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  • Can the NCAA punish Michigan State despite its own arguably unclean hands in the school's sexual assault scandal? The answer is at the heart of why the organization might be better off ceding control in the case.
By Michael McCann
January 28, 2018

In law, courts occasionally decline to find a defendant at fault not because the defendant “didn’t do it” but rather because the plaintiff—the person who is accusing the defendant of wronging—has “unclean hands.” Sometimes the accuser shares some of the blame for the defendant’s wrongdoing. Other times the accuser has engaged in unethical or unlawful conduct related to the defendant’s wrongdoing. A judge might reason that it would be an injustice to reward this particular accuser. This is true even if the defendant really deserves to be punished.

Unclean hands may become an important dynamic in the NCAA’s investigation into Michigan State. The school may have violated NCAA rules in connection to Larry Nassar’s sexual assaults. Should the NCAA seek to punish Michigan State, the school could argue that the NCAA is in no position to evaluate wrongdoing or to assign blame. The NCAA, Michigan State could insist, has unclean hands: it is implicated in the same scandal and thus has an inherent conflict of interest. In fact, the NCAA may possess legal and financial incentives to see that blame is directed away from itself and toward other institutions—such as Michigan State. Arguably, then, the NCAA can’t objectively evaluate allegations against Michigan State. Perhaps the NCAA should even cede its enforcement authority in this particular controversy.

Are the hands of Emmert and the NCAA irreversibly stained by events in 2010?

The degree to which the NCAA ought to be blamed for the Nassar scandal has become a more prominent topic in the wake of a story published on Friday by The Athletic. Nicole Auerbach authored the story, which detailed a letter sent by Kathy Redmond, the founder of the National Coalition Against Violent Athletes, to NCAA president Mark Emmert in 2010. Among other important points, the letter highlighted that in the previous two years, there had been 37 reports of Michigan State athletes accused of sexual assault. The letter further charged that the school had not taken meaningful disciplinary action against any of these athletes. She was particularly critical of how Michigan State addressed—or failed to address—sexual assault accusations against two basketball players (Keith Appling and Adreian Payne).

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Redmond wrote the letter after having an in-person meeting with Emmert and Wendy Murphy. Murphy, who collaborated with Redmond on writing the letter to Emmert, is a law professor and attorney who has represented victims of sexual violence. During the meeting, Redmond articulated concerns about student athletes engaging in sexual violence and the lack of institutional controls to prevent such acts. Within those comments, Redmond says, she relayed to Emmert specific concerns about Michigan State President Lou Anna Simon’s ability to handle sexual assault accusations. Murphy also played a crucial role in the meeting, particularly in presenting on data and related analysis. In addition, Murphy would later write a follow up letter to Emmert in which she proposed a gender violence policy.

According to Redmond, Emmert assured her that he would make preventing sexual assault a top priority at the NCAA. Redmond had reason to believe Emmert’s assurances were genuine, or at least she had no particular reason to doubt them. Emmert had recently become the NCAA’s president after a successful tenure as president of the University of Washington. He had a clean slate from which to work.

It’s unknown whether Emmert agrees with Redmond’s characterization of their meeting eight years ago. Auerbach writes that, as of Friday afternoon, Emmert was “unavailable” for comment. It’s also unknown if Emmert, or an assistant, took notes from that meeting or if the discussion was otherwise memorialized, such as through an email summary. If the NCAA becomes a party to Nassar-related litigation, you can be sure that victims’ attorneys will demand that any notes or other reflections of this meeting be turned over.

According to subsequent reporting by the Associated Press’s Ralph Russo, Emmert was at least nominally responsive to Redmond’s concerns. Emmert wrote a letter to Redmond and Murphy about a month after they had met in person. In the letter, which the Associated Press obtained, Emmert enunciated a firm commitment on the part of the NCAA to develop programs that would address sexual violence. The letter, however, did not explicitly mention Michigan State or its officials.

Russo has also obtained an email sent by Emmert on Saturday to the NCAA Board of Governors. In it he stresses that Redmond was not in possession of any new information back in 2010. As Emmert depicts it, Redmond merely stressed allegations that were already in the public domain. In other words, Emmert’s characterization attempts to downplay the significance of his meeting with Redmond and implies the meeting was hardly revealing (though the meeting was memorable enough for Emmert to describe it in an email to the NCAA board more than seven years after the meeting occurred).

It should be noted that there is no record of Redmond mentioning Nassar in her conversations with Emmert. Her comments instead focused on structural problems in preventing on-campus sexual assault, including at Michigan State. It’s not surprising that Nassar’s misconduct wouldn’t have come up in a 2010 discussion. Although victims of Nassar say they complained to Michigan State trainers and coaches about Nassar as far back as 1998—only a year after Nassar had joined the school’s faculty—it would not be until 2014 until Nassar became a focal point of university investigation.

