NCAA, Mark Emmert, Unitary Executives & The Death of Due Process

Once you step beyond the tragedy of Aurora, the big news today centers on Penn State and the aftermath of Jerry Sandusky, Joe Paterno and Louis Freeh. There is a lot of news, and implications to come, from today’s events.

First, and unsurprisingly, Penn State yesterday took down the fabled statue of JoePa. Abandoning larger than life symbols, whether human or otherwise, is never easy. And it is not just the specter of human faces in this regard either, witness the difficulty (irrespective of which side of the equation you reside on) of moving beyond “Redskins” and “Seminoles” as team mascots. But Paterno’s statue at PSU, by now, was more a testament and reminder of gross and wanton failure, not success. A defeating duality if there ever was one for a supposedly inspirational piece of art. The statue had to go the way of JoePa himself, and it now has.

The second part of the news, and discussion thereof, however, will have far greater repercussions. That, of course, is the actual penalties handed down to the Penn State football program. They have just been announced and are as follows:

1) A $60 Million fine to be applied to anti-child abuse charity and organizations

2) A four year ban on bowl appearances

3) A scholarship reduction of 10 initial scholarships year one and 20 overall scholarships per year for a period of four years.* Current athletes may transfer without penalty or limitation

4) Imposition of a five year probationary period

5) Mandatory adoption of all reforms recommended in the Freeh Report

6) Vacation of all football wins from the period of 1998 through 2011. A loss of 111 wins from the record book (109 of which were from Paterno)

These are extremely harsh penalties. In some terms, competitively anyway, the scholarships are the key element. A loss of twenty per year for for four years, when prospective players know they will never see a bowl game in their career, is crippling. It will be fascinating to see how PSU survives this blow.

USC provides the best analogy, as it is just finishing up its sanction of a two year bowl ban and loss of ten scholarships per year for three years. While the Trojans will be eligible for a bowl game again this year, they still have one more year of the scholarship reduction to get through. USC has remained competitive and, in fact, is considered to be a major contender for the championship this coming year. Penn State, however, has much longer terms, especially as to the critical bowl ban, and cannot offer the glitz of Southern California. It is going to be very tough, but likely passable, sledding for the Nittany Lions. We shall see.

To some extent before, but certainly ever since the release of the Freeh Report, there were plaintive wails for the imposition of the death penalty for the PSU football program. The cries came from all corners, none more pronounced than the ranks of sports journalists who make a living off of the disingenuous sham that is big time “student athletics”. The examples are rampant, but Michael Ventre of NBC Sports and Stephen A. Smith of ESPN are but two examples of the bloviation that has occurred on “death” for PSU football. There were a plethora of others from all over the spectrum.

It has been amusing watching the very press and pundits who make a living creating the aura of people like Joe Paterno, and the godliness of football programs such as he ran at Penn State, howl at how wrong it all was and must be killed. They are physicians that should heal themselves.

What was the basis for such mob clamoring for death – or worse! – to Penn State? Well, shocking as it may be that such erudite legal minds as Stephen A. Smith could be wrong, I can find no express jurisdiction for direct NCAA action, much less the “unprecedented sanctions” rendered, under the factual situation presented. Emmert claimed the inherent authority, but the rules themselves belie his claim, as does historical precedent of NCAA enforcement. What occurred today was not just “unprecedented”, it was never contemplated.

The NCAA Division One Manual and Bylaws is incredibly long, convoluted and poorly written. The one unmistakable takeaway from a review of it, though, is that it was designed for regulation of student athletes and the sanctioned competition they engage in. It is not a regulatory, nor enforcement, scheme designed to deal with criminal acts and morality, whether direct or tangential. In fact, the word “criminal” appears on exactly one out of the 426 pages of the manual (see: Manual, p. 393), and that is, somewhat hilariously, only in relation to defense and indemnification of NCAA employees – the masters and overlords – who might get called to testify or participate in civil and/or criminal proceedings. That is the full extent of the contemplated jurisdiction of the NCAA in relation to overt criminal acts, whether they be acts of commission or omission, both of which were present in the Sandusky/PSU set of facts.

