Making A Victim Out Of Penn State

As advertised, the NCAA is coming down hard on Penn State:

The NCAA has hit Penn State with a $60 million sanction, a four-year football postseason ban and a vacation of all wins dating to 1998, the organization said Monday morning. The career record of Joe Paterno will reflect these vacated records, the NCAA said.

Penn State must also reduce 10 initial and 20 total scholarships each year for a four-year period.

The NCAA revealed the sanctions as NCAA president Mark Emmert and Ed Ray, the chairman of the NCAA’s executive committee and Oregon State’s president, spoke at a news conference in Indianapolis at the organization’s headquarters.

“In the Penn State case, the results were perverse and unconscionable. No price the NCAA can levy will repair the damage inflicted by Jerry Sandusky on his victims,” Emmert said, referring to the former Penn State defensive coordinator convicted of 45 counts of child sex abuse last month.

The NCAA said the $60 million was equivalent to the average annual revenue of the football program. The NCAA ordered Penn State to pay the penalty funds into an endowment for “external programs preventing child sexual abuse or assisting victims and may not be used to fund such programs at the university.”

As far as NCAA punishments go, and the severity of Penn State’s actions (and the consequences of those actions against others), I can’t really say that the NCAA is being too hard on Penn State here. I can reiterate my previously held view, however, that vacating wins is dumb. Previous players who had nothing to do with the events back in yesteryear should not have their wins taken away. Because, you know, they won. And unlike in other cases, nobody cheated. We can’t even say “but they might not have won without that ineligible player, so we must vacate” as we can in other instances. I think it’s a bad idea regardless because wins are wins and losses are losses, but I think it’s particularly bad in this case.

The rationale in this case almost certainly has to do with a strong desire to deny Joe Paterno his perch as the winningest coach in college football. I can very, very much appreciate the sentiment. But you know what Joe Paterno is? The college football coach who has won more games than anyone else..

The big concern, though, isn’t the vacated wins. It’s the apparent lack of due process. A lawyer (law professor, actually) friend pointed me to this Sports Illustrated article:

Whenever an NCAA issue arises, its public relations staff is quick to point out — correctly — that the NCAA is a representative democracy that does the will of its members. The organization’s rules and enforcement procedures were discussed and voted upon by the leaders of the schools those rules and procedures affect. Those procedures have made the NCAA’s justice system quite slow. Ask any USC football fan who waited years to learn how Reggie Bush’s acceptance of money from two wannabe agents would ultimately affect the Trojans’ football program.

Yet here we sit less than nine months from the release of the grand jury presentment that set this scandal into motion. We’re less than two weeks from the release of former FBI director Louis Freeh’s report that concluded former Penn State president Graham Spanier, former football coach Joe Paterno, former athletic director Tim Curley and former vice president Gary Schultz conspired for years to cover up an accusation that Sandusky had raped a boy in a shower in the Penn State football building in 2001. In this case, absolute power corrupted absolutely. That is plain to see. But it was pretty plain that Bush had taken money and that North Carolina’s football program was rife with issues in 2010. Yet those cases took far longer and followed NCAA procedure. Penn State, in the parlance of the courthouse, is on a rocket docket. […]

Penn State will get penalized Monday. Then what? What happens the next time the agreed-upon process moves too slow for Emmert and he decides to play judge, jury and executioner for a different school? It’s one thing when Commissioner Roger Goodell does that in a private business such as the NFL. It’s quite another in the NCAA, which has a membership consisting mostly of public universities. Hopefully, Emmert will treat this like the emergency it is and hand back those powers as quickly as he grabbed them. Human nature and history suggest that isn’t easy.

Staples goes on to make the point that the NCAA is in a lose-lose situation. The rules don’t seem to take much account of illegal behavior that is tangential to the program itself. Baylor University’s basketball program was hit hard for obstruction of justice involving a murder a few years back, though that’s the closest thing that comes to mind. From what I recall, though, that punishment was handed down through normal channels.

Dave Zirin of The Nation actually also makes some good points:

What Penn State did was commit horrific violations of criminal and civil laws and they should pay every possible price for shielding Sandusky, the child rapist. This is why we have a society with civil and criminal courts. Instead we have Mark Emmert inserting himself in a criminal matter and acting as judge, jury and executioner, in the style of NFL commissioner Roger Goodell. As much as I can’t stand Goodell’s authoritarian, undemocratic methods, the NFL is a private corporation and his method of punishment was collectively bargained with the NFL Players Association. Emmert, heading up the so-called non-profit NCAA, is intervening with his own personal judgment and cutting the budget of a public university. He has no right and every school under the auspices of the NCAA should be terrified that he believes he does.

Speaking anonymously to ESPN, a former prominent NCAA official said, “This is unique and this kind of power has never been tested or tried. It’s unprecedented to have this extensive power. This has nothing to do with the purpose of the infractions process. Nevertheless, somehow (the NCAA president and executive board) have taken it on themselves to be a commissioner and to penalize a school for improper conduct.”

Zirin also makes the good point that the NCAA is complaining about a “lack of institutional control” in a case where it clearly doesn’t apply. Institutional control wasn’t lacking, it was the problem.

We’ll see what happens from there. If Penn State doesn’t sue or appeal, we can assume that they were in on the decision. If this was a quick way to avoid the Death Penalty that permanently crippled SMU’s program, then I suppose “so be it.” If Penn State challenges this, though, it’s not clear that they should lose, regardless of how horrific the actions of the university.

Disclaimer: I have no connections to Penn State at all. Nor do I have any affiliation with any Big Ten school, nor does anyone in my extended family, as far as I am aware. My lawyer/professor friend is similarly disconnected from Penn State and the Big Ten in every way that I am aware. Nothing in this post should be construed as support or excuse-making for what Penn State did. By and large, the questions I have are primarily ones of process, jurisdiction, and to a lesser extent how punishments should occur regardless of the degree of the infraction.