Relationship between Nassar, his victims and the Emmert’s response to Katherine Redmond

While Emmert might not have learned about Nassar until years after his meeting with Redmond and Murphy, it’s possible that more rigorous NCAA scrutiny of the Michigan State athletic department in 2010 would have stopped Nassar much earlier than in our timeline and thus spared some of his victims.

The university’s lack of oversight of Nassar was a critical problem: it supplied Nassar with the conditions in which he could grotesquely assault scores of young women, including student athletes at Michigan State. If in 2010 or 2011 the Michigan State athletic department had been pressured to develop new guidelines for investigating sexual assault, along with more deterring corrective actions and tougher sanctions, Nassar’s misconduct might have been detected a lot sooner. If so, Michigan State would have fired him long before 2016. In that alternative history, many young women would have avoided interacting with Nassar and they would have never been molested.

State differently, the NCAA didn’t need to know about Nassar in 2010 to have made a difference in how Nassar acted: if the NCAA had responded more aggressively to sexual assault allegations against Michigan State athletes back in 2010, the consequences of that response could have made it more likely that Nassar got caught or at least made it harder for him to inflict his abuse.

But Michigan State faced no external pressure to reform its practices. In fact, the NCAA did not formally launch an investigation into Michigan State until Jan. 23, 2018—more than seven years after Emmert met with Redmond.

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Impact of the Redmond letter on the NCAA investigation’s into Michigan State

The NCAA’s investigation into Michigan State’s handling of Nassar will take months, if not longer, to play out. The NCAA has already warned Michigan State of its contractual obligations under article 2.2 of the NCAA constitution and bylaw 20.9.1.6. Both of those rules concern an athletic department’s duty to protect student-athletes.

In its investigation, the NCAA will want to know what steps and procedures Michigan State had put in place related to Nassar’s interaction with student athletes. The investigation will likely be aided by federal and state lawsuits brought by Nassar’s victims against Michigan State and USA Gymnastics. These lawsuits (which I describe more fully here) could compel Michigan State to turn over sensitive records and force its current and former officials to testify under oath.

Eventually, the NCAA could find Michigan State to have violated NCAA rules. In that scenario, the NCAA could punish the school, perhaps by imposing an eight-figure fine (the NCAA fined Penn State $60 million for its handling of Jerry Sandusky) and by implementing a forfeiture of athletic scholarships. Some have called for the NCAA to impose the so-called “death penalty”—shutting down the Michigan State gymnastics program or even the entire Michigan State athletic department for a year or two.

But the Redmond letter could complicate the NCAA’s investigatory efforts. For starters, Nassar’s victims who are already suing Michigan State and USA Gymnastics might seek to add the NCAA as a co-defendant. The victims could cite article 2.2 of the NCAA’s constitution—the same article that the NCAA has warned Michigan State about. The article makes clear that “intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes.” It would seem this language ought to bind the NCAA as much as it binds the schools the NCAA oversees. It certainly wouldn’t be a stretch for lawyers representing the victims to raise this type of argument.

If the NCAA becomes a co-defendant, it would be awkward, at a minimum, for the NCAA to investigate a fellow co-defendant, whose interests are not all aligned with the NCAA. Michigan State and the NCAA could seek to blame the other, along with USA Gymnastics, for any institutional liability for Nassar’s crimes. Under these circumstances, it’s hard to imagine how the NCAA could credibly conduct an investigation into Michigan State. A court might be asked to review such a topic.

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Even if the NCAA is not formally brought into the Nassar victim litigation as a party, the litigation could reveal records that involve correspondences between Michigan State and NCAA officials. Those records could suggest that Michigan State was not adequately deterred by the NCAA in its handling of Nassar and other on-campus sexual assault cases. NCAA officials might also be subpoenaed in the litigation and forced to testify. In other words, the NCAA can’t really separate itself—or its fiduciary and legal interests—from the Nassar controversy.

Further, if the NCAA punishes Michigan State in a way that the university contends is unfair, the school could explore the viability of suing the NCAA. Michigan State might assert that the NCAA, given its controversial response to concerns about sexual assault cases at Michigan State, was too conflicted to fairly review the school. To be sure, it is very difficult for a member (here Michigan State) of a voluntary association (NCAA) to sue the association over how it administers internal rules. Normally the plaintiff in such a case must show the association acted in an arbitrary and capricious manner. It would be a very tall but perhaps not impossible task for Michigan State.

In addition to Michigan State, persons who are sympathetic to the school and who arguably have legal standing could sue the NCAA. Following the NCAA’s punishment of Penn State, Penn. Governor Tom Corbett, Penn. State Sen. Jake Corman and Penn. Treasurer Rob McCord filed lawsuits against the NCAA (and in one of those lawsuits, Penn State, which signed a consent decree with the NCAA, was also a defendant).

Given this potentially tangled web, the NCAA might defer to other institutions to do the bulk of the Michigan State investigation. Michigan State has asked the Michigan State Attorney General’s Office to conduct a thorough investigation. Perhaps the NCAA will rely on that investigation more so than its own. It might be wise to do so.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

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