So, what is the actual original intent of the NCAA? It has been stated, and restated, over the years, but this, from the NCAA itself, is pretty much as good a synopsis as there is of the designed intent and jurisdiction:

The original 1906 constitution of the NCAA (IAAUS at that time) reflected a desire of the first delegates (primarily college professors) to regulate college athletics and ensure that athletic contests reflect the “dignity and high purpose of education” (Falla, p.21). During the early years of the NCAA, this was carried out by assuming a role as the chief rulesmaking body for many sports, promoting ethical sporting behavior, suggesting that athletic departments be recognized as units of instruction within each university, and debating issues such as amateurism and eligibility for competition. Many of these functions and issues are still foci for the NCAA. However, the organization’s role has expanded substantially over the years to include administration of national championships, education and outreach initiatives, marketing, licensing and promotion, communications and public affairs, membership/legislative services, and rules enforcement.

An admirable set of goals indeed, but it does not contemplate regulation of felonious criminal behavior, even if it is tangential to a major college sports program. And, unsurprisingly, never – at least until today – has the NCAA sought to insert itself into such weighty concerns of society as a whole, as opposed to conduct in and around the “student-athlete” relationship to member universities and “competition” among them. Not until today, not until Mark Emmert arrogated upon himself the authority. But that is what unitary executives do, isn’t it? They arrogate power and abrogate due process.

Read the Freeh Report; the only possible student-athlete/competition offenses that appear to exist are extremely minor infractions on which Paterno did not discipline players appropriately or fully. That, of course, has nothing whatsoever to do with the Sandusky facts, and in no way could serve as an appropriate basis for the serious “major infraction” level penalties imposed today. PSU may morally deserve these penalties, or even maybe the death penalty, but that does not mean the path to it is legitimate or should have been taken in the absence of competent jurisdiction.

The NCAA rules and bylaws do not apply on their face, and are clearly not intended for the type of application just imposed against PSU. The only possibility was to contort “lack of institutional control” but, again, the design of the regime is to regulate student athlete and competition elements, and this is simply not that.

There was no statutory investigation by the NCAA enforcement arm, no infractions, whether minor or major, found, no improper recruiting, no academic cheating, no sex, drugs nor rock and roll found present. Nothing. Punishment without crime or bylaw due process. And Emmert had the temerity to jam Penn State into a consent decree so that there would be no appeal. It is just stunning arrogance and belligerence.

It should also be noted that one of the stated goals previously encouraged and respected by the NCAA is the self reporting and remediation by a target university. It is hard to imagine a case where a university has done a better job in that regard. PSU fired Paterno long ago and severed the other administrative personnel actively involved in the cover up. The coaching staff has been effectively cleansed and replaced with new and squeaky clean souls. Most notably, Penn State conducted their own hard hitting investigation, on their own dime, and resolved to implement its recommendations. And they removed the damnable statue. It would be impossible for a university to do more given what Penn State faced.

But none of that was enough for the NCAA.

What was found? Apparently a “lack of institutional control” based on….well…the golden egg of the NCAA has been tarnished, and that just cannot maintain. So, Mark Emmert and the 22 high holy men that are the NCAA Board of Directors arrogated upon themselves the grandstanding pulpit and power to decree from on high the moral judgment necessary to salve their own souls and shine their egg. It was an egregious claim of power by a unitary executive via the abrogation of normal procedural due process. Apparently that phenomenon is not limited to the Article II branch of the federal government. The wave is catching, watch out.

It is a grotesque farce of epic proportion. The NCAA is, historically, one of the most malignant, arbitrary, capricious and self serving organizations in the history of man; that they sit in judgment as they have today is criminal in its own right.

You know what else you did not hear from the lips of judge, jury and executioner Mark Emmert today? Words about how the paradigms of reform imposed on PSU will be spread to all the other member institutions, most all of whom have many of the same institutional infirmities Penn State did. This is a cover your ass move for the NCAA, and it is sick.

As Dave Zirin notes, less than two years ago, Mark Emmert engaged in hyperbolic grandstanding by saying Joe Paterno was “the definitive role model of what it means to be a college coach”. Same Emmert, different grandstand today. And both completely shameless efforts. Zirin also said:

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.”

I could not agree more. Once unitary power is claimed, it is never relinquished, nor applied evenly and fairly. Go read Dave’s article this morning, it is excellent, as was his piece last week after the release of the Freeh Report.

