Arizona State Sports & Entertainment Law Journal

Mark Emmert asked for Miami. After yawning at Cam Newton last year, and slapping Ohio State ever so softly on the wrist earlier this year, the NCAA president reaffirmed that he was willing to slam the next major rule breaker. Then came Miami with its unfathomable NCAA abuses, a tailor-made call for the death penalty if there ever was one. To date, the bat remains glued to Emmert’s shoulder. Speculation is Emmert will back down from his strong statements and treat Miami like he did Newton and the Buckyes. It’s a shame too because until the NCAA is willing to punish its members severely, reform will remain a catchword and never a realization.

Colleges have never been more incentivized to cheat. Conferences are realigning with one purpose in mind: Leverage when negotiating the conference’s next TV rights deal. Adding better teams means more money. With such short-sighted objectives, one pattern becomes clear: Today’s success matters more than past success; win now and reap millions. It’s almost as if conference decisionmakers have a 17-year-old’s attention span—not remembering anything pre-2010. The examples are there of how quickly a school can change its image. In the mid-1990s, TCU was passed over by the Big XII; five years later, they were part-of the left-behinds in the WAC when the Mountain West was formed. Left for dead, TCU resurrected. In 2003, the Horned Frogs made a run at being the original BCS Buster. They fell short, but garnered enough attention at the right time. The Mountain West wanted to expand, and TCU was the hot property. Once in the MWC, TCU tortured those who once betrayed them, and TCU became a household name and appeared in consecutive BCS Bowls, success they turned into an invite to a BCS Conference. TCU is typical of how quickly a school’s fortunes can change in the conference realignment game. 

Utah is another example. In 2000, the Utes couldn’t give away tickets, a forgotten team in a forgotten conference; 10 years later, they are in the Pac-12. But the real risk with the super conferences is the chance for today’s realignment to become the permanent realignment. If a select few schools are to be categorized and appraised for the next few decades based on how they perform in the next few seasons, then it would be in a school’s best interest to cheat. An honest school may forego tens of millions of revenue each year while the Miamis and Ohio States of the world reap the windfalls of college football’s new fiefdoms.

Those strong incentives to cheat must be met with even stronger deterrents. The death penalty is the only penalty the NCAA has that poses a greater risk of loss to cheating schools than they have to gain under the incentives to cheat that have been created by this ongoing realignment.  Currently, the NCAA doesn’t pack much of a punch. The loss of a few scholarships, the missing of a few bowls is a small price to pay for remaining relevant and wealthy in college football’s changing landscape. The death penalty is currently the only NCAA penalty with any bite, yet NCAA regulators are unwilling to use it. Why? Because SMU was never the same after it was applied. There’s only one problem with that logic—SMU was exactly what they were before they cheated: Not good. OK, so they did regress somewhat: Going from mediocre in the ‘70s to wretched in the ‘90s. But still, if the point of the remedies in the law is to put a party back in the position they would have been without the lawbreaking, then the death penalty mostly worked with SMU. Moreover, Miami, clearly making a prima facie case for the death penalty to be applied, is not a school similarly situated to SMU. Miami has a long tradition of success, a strong fan base, and a more glamorous setting. Miami would bounce back from the death penalty much quicker. Mostly, though, the death penalty is the only way to cure cheating at Miami.

Severe sanctions then would seem to be the only solution to a problem that is becoming increasingly evident, increasingly mind-boggling. One can only hope that Emmert gets the bat off his shoulder. Until then, no punishment fits the crime.