I am compelled to write this post to address some of the overwrought and ill-thought out bluster that has been said and written since the Jerry Sandusky situation broke. Specifically, my concern is with the NCAA taking action and the people who applaud the NCAA’s overreach.
Let me begin by establishing that I have no interest in or connection to the Pennsylvania State University, other than being a fan of college football. I have attended two games at Beaver Stadium, both against the University of Akron, once in 1999 and once in the mid-2000s. I attended as a student and later as an alumnus of Penn State’s opponent. I was a Florida State Seminole as an undergrad until I transferred to Akron during my sophomore year. I am not a fan or alumnus of Penn State and I am not motivated by the fact that the university involved was Penn State. I would feel the same if the school had been Louisiana-Lafayette, Utah, or Florida. The issue is not the school involved but the legal and moral impetus behind the punishment.
I should also dispatch with the unfortunately necessary caveats regarding Jerry Sandusky and the administration of Penn State. The underlying acts were absolutely evil and the administrators that covered for Sandusky and allowed the continuing abuse should be punished to the fullest extent of the law. Any disapproval with the NCAA and its response should not be taken as being soft on sexual abusers and those that enable them. Obviously.
That being said, it seems clear to me that anybody who believes in justice and due process of law should be deeply troubled by recent news that NCAA president Mark Emmert is going to impose punishment against Penn State University on his own, bypassing the process agreed to by member institutions. It is unclear under what authority the Board of Directors or Executive Committee can vest this power on a single man, but it is an unprecedented move on the part of an organization that has long been criticized for handing down seemingly arbitrary punishments.
In order to protect member institutions, the NCAA typically follows a process that includes an NCAA investigation and provides a report of its findings and allegations to the institution, which is given 90 days to respond. None of that is happening in this case. Instead, the NCAA is relying on the Freeh report and not allowing Penn State to respond. Again, while I am by no means an expert on the NCAA and its bylaws, I have not been able to find any justification for the NCAA taking this unprecedented step.
Why is this important? Penn State’s guilt is clear. (More on this later. I’ll stipulate to this point for the time being though.) Nobody has offered a serious rebuttal of any important facts contained within the Freeh report. So why shouldn’t the NCAA save the time and money that would be spent on a separate investigation and advance the process? Even if that were a reasonable thing to do, I have found nothing in the bylaws that allows the NCAA to arbitrarily depart from the normal procedures and deny due process to an offending institution. This is an extremely troubling precedent to set. But in order to adequately explain why, it is necessary to back up a bit.
Consent of the Governed
Under what authority does the NCAA have to punish Penn State? This may sound like a rather unimportant point, one that we don’t even consider in most discussions relating to NCAA infractions. We take for granted that the NCAA has jurisdiction to punish member institutions for violation of its rules, but why does it? Put simply, the NCAA may punish its members because its members give it the authority to do so. In exchange for the member institutions’ consent, the NCAA provides due process before a punishment is administered. The parallels with civil society are obvious. We consent to be punished for violating the laws of the land in exchange for being represented in the government and for the guarantee that if a violation is committed, the state will follow certain rules in prosecution. These rules are known as due process, and they are so fundamental in our system of government that we rarely consider them. Yet, in order to punish us for violating society’s rules, we accept – in fact we demand – that the state follow these rules, even when the guilt of the defendant is not in doubt. The state bears the burden of proof beyond a reasonable doubt. The state may not coerce a defendant into a confession. The defendant is entitled to confront witnesses against him. Etc, etc, etc.
In criminal prosecutions, it is not enough to assert that somebody else has proven the state’s case. The state has the burden to prove its case. The defendant must be given an opportunity to respond to the state’s case. If requested by a defendant, a jury, not the president or governor, must convict the defendant. The NCAA provides its member institutions similar rights, in exchange for the member institution’s consent to be governed by the NCAA, including punishment. What, then, gives the NCAA the authority to deny Penn State due process in this case? Even the most evil criminal defendants are afforded due process, even when guilt is clear. Why should Penn State not have the same right in this case, when it is clear that NCAA procedures and precedent afford them such rights?
Equally egregious, it is not clear that the NCAA has proper jurisdiction to punish Penn State. The allegations in the Freeh report are awful and demonstrate no less than evil on the part of Jerry Sandusky and at best, calloused indifference on the part of the Penn State administrators that chose to conceal the allegations when they came to their attention. The Commonwealth of Pennsylvania has convicted Sandusky for his acts and he will spend the rest of his life in prison. Hopefully, it will pursue charges against any administrators that enabled abuse after they found out, if the law allows for such charges.