Where does this new frontier of moral jurisdiction lead for the NCAA and college athletics? I for one would like to know if the High Holy Mark Emmert plans to do anything about the Lizzy Seeberg scandal at Notre Dame:

The blood of a 19-year-old girl spills like an oil slick over the football team and the school administration. They should still be thinking about what happened in the chill of the Sun Bowl. They should be thinking about what Tom and Mary Seeberg must have felt like when they received the news that their daughter, Elizabeth “Lizzy” Seeberg, a freshman at neighboring St. Mary’s College, had died.

Not from natural causes. Not in a car accident. But by suicide 11 days after making an allegation of sexual assault against a university football player at the end of August. The school administration and the Notre Dame police department should be ashamed about an inexcusably sloppy investigation at best and a deliberate coverup at worst. But there is no shame when a football game is to be played, however meaningless, and this Sun Bowl is completely meaningless. There is still money is to be made.

Where were the “moral priorities”, “institutional control” and “concern for victims” at Notre Dame? Warped as it may be, at least the victims at Penn State were not made so by athletes, and are alive today to tell their story. The same cannot be said of Lizzy Seeberg and Notre Dame. And it is not just Seeberg either, there is other death directly tied to the football program and under the “institutional control” affiliated with Notre Dame. Where is the heavy hand of the vainglorious Mark Emmert when it comes to the Golden Dome of college football? Nowhere to be found.

But that is the way of unitary executives, isn’t it? Due process dies while the elite are protected at all human and moral cost. That’s also the once and future way of the NCAA.

* Updated to reflect distinction between initial scholarship loss the first year and overall figures for the remaining years

[graphic by ArtVoice and Coalition for Economic Justice]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
52 replies
  1. Frank33 says:

    These are extremely harsh penalties.

    Ha Ha Ha! It is almost as harsh as Solitary confinement and torture. But at least the Penn State Football season is not at risk.

  2. ondelette says:

    Just because I want to understand how your mind is processing this, may I ask two questions?

    1) What do you consider to be the use and meaning of the term “unitary executive”? Your use doesn’t seem to fit what is traditionally known as the “unitary executive theory”.

    2) Would your view of what happened at Penn State be substantially different if any of the victims had subsequent to their mistreatment commit suicide? Since they did not, were they somehow less badly mistreated than Ms. Seeberg?

    I just want to know. I’m not accustomed to treating football as more than a game that some grown men take way too seriously anyway, so the mentality of treating the NCAA as an abuser of rights at this point takes some getting used to.

  3. PeasantParty says:

    OT

    Just watch House Oversight Committee for National Security hold a hearing on increased US non-government drone program. Main missing issue was:

    What threat to citizens requires these programs?

    DiFi will have a speech that is being covered on CSpan at 12:30 on Oversight of her committee. I’m sure EW is aware of it.

  4. John Casper says:

    Nice hammering of the NCAA. I don’t think you were nearly tough enough, but I don’t recall anyone coming remotely close to what you provided either.

    You accurately wrote: “…..the design of the regime is to regulate student athlete and competition elements,…”

    As USAToday’s Christine Brennan pointed out, Penn State’s conduct in this has been a 14-year text example of cheating to gain a competitive advantage.

    “Penn State leadership stuck in the Bronze Age”

    “…..Didn’t Penn State in fact derive a competitive advantage that would fall under the NCAA’s purview from the massive cover-up of the Sandusky sexual assaults? Penn State created an entirely false image of high integrity and impeccable character under Paterno that allowed it to recruit some of the best players in the country, generate hundreds of millions of dollars in football revenue and keep Paterno, thereby providing unprecedented coaching stability that no doubt was attractive to the nation’s top recruits….”

    http://www.usatoday.com/sports/columnist/brennan/story/2012-07-18/penn-state-leaders-sandusky-paterno-statue-lack-of-action/56321182/1

    In part parents trusted Sandusky, because he had ACCESS to the Penn State Football team’s locker rooms and showers. That ACCESS was incredibly concentrated CANDY to young boys. It was probably a very early step in the “grooming” process that Sandusky used to select victims. Did Sandusky ever rape any child who had not been with him in the football team’s showers? Probably, but was the number statistically significant among a victims list that may go into the thousands?

    The Penn State football team’s showers are not the responsibility of Penn State’s academic deans. They fall under the purview of the football coach and the athletic director.

