Piling On
 Neutering the Lions


July 27, 2012

In a historic action, the NCAA handed down severe penalties to the Penn State football program. The Nittany Lions have been fined $60 million; banned from bowl games for 4 years; had their scholarship limit reduced from 85 per year to 65 and their maximum new scholarships per year reduced from 25 to 15 for the same 4 year time period (making it unlikely they’d win enough games to go to a bowl game anyway); and vacated all 112 wins since the 1998 season. Not wanting to pass up a chance to kick some dirt on a member school when they’re down, the Big 10 (give or take a few) conference announced that PSU would not be receiving their share of conference bowl revenue for 4 years, a further financial hit estimated at $13 million.


The penalties were the most severe handed down since SMU got the death penalty in 1987. Some have argued that PSU was actually hit harder. But the historic aspect was not the size of the penalties nor their impact on PSU but rather the brave new world the NCAA decided to create for itself.


There are two unprecedented elements to this situation. The first is the galling power grab by NCAA president (and Newt Gingrich look-alike) Mark Emmert. The NCAA rules enforcement process has often been called slow and toothless. But the key word was “process” – there had always been a standardized way of proceeding to make sure there is not a rush to inferior judgment.


The NCAA had always allowed its own form of due process – schools were notified of being investigated and given a chance to cooperate and, if they so chose, provide their side of the story and rebut evidence or statements against them. They also had the opportunity to appeal a ruling. Moreover, though it had no subpoena power (and perhaps because of this fact), the NCAA infractions committee had always waited for relevant information to come out before acting.


In this case none of that was followed. The NCAA had the results of the Freeh report but there were still at least two criminal trials of key scandal figures in the offing. Those could have provided more evidence as to what really happened and what the motives were. The NCAA also could have interviewed members of the Paterno family and former coaches and staffers to get a better idea of what went on at Pedo State. It could have allowed the university a chance to present an argument or defense.


Instead, Emmert usurped power in a way never before seen in college athletics. The NCAA president has never had the power of a pro sports commissioner and was never intended to. Emmert claimed that this was necessary because of the heinous nature of Pedo State’s actions, that this case called for expedience of punishment. Handing over power to a single individual in the name of expedience with the belief that “hey, he won’t abuse it, seems like a decent enough guy” has historically not yielded the best consequences. Fortunately, the NCAA can’t declare war.


Asked about the reason for the rush to punish, Emmert said, “There was no compelling reason to delay the process." Except that he didn’t delay it, he sidestepped it and then obliterated it. Penn State was given a choice, a death penalty of up to 4 years (SMU, the only death penalty recipient in NCAA history, got a 1 year sentence) or swallowing whatever Emmert decided upon. That’s it, that’s the “process”.


What was the compelling reason to act with such haste, to trample on due process and to make an unprecedented power grab? The heinous crimes had stopped – Jerry Sandusky is in jail awaiting sentencing on over 40 guilty counts involving sexual assault on children. The people in charge of the cover-up are either dead or out of power, and most in the latter group are awaiting criminal trial.


Moreover, PSU – being about a decade late to the “child rape is probably not a good thing to sweep under the rug” realization - had been acting exceptionally contrite in recent months. They fired Joe Paterno, a previously sainted local institution for over 50 years, along with the university president and others involved with the scandal. They hired a former head of the FBI, Freeh, to investigate them and gave Freeh unfettered access to all records, emails, etc. The report he produced on their dime and with their cooperation was scathing and will likely add to the tens or hundreds of millions of dollars PSU will pay out in civil suit damages. The crimes had stopped, perpetrators removed, and the institution contrite – how is this a situation that needs unprecedented levels of intervention, how is this a situation that requires throwing away democratic principles?


This brings up the second historic element – the NCAA had no reason to act at all regardless of the timing. This was not an NCAA issue and should not have involved the NCAA in solving it nor in punishment for atrocious actions and inactions. This was a human issue and a criminal issue. This was being rightly sorted out by the courts of criminal justice, civil justice, and public opinion. Laws were broken and those breaking them are being held accountable. Paterno is dead and has paid with his legacy and his heretofore good name.


