association’s founding mission.

Cameron Miller is a 2016 graduate of Stanford University and earned a Master's in Sports Law & Business from Arizona State University in 2017. He is the Sports Lawyers Association's Research Assistant and is a first-year law student at Georgetown University.