    I understand the importance of due process and your valiant, heroic efforts to fight for it, but the NCAA is a club. If PSU doesn’t like the club’s rules, they can hit the road.

    Pretty much everyone who had access knew about Sandusky. They didn’t know everything, but over the years, there were probably hundreds who saw what Mike McQueary saw and did a lot less. In 2005, stud linebacker Dan Connor was suspended for making prank calls to Sandusky.

    Sandusky’s the reason it’s called “Linebacker U.” Everyone connected to PSU football knew in 1998, when he was fired from his defensive coordinator job. No one would hire a guy who could not only coach, but also recruit.

    Per you, the above isn’t admissible in U.S. criminal courts, but it widely known by people who chose not to report it to the NCAA.

  5. John Casper says:

    @John Casper:

    Someone has to ask why JoePa or any sane person would have loosed Sandusky on an unsuspecting public. What possible value did JS provide to Penn State football?

    College football is about talent and talent is about recruiting. If people knew what obscene percentage of the athletic departments’ budgets are wasted on recruiting the same very small pool of stud athletes, they would be sickened. The rule is “get ’em early.” That means trolling poor neighborhoods in your recruiting footprint looking for big kids/good athletes. Find a way to get them to your football camps, where you can evaluate them.

    Once you understand those dynamics, the whole 2nd Mile apparatus becomes clear. It was an illegal recruiting arm for Penn State football. Sandusky was the scout/recruiter. He selected kids who got money from 2nd Mile to attend Penn State football camps.

    IMHO, you’ll find that Sandusky was careful not to rape any kids who might actually have been D1 material. His victims were a cut below that, because he knew he could control them in a way he couldn’t the more talented athletes.

  6. bmaz says:

    @John Casper: It not only was admissible in US criminal courts, it was and served as basis for the conviction of Sandusky and sentence that will result in him dying in jail. It will, to some extent serve as the undergirding of the perjury prosecutions of Schultz, Curley and, although not yet charged, almost certainly Spanier as well.

    Also, I might add, there will almost certainly be sever Clery Act penalties assessed on the university as a whole.

  7. John Casper says:

    bmaz, I was remiss in not adding how deeply grateful I am for all I have learned from your writing and tweets over the years.

    • bmaz says:

      Well, I dunno about that, but what makes this blog special is the level of discourse and interaction from awesome commenters. Like you! So, back atcha!

  8. emptywheel says:

    This is a really really picayune point. BUt NCAA should not have vacated the 11/19 win against OSU. Because, as you note, PSU had already fired Paterno.

    That said, I’m sort of interested in talking about what the right solution is. Zirin’s point about Emmet’s own actions to glorify JoePa are important: the problem here was the whole glory system, which breeds lack of accountability. So what should football fans demand from the NCAA to change that culture?

    I do think the club rebuttal to this is good. But the problem with that is the legally sanctioned monopoly here. So maybe this is the opportunity to tie ending that? Or ending the TV monopoly that leads to the glorification?

  9. masaccio says:

    I’m a Notre Dame alum, Class of ’68, and I’m fine with your reference to the Lizzie Seeberg rape/suicide. The story is horrifying, and the investigation of the response of the administration is at the same level of cover-up as at Penn State.

    The plain fact is that athletes are protected from the consequences of their actions in most college programs. There have been plenty of crimes committed by athletes at the University of Tennessee, for example. Let’s hope this Penn State sanction opens the door to serious changes in our response to crime, maybe even to a rethinking of the importance of these programs in the University setting.

  10. ondelette says:

    @masaccio: I’m fine with it too.

    I’m not so fine with the comparison. It’s hard enough to even get accurate reporting of male ‘gender violence’ victims into the news without quite a bit of stereotyping. Now we’re supposed to concentrate on the athletes made victim by the arbitrary policies of the NCAA, instead of the obvious, because a single female victim at Notre Dame commit suicide and none of the male victims at Penn State did?

    The point at Penn State was a crime that went on for years with a cover up that went on just as long involving numerous high ranking school officials who did it for the express purposes of preserving the football program that played an oversized role in funding the school. If nothing is done to sanction that program, it amounts to impunity for the attitude that the program must be the first thought when wrongdoing is observed, for all those for whom the duty to act was moral or ethical, and not legal (for an overview of the difference, see chapter 1 of any textbook for any course for any of the ‘first responder’ professions).

