I've been meaning to comment on this. I think Ohio State did a good job in their response to the NCAA, and they are right to point out, as they do at considerable length, that the violations in question were unknown and unknowable to the university and its compliance staff due to Tressel's unethical behavior.
With that said, what OSU did not do, although they claimed to, was show a commitment to compliance. When a coach engages in unethical conduct in the NCAA sense, the right thing to do from an NCAA standpoint is to dismiss him in reasonably close proximity to the unethical conduct being established beyond a reasonable doubt. That happened on January 16th, when Tressel acknowledged to the university that he knew of the potential sale of memorabilia by several OSU football players in violation of NCAA rules. He also admitted knowing it was a violation of the rules, and that he violated his duty to the university under NCAA Bylaws to inform them of the potential rule-breaking.
At that point, or shortly thereafter, Ohio State should have known that Tressel signed a knowingly false statement when he attested that he knew of no NCAA rules violations on the university's certification of compliance form back in September of 2010. It is not as though there was some reasonable doubt about Tressel's culpability. He:
- Admitted to the emails that were discovered, admitted that he knew he was supposed to disclose them to his employer, and admitted that he deliberately did not do so;
- Signed a document required by the NCAA Bylaws that he knew to be false.
- Admitted knowingly allowing players that were likely to have been ineligible by reason of their rule-breaking to play, thereby almost certainly voiding the entire Ohio State football season.
It doesn't matter what venue this could be examined in. These things are facts, cold, hard and bitter, and Tressel was unquestionably guilty of the greatest of NCAA sins -- unethical conduct. The facts leave no room for doubt, and despite Tressel's claim of an ethical dilemma, there really was no such dilemma, something he could have discovered with only the most casual of due diligence -- i.e. asking any competent attorney.
If Tressel knew enough about the law to think of the possibility of a charge of obstruction of justice against him, any reasonable person would have immediately retained or contacted an attorney to discover his potential liability, which in this case was non-existent as a criminal matter. After all, the communications were the property of OSU, not Tressel.
Because of the NCAA's lack of subpoena power, it takes lying or other forms of deception by its member universities, their employees and players particularly seriously. Ohio State should know this, and they showed an astonishing amount of indifference by taking months to get rid of Tressel. Then, to have withdrawn the $250,000 in liquidated damages for violating NCAA rules, and awarding Tressel his June salary and allowing him to retire so he could be "a Buckeye for the rest of his life," OSU showed actual contempt toward the NCAA's treatment of the unethical conduct charge.
When I say that Ohio State should have known this, I mean it in the most literal way. OSU is still under a repeat offender penalty enhancement for basketball program violations in 2006 which also included the unethical conduct charge against former coach Jim O'Brien. O'Brien was immediately fired after the discovery of the violations, but later won a civil claim worth $2.2 million against the university, where the judge claimed that according to O'Brien's contract, the violation wasn't serious enough for him to be fired.
Whether or not that judgment was correct is not for me to say, and perhaps it informed OSU's handling of the Tressel matter. If so, they did not say that in their response, and I would expect that the university drafted Tressel's contract with more care after the O'Brien debacle. If not, then they deserve what they get after having been burned once.
What Jim Tressel did was a conscious, egregious violation, and OSU should have shown more offense to his actions by taking a harder line than they did. OSU's two-game suspension of Tressel (which Tressel himself requested to extend to five) was a very weak response to a serious matter. The NCAA will not fail to notice OSU's gentle treatment of Tressel, and I think they are likely to impose additional penalties in the form of something like a one or two-year bowl ban.
With that said, I think the NCAA should avoid a "Failure to Monitor" or "Lack of Institutional Control" finding. The facts do not seem to support either one, and for the NCAA to create one or both out of thin air in order to enhance its penalty against OSU would only damage its credibility. However, I do think an enhancement could be justified under the repeat offender provisions. It is clear that OSU has more problems with their leadership than their compliance department, and that would be a better way to highlight that failing.
I also agree with what some have suggested, that the NCAA should generally hold institutions harmless (to a greater degree,at least) for violations about which they could not have reasonably known. In this case, it was not a failure of the compliance department or any part of the school's monitoring program that I can see. As Kentucky fans know all too well in connection with Calipari's association with the Marcus Camby and Derrick Rose scandals, and Duke fans know in connection with Corey Maggette, players can act unethically and keep it hidden for a long time despite the best efforts and intentions of the coach and the school. Based on the facts that have been disclosed, OSU falls into this category, and absent their unfortunate actions vis-a-vis Tressel, their self-imposed penalties were reasonable and sufficient.
Tressel did a great evil to himself, his former university and to college sports, and the NCAA should crush him for it. It should also smack OSU around a bit more for allowing themselves to believe, as they apparently do, that they are "too big to fail." I agree with OSU that their culpability in the actual violation was pretty much limited to the imputed responsibility every institution has when one of its employees becomes a bad actor. But their attempt to retain Tressel and then to give him a soft landing is alarming, and will likely produce a sharp response from the NCAA. That is, unless the NCAA considers Ohio State "too big to fail" also.
Tennesse's situation is very similar in form to Ohio State on the facts regarding unethical conduct by Bruce Pearl. It will be interesting to compare and contrast the two public reports once they come out.