First appeared in BOXSCORE
By Aron Solomon
I ended my most recent segment this week on ESPN radio by commenting on the emerging Northwestern University football scandal. The last thing I said was that I think the NCAA’s “death penalty” needs to be considered in this situation.
The death penalty is the harshest penalty that an NCAA member school can receive, and it involves a ban from competing in a sport for at least one year. The term “death penalty” is obviously used as an unfortunate and anachronistic reference to capital punishment.
This ultimate penalty has been implemented only five times in NCAA history. In cases of particularly egregious misconduct, a school can also be stripped of its right to vote at NCAA conventions for four years. The five teams that have been given the death penalty to date are:
1. The University of Kentucky basketball program for the 1952–53 season.
2. The men’s soccer team at Morehouse College in 2004.
3. The men’s tennis team at MacMurray College in 2005.
4. The men’s swimming and diving team at Centenary College of Louisiana in 2008.
5. The Southern Methodist University (SMU) football team in 1987.
Despite the NCAA’s apparent wariness about imposing the death penalty, the NCAA has indicated that the SMU case is its standard for imposing the death penalty. It has stated and reasserted that it will only use the penalty in cases involving violations as profoundly egregious (my words, not the NCAA’s) as those found at SMU.
SMU was given the football death penalty in 1987 due to a series of severe and repeated violations of NCAA rules. The decision to impose the death penalty was a response to the egregious nature of SMU’s violations and their disregard for NCAA regulations.
The SMU football program had been involved in a long-standing pattern of major violations, including paying players through a slush fund known as the “Pony Express.” This fund was used to provide players cash payments, violating NCAA rules on amateurism and improper benefits.
Despite previous sanctions and warnings, SMU continued to engage in these violations, demonstrating a lack of institutional control over its football program. The NCAA believed that the previous penalties were insufficient to deter SMU from further violations, leading to the unprecedented decision to impose the death penalty.
As a result of the death penalty, the SMU football program was forced to cancel its entire 1987 season and was prohibited from competing in any games. The team also faced severe scholarship reductions, recruiting restrictions, and a ban on bowl game appearances.
If we compare and contrast the severity of the SMU violations with the current Northwestern allegations, any impartial person would conclude that they are clearly in the same ballpark. The hazing allegations within Northwestern University’s football program involved coerced sexual acts, forced participation, nudity, and sexualized acts of a degrading nature. The details are readily available on social media and Google – no need to deep-dive into them here as they are remarkably disturbing and would come with multiple trigger warnings for readers.
It is critically important to remember that anytime a death penalty conversation comes about, investigators imagine the facts presented in their most damaging possible light to consider whether there is even a possibility that the situation rises to the death penalty standard.
Again, this can’t be overemphasized. In considering the range of punitive possibilities, the governing body, here the NCAA, needs to imagine at least the fact set as presented in the most negative light for Northwestern.
If that’s what the NCAA does here with the Northwestern football scandal, I fail to see how a conversation about the death penalty isn’t warranted.
The worst possible light in the current situation is a systematic process of hazing that rose to the level of sexual abuse and assault that Northwestern University and its employees knew or should have known about.
The reality may be even worse, as the facts militate at this point towards Northwestern, though, at a minimum, their two-decade tenured head football coach, having been aware of what was going on and having taken no steps to stop this systematic abuse.
If that isn’t worthy of a conversation about the death penalty for Northwestern football, we need to ask ourselves what is.
The entire point of the death penalty in college sports is when a college sports program acts so egregiously that the only suitable punishment is to stop that program from existing, at least for a certain period of time. An argument can be made that this is retributive justice and that these universities will never redeem themselves, no matter what happens.
And these things are never, ever easy. As New York lawyer William Cooper points out, “Society has become more litigious over the years, so this is absolutely a consideration here for all parties involved. If the ultimate penalty for a college sports program is going to be considered, the prospect of a long legal battle today is greater than it was decades ago.”
But when it comes to safeguarding the health and well-being of college students who play intercollegiate sports, the NCAA (if there is a reason for it to exist at all at this point) needs to take definitive action when the behavior of a sports program and college is so far over the top that we can’t even see it anymore.
Not that it is a primary factor, but it really doesn’t help the optics here that the Northwestern baseball coach was fired on Thursday and that the school admitted it would’ve happened a little earlier were it not for the football scandal.
Jim Foster, the head baseball coach at Northwestern University, was fired on Thursday amid allegations of misconduct and abusive behavior. The university confirmed in a statement that Foster was let go due to a bullying scandal. According to an internal investigation cited in multiple reports, Foster engaged in bullying and abusive behavior last season. Foster spent only one season as the head baseball coach.
While the facts surrounding the baseball coach’s firing are different than that of the football coach’s firing, this quite literally could not have come at a worse time for Northwestern University, as it points, even more directly, at a university that has lost control of the standard of care for student-athletes in its major athletic programs.
Any penalty short of the death penalty will send absolutely no message to other colleges to ask the right questions and do a deep dive into the practices in their athletic programs. There is no way that what happened at Northwestern was a Northwestern thing. These kinds of behaviors are happening, to various degrees, at colleges around the country.
If the death penalty isn’t even being considered for Northwestern’s football program, there is a compelling argument to be made that it is time for the death penalty to be simply taken off the books. As this long, hot, wildfire-infused summer continues to unfold, the tale of a wildcats-infused scandal will dominate our sports and legal pages.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.