    If the argument is to appeal to a solitary female abuse case, no matter how horrifying, not yet dealt with, as an excuse for impunity, the justice being asked for distinctly resembles that being handed out in corrupt courts in Katanga in the DRC, where identical arguments were put forth to avoid prosecuting the present, on grounds that other atrocities had not yet been prosecuted. Funny thing is, after the current cases get dropped, the other cases never get heard of again.

  11. masaccio says:

    @JThomason: I have this fabulous story about a famous basketball player at UT that popped into my mind when I was writing the comment. It seems the player stole a TV out of a dorm recreation area, and got caught. They charged the guy and he had to make a court appearance. He showed up with a couple of lawyers, including one from UT. There was a bunch of back and forth, and the lawyers all put in requests that the charges be dismissed, and they were.

    A few minutes later, a UT student came up for a hearing on shoplifting. The judge says, where’s your UT lawyer? The guy says he doesn’t have one. Judge says, well, this is your lucky day, free dismissals for all UT students, and let him go.

    I heard this story from a prosecutor I knew in Knoxville, a guy who told me a bunch of other great stories about life as a prosecutor.

    There are tons of problems with athletes at all universities. I remember hearing stories about bar fights, serious ones, involving Notre Dame jocks in the late 50s (I grew up in South Bend.)

  12. bmaz says:

    @emptywheel: That was kind of, differently stated, my point about there being no words about reform in general, only for the “bad apple” PSU. There are a LOT on “institutional control” modalities that could be implemented to better any and all universities, curb the deification of the sports programs, athletes and coaches etc – some of which were sketched out in the recommendations portion of Freeh’s report. But there are a lot more, and more specific. Most are general and could and should be implemented at all schools. Additionally, some type of revenue sharing so that there are not such haves and have nots.

    I dunno, there are a lot of problems institutionally throughout the NCAA, not just at PSU. And, as bad as the NCAA is, that is still not even taking into consideration the cravenly independent, and even more corrupt and monied up, offshoot known as the BCS. Bleech.

  13. JThomason says:

    @masaccio: One of the great challenges of college atheletics is dealing with the youthful beahavior that college atheletes are in no way immune. I felt the need to rise to the defense of the Vols for this challenge is not unique to them. Why yes the Commodores have problems too.

    And yes Tennessee has had its fair share of high profile problems with athelete behaviour. I would go so far to say that the problems that Tennesee had with football atheletes and Phil Fulmer’s inability to manage these was a part of his undoing. Keeping a strong chapter of the FCA alive just didn’t seem to be enough. Didn’t Auburn have a QB that had had some behavorial problems a few years ago. And when its all told the efforts at a change of culture are part of what is distinguishing what Derek Dooley is doing up in Knoxiville. The football team alone has built a couple of Habitat for Humanity houses in the last few years. Not saying there aren’t going to be problems but encouraging these kinds of extracurricular activities more than likely can do nothing but help.

    Still these problems are of a different kind than the ones that have caused all the upheaval and repurcussions at Penn St. I agree generally about the tendency of organizational overreaching that accompanies the rise of the “executive” at the expense of the rights of stake holders over the last few decades. This kind of overreaching is pervasive with those who have built organizational structures. But the nature of these structures is to insulate the executive actions because of the perceived general benefits to organizational members. The NCAA has been overreaching the foundation of these benefits for some time now but its hard to be too sympathetic toward Penn St. here.

    Still BMAZ’s point is will taken in terms of understanding the principles operative in the media hungry gestures that frame our social relations at this time. Its the movement away from fairness, due process, equity and reason that empowers the executive actor does merit comment and appreciate that the nature of these gestures against Penn. St. from the point of view of legitimacy does not pass unmentioned.

  14. bmaz says:

    @JThomason: See, it is not just any of those. This stuff goes on WAY more than even cynics know. I represented numerous college athletes over the years, some on extremely serious criminal activity that was very public and in the press at the time and the greater amount extremely serious that was managed to be kept under wraps. This happens to some degree or another at every university, even smaller private ones known for academics more than their sports. I have had friends tell me about how internal campus conduct boards and modalities tolerate and whitewash sexual assault all the time.