That said, the NCAA appears to be inserting itself into a situation where it has no jurisdiction in order to satisfy a blood-thirsty mob of fans and sports reporters. With the repeated caveat that I am not an expert on NCAA bylaws, I can find no rule that was broken by anybody at Penn State. The most commonly cited bylaws justifying NCAA action seem to be those related to honesty and sportsmanship and the oft-cited but consistently misunderstood Lack of Institutional Control. While I have neither the time nor the expertise to break down each potential bylaw violation, it seems to me to be a huge stretch and completely unprecedented to apply an NCAA bylaw to a criminal or civil law violation that had little to do with athletics at Penn State, other than that the perpetrators were employed by the athletic department. Ohio University professor David Ridpath, considered one of the nation’s foremost experts on NCAA compliance issues has been quoted as saying "I don't think this is an area that the NCAA can encroach in. If they do, then they've opened themselves up to really being much more of a different governing body."
Furthermore, Mark Jones, a collegiate sports attorney for the nation’s top NCAA compliance firm, Ice Miller in Indianapolis, has worked with the NCAA for 18 years and was managing director of enforcement when he left in 2004. Jones has been quoted as saying, "It's really hard to know what an allegation in this particular case would look like. For unethical conduct, traditionally that's a finding that's made that impacts an individual. It's not as much an institutional violation. By and large, institutional control has been finding when an institution has had some underlying problem that has been an NCAA rules violation in the operating bylaws that impact competitive equity on some level."
That provides the next rationale that is often heard. Surely Penn State’s situation demonstrated a lack of institutional control, no? Well, no, not really, for two reasons. Number one, as Mark Jones said above, a finding of lack of institutional control depends on some underlying bylaw violation. Much like the General Welfare Clause of the Constitution cannot act independently of some other enumerated power that would allow Congress to act, a finding of lack of institutional control requires some other underlying violation.
More importantly, the lack of institutional control penalty is found where the school has not implemented proper policies and procedures to comply with NCAA rules. The NCAA has promulgated no rule regarding either the commission or reporting of child sexual abuse, and for good reasons. That is a matter for civil enforcement, not NCAA enforcement. Any policy regarding the commission of a crime or reporting thereof are under the jurisdiction of the school and the state, and perhaps even the federal Department of Education, but not the NCAA. For the NCAA to find a lack of institutional control here would be a vast and unprecedented expansion of that rule that is not supported by the bylaws existing at the time of the alleged violation. This is nothing less than an ex post facto law, which in a criminal context has been prohibited as far back as the Magna Carta.
One final point to consider, doesn’t a conspiracy to cover up a violation demonstrate too much institutional control than a lack thereof? Just something to consider.
I would be thrilled if fans and pundits would at least have the discussion of whether the NCAA has proper grounds to intervene here. I don’t think there’s much of an argument that the NCAA has proper jurisdiction, but it is at least a discussion worth having. Unfortunately, most people and pundits don’t even seek to justify NCAA action. It appears to be enough that they want to see Penn State punished. Whether the punishment is appropriate or legitimate seems to not much matter to the masses, who would rather wave pitchforks and torches than discuss due process and justice.
Who Does This Punish?
As of my writing this, any punishment remains speculative. By the time you are reading this, it will be known. Whatever the nature of the punishment, consider the question above. Who does the punishment actually punish? What, exactly, is Penn State University? Can the University itself be punished? Does the University have feelings? Remorse? Isn’t the University nothing more than the people associated with it? The Board of Trustees? The Administration? The Students? The Alumni? All of the above? If there is a significant monetary penalty, who would pay it? Some reports suggest that PSU will be fined $60 million. Who will pay for that? Taxpayers? Students? The endowment fund (which will result in a budget crisis for the entire university in the short term and billions of dollars in lost interest in the long term)? Will any of the wrongdoers feel even a tiny sting from such a punishment, or will the tens of thousands of innocent students, or the millions of Pennsylvania taxpayers? Will the football program be harmed? Should it, considering that current coaches and student athletes had nothing to do with the situation? Will non-revenue sports be punished, ultimately, since football is the athletic department’s primary revenue producer?
Yes, this is a problem with NCAA punishments, generally, which consistently seem to punish subsequent players and coaches rather than the actual wrongdoers, but the punishment seems especially unjust in this case, considering the potential long term damage done to the university and the athletics programs. Who will be harmed by this unjust NCAA overreach into an area where it has – at best – extremely thin basis for jurisdiction and where it has denied due process to the school? Jerry Sandusky will spend the rest of his life in prison. Any administrators that knew about the abuse and didn’t report it have been purged from the university. Hopefully they will be properly prosecuted as well. However, those bad actors have been replaced by innocents. Why the rush to punish people who had nothing to do with the crime? Penn State as an institution cannot be punished. The punishment will fall on real people, all of whom had nothing to do with the Sandusky situation. Is that justice?