The NCAA’s primary role has been to keep the playing field as level as possible. This has meant things like having a uniform rulebook for all games within a sport (imagine college basketball if the PAC12 used NBA rules and the Big East used international rules); making sure every school has the same maximum number of scholarships and coaches available; and making sure no one is paying players or buying recruits.


Given this role, the NCAA has typically investigated and punished issues that have to do with players. Someone took Derek Rose’s SAT for him so Memphis no longer played in the men’s basketball championship game. Reggie Bush’s family got, amongst other things, a free house (and during the height of the housing bubble!) so USC got slapped. Todd Bozeman paid Jelani Gardner’s parents and he got effectively banned from coaching college basketball for several years. NCAA rules and punishments had to do with even playing fields and focused on issues involving student athletes.


The NCAA had never before taken an interest in what coaches and administrators do in their personal lives or in anything not relating to the teams’ on field performance. If a coach got a DUI or was caught snorting lines off a hooker’s chest Chris Farley style, the NCAA stayed out of it. If a coach arranged for someone to write a paper or take a test for a player, the NCAA stepped in. The NCAA’s rules for coaches only have to do with player and potential player interaction – how many times can you call a recruit, how many different coaches can provide instruction or do recruiting, etc – and otherwise left the regulation of the coaches to the schools, the law, and the public.


In the Pedo State case, a former assistant coach was seen by a then-current assistant coach, Mike McQuery, doing horrible, immoral, and illegal things to a child in a PSU locker-room shower. It appears that the men running the university, including Paterno, decided against going to the authorities with this information and also took no action to seek out and help the young victim.


It was reprehensible and irresponsible behavior. Everyone involved should be thoroughly shamed and some are justly facing prison time. The institution and community need to examine themselves and make sure that this kind of thing can never happen again. But with that said, this was not an NCAA issue. This was not the purview of the NCAA.


The fundamental question is whether or not PSU obtained an unfair competitive advantage by not going to the authorities in 2001. The answer is simply and flatly no. Sandusky wasn’t even on the coaching staff by 2001 and had nothing to do with PSU’s on field results. If PSU had gone to the authorities immediately (as they should have done) then there would be no claims of any wrongdoing on the school’s part and no specter of NCAA sanctions. Contrast that with the earlier examples of Rose, Gardner, and Bush. The moment Bush’s parents took a payment he was ineligible. The same goes for Gardner. The moment Rose failed to have a passing SAT score that he himself took he was ineligible. That loss of a player has an immediate impact on the field, covering that up is trying to get a further unfair competitive advantage. The moment Sandusky violated a child in the shower nothing changed as far as the NCAA was concerned, nothing changed in terms of wins and losses.


That Emmert decided to vacate wins back to 1998 shows that this was a petty and vindictive move by the NCAA, an overreaction seeking to make the school presidents look and feel powerful, to boost egos and score public relations points. As far as the public and NCAA know, PSU didn’t do anything wrong in between 1998 and 2001. Sandusky was accused of despicable acts in 1998 but the proper authorities were notified and, after an investigation, they decided not to pursue prosecution. At that point what did the NCAA want PSU to do? Take out a full page ad in the New York Times proclaiming that there’s a chance that their defensive coordinator may be a pedophile but they have no conclusive evidence?


Let’s for a moment take the heinous nature of Sandusky’s crimes out of the equation. After all, pedophilia is not against NCAA rules and thus PSU must be getting punished for sweeping a crime (against state or federal law) under the rug. Let’s say that instead of pedophilia, Sandusky was growing marijuana plants and getting high all the time. Let’s say McQuery walked in on Sandusky hot-boxing a shower stall, told Paterno, who told his superiors and everyone decided it was something that didn’t need police or prosecutorial involvement. Would the NCAA have tried to end the football program for 4 years (and effectively likely much longer)?

The Jerry Sandusky crimes and cover-up are simply not in the jurisdiction of the NCAA and in no way justifies Emmert grandstanding and profiteering off the situation by making himself the omnipotent czar of collegiate athletics. The NCAA punishing Pedo State football for their school administration deciding that the strongest response it should give to someone raping children is along the lines of “it’d be swell if you could rape children elsewhere next time” may make some feel good but is not the proper channel for punitive and corrective action. It makes only slightly more sense than the DMV deciding that all PSU employees’ car registrations are cancelled because of the scandal. This should not have been the NCAA or Emmert’s call.


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