    As bad as PSU was, and is, it is by no means quite as unique as it is being pitched.

  15. JThomason says:

    @bmaz: I am not sure I get your point. On the one hand you suggest PSU should not be subject to summary unprecedented punishment and then on the other hand that cover-ups are a part of administering colleges and universities.

    Not sure all crimes are created equally and Penn St. certainly benefited by failing to clean house and evoke state legal authority once its officials became aware of the problem. I do appreciate your shining a light however on the nature of executive power as it seems to be currently constitutued.

  16. bystander says:

    Personally, I view Emmert’s action against Penn State a preemptive strike to maintain and preserve the NCAA’s authority. When I view the whole of college athletics, and the NCAA’s preeminence (monopoly power, if you prefer), the NCAA administers a deeply inequitable system that carries financial implications (some would argue routine penalties) for all of the institutions of higher education that participate. Not unlike every other college amenity – over which there has been a student recruiting arms race for years – a winning football team is just one more attractive commodity.

    It’s awfully convenient of Emmert to inveigh against Penn State’s moral inadequacies. We never get to ask the question where the NCAA would be without all of the Penn State-s under its purview. For the student athletes I’ve taught and tutored, the degree – or proportion – of that “uneasy mix of gods and chattel” (TM Dave Zirin) really depends on the sport. And, the games that get played in college/university administration buildings regarding their reporting to the NCAA ought to be sufficient to make a mockery of the entire enterprise.

    No; Emmert had to do what he did to keep the focus on a single collegiate entity. He can’t afford anyone’s gaze to drift to his or the NCAA’s flanks.

  17. bmaz says:

    @JThomason: If the rapes had been perpetrated by football players, active coaches, if infractions had any tangible tie to competition, I would have no issue. But the ties are just too tenuous for me to read the acts here as being contemplated as within the NCAA bylaw jurisdiction. The Notre Dame, USC and all the other ones generally referred to by me, to the best of my knowledge, all have some hard ties to athletes/competition. And that stuff is rampant at every university I know of. So, to me, there is a distinction.

  18. Tim White says:

    @emptywheel: I think an appropriate recourse would be to overturn the “unitary executive” action, then call on all NCAA members to vote on maintaining PSU as a member. But like our Congress that hates the thought of declaring war, my *guess* is that Emmert got word from his board that he’d be the one instituting sanctions… that lets all those other Boards off the hook… and like our CongressCritters, those individual board members can talk out both sides of their mouths (depending on who is asking) because they never put their John Hancock on anything…

    Let the fundraising continue!

  19. lokywoky says:

    We have had a situation here at UofM in Montana where there have been a number of alleged rapes including on alleged gang rape by members of the Grizzlies football team in the last couple of years. The UM President earlier this uear summarily fired the Coach and the Athletic Director, raising a firestorm or criticism from the alumni association, the community, the fans and the press.

    Later on, our local paper published a timeline of the alleged assaults, also included were a number of other criminal incidents involving football players, and various and sundry responsees by the UM administration, coaches and other officials. Shortly before the firing, a new campus initiative was announced regarding rape prevention. This included an educational outreach to young men as well, and it was targeted specifically towards the football team. Not two days after all the programs were implemented, another assault was reported. One week later, the coach and AD was fired.

    Our UM President asked for and got a retired Montana Supreme Court Justice to investigate and she presented a reprot with a series of recommendations for the UM to implement regarding a whole series of sexual assaults on campus. Now the US DOJ is investigating our county because there have been over 90 rape allegations that have gone unprosecuted over the last 3 years including all those by the football team etc.

    In any case – the situation here on our campus is a bit different than at UPenn, since it is the student athletes committing the offenses (actually and allegedly), but the response by our administration has also been different. While the coach was awful on the topic (he remarked to the press about one of the alleged rapists, his #1 QB, that he was a “gentleman of the finest morals and decency” after the accuser signed an agreement allowing him to be able to be able to play again), that coach is no longer here. And the UM is taking steps to address the problem of sexual assault on campus, not just by telling the women to watch out for themselves, but talking to the young men also – a very welcome development.

    It’s too bad that more colleges don’t step up to the plate and take responsibility like this – even though our UM President has been really taking a lot of heat for his decisions on this matter.

