Obviously allegations of “payments, bonuses, and sham jobs” coupled with charges that academically “the goal was not to educate but to get [the best players] the passing grades they needed to keep playing” is a cause for concern for Oklahoma State (“OSU”) supporters. Further, it makes sense that one would think that such damning allegations of blatant disregard of the NCAA’s rules against paying players and academic misconduct as alleged in Sports Illustrated’s (“SI”) five-part investigative piece entitled Special Report on Oklahoma State Football would surely warrant NCAA stiff penalties.
However, according to the article, much of the alleged abuses occurred during the Les Miles coaching era 2000-2005 and “falls outside the NCAA’s four-year statute of limitations.” A statute of limitations is a legal doctrine that sets the maximum time after an event occurs that one can held liable for wrongdoing during the event. The NCAA’s statute of limitations, found in Section 32.6.3 of the NCAA by-laws, reads as follows:
“Allegations included in a notice of allegations shall be limited to possible violations occurring not earlier than four years before the date the notice of inquiry is forwarded to the institution or the date the institution notifies (or, if earlier, should have notified) the enforcement staff of its inquiries into the matter. However, the following shall not be subject to the four-year limitation:
(a) Allegations involving violations affecting the eligibility of a current student-athlete;
(b) Allegations in a case in which information is developed to indicate a pattern of willful violations on the part of the institution or individual involved, which began before but continued into the four-year period; and
(c) Allegations that indicate a blatant disregard for the Association’s fundamental recruiting, extra-benefit, academic or ethical-conduct regulations or that involve an effort to conceal the occurrence of the violation. In such cases, the enforcement staff shall have a one-year period after the date information concerning the matter becomes available to the NCAA to investigate and submit to the institution a notice of allegations concerning the matter.”
As applied to the allegations that SI asserts against OSU, the NCAA enforcement staff will first need to investigate and determine which, if any, violations occurred at OSU. If the NCAA determines that violations did occur, they will need to determine whether these violations occurred within the four years of the date the NCAA notice of inquiry was forwarded to OSU or the date OSU notified (of, if earlier, should have notified) the enforcement staff of OSU’s inquiry into the matter. If it is determined that allegations did actually occur, but fell outside the four-year statute of limitations window, the only way the NCAA could still penalized OSU is if the NCAA finds:
1. Involvement of a current OSU athlete;
2. Facts indicating a pattern of willful violations by OSU that began outside of the four-year window but continued into it;
3. Facts indicating a blatant disregard for the NCAA’s fundamental recruiting, extra-benefit, academic or ethical-conduct regulations; or
4. Facts indicating an effort to conceal the occurrence of the violation by OSU.
As a result, if I were an OSU supporter, I would not be very concerned about the possibility that the NCAA might seek to toll or suspend its statute of limitations in order just to penalize OSU for alleged payments by boosters, placement of athletes in easy courses, or even a bounty system, because those are “run of the mill” infractions that just would not warrant the extraordinary action of suspending the statute of limitations.
However, OSU supporters should be greatly concerned that the NCAA might invoke its right to disregard the statute of limitations if the NCAA finds an ounce of truth in the allegations that OSU “tolerated and enabled recreational drug use” and that OSU football coaches were basically pimping young women within the OSU hostess program in order to sign recruits. As we saw in the recent Penn State case, the NCAA swiftly, harshly, and publicly punished Penn State for conduct that, while not necessarily against NCAA rules, indicated a lack of institutional control and conspiracy to conceal illegal behavior.
Using the Penn State case as precedence, OSU’s NCAA penalties for “aiding and abetting” illegal (not just unethical or against NCAA rules) activity could result in a multi-year probation (Penn State received a five-year probation), the loss of dozens of scholarships (Penn State lost 40 scholarships over four years), a multi-year bowl ban (Penn State received four-year bowl ban), a fine in the tens of millions of dollars (Penn State was fined $60 million), and the vacating of all victories during the years the illegalities occurred (all of Penn State’s victories from 1998 through 2011 were vacated).
So, later this week when SI reports on the alleged school sponsored drugs use and prostitution. I predict the NCAA to pursue OSU, all “pistols firing!”
Damario Solomon-Simmons, Esq., M.Ed., is the managing partner of SolomonSimmonsSharrock & Associates law firm and a football letter winner at the University of Oklahoma. He can be contacted on twitter @solospeakstruth or firstname.lastname@example.org.