  20. John Casper says:

    The real winner in this are the NFL owners and their $9 billion in annual revenue. MLB owners have to pay for their own farm systems. The NFL owners have “socialized” that cost onto the state taxpayers, who built the college football brand into what it is today. State taxpayers never got to “cash out.” Once the tv revenue started rolling in, and a few athletic departments started making money, they were “privatized.” The money either goes to coaching, athletic director salaries; NFL style facilities, weight rooms/film study/classrooms, or the real black hole, recruiting.

  21. John Casper says:

    @John Casper: A few years ago the United Football League asked the NFL to pay $150,000 transfer fee per player. That was a “player development” cost. NCAA should be demanding that from NFL owners and plowing the funds back into ACADEMIC budgets.

  22. Tim White says:

    @Tim White:Come to think of it, there must be some sort of policy that enables the admittance of schools to the NCAA. Or could I, Tim White, become a member?

    If there is an admittance policy (probably a vote of the Board), then there must be a disbarment option… even if it’s unwritten… logically, it would be anything that conflicts with the admittance policy. And the admittance policy probably includes some wording about “being in good standing,” etc.

  23. bmaz says:

    @lokywoky: Thanks for that. Although maybe not on such mass scale as you describe for Montana, I believe there is much more of that than the public understands. I have dealt with two different athletic departments in representing players over the years, and the “institution” is very well ingrained and trained in covering up and protecting the athletes. If player defendants have community service to complete for probation or deferred prosecution agreements, they make a call and a booster takes care of it. Everything is greased. It is just absurd. Seriously, my partner and I picked up a couple players to take to court on a theft deal once, and they literally had shoes that put ours to shame – I am talking they were sporting $500 a pair Ferragamo loafers. The way they were coddled and covered for was just insane.

    I also maintain, as I said above, that there is a lot more sexual abuse/assault by athletes, and regular assault, that simply never sees the light of day because they are the jocks. My guess is this is the case at pretty much every campus.

  24. bmaz says:

    @John Casper: That is a very interesting idea. There needs to be some kind of equalization of revenue to though. What really gnaws at me is the way the BCS just sucks the huge bowl money off the top.

  25. Tim White says:

    @bmaz:I understand that and feel bad about it. But I think there’s value in sending a clear & strong message to all NCAA members.

    As for athletes, if a sport is his/her main priority in life, then s/he could probably transfer somewhere else since they would no longer be at an NCAA member school. Many coaches would have a similar option.

    The people mainly getting hurt would be support staff (football game hot dog vendors, trainers, etc.) who get paid little and don’t have the means to move. Frankly though, as bad as I feel about it, skipping the unitary executive route seems best. And expelling them just seems to me to be the best — though not perfect — penalty.

    It doesn’t even need to be permanent. But it would give some real meaning to the NCAAs so-called “death penalty.”

    Furthermore, it was the Board that let this happen via their failure to act / ask the right questions. So it should be some form of penalty against the Board and / or school… and that covers other sports too.

  26. Tim White says:

    @Tim White:And although this may sound ridiculous… expelling PSU from the NCAA does not prohibit other sports from being played. My thinking is to hit the Board where it hurts… in their fundraising efforts. And expulsion would do that… but the sports could continue… just not in the high profile stature that it had.

  27. bmaz says:

    @Tim White: Who are they going to play under that scenario?

    If the NCAA did that, I would fully expect PSU to litigate to the mat, and with very just cause. To be honest, I think they rolled over a little easy as it was. The action today was outrageous considering there were no specified infractions found and no contemplated process given. It may feel good for the average consumer out there, but legally, it is simply bullshit.

  28. Tim White says:

    @bmaz:Some sports would have no competition I imagine. Some sports could become clubs and maintain a schedule. Others may find non-NCAA school sports with which to compete. I’m confident they exist. I saw a few listed on wiki.

    More to the point, if PSU — or any person / org — is a member of some larger org or assoc… then it stands to reason that they can be expelled by the same rules of entry.

    There could be a lawsuit. But that in itself could have some value by shining a light on the monopolistic nature of the NCAA… and it would beg the question of money in college sports, as well as the bring attention to the expectations of fiduciary responsibilities for university trustees…

    Elevating those topics (college sports money & univ trustee responsibilities) into the national discourse would be of great value IMO. I mean, if PSU sues the NCAA… those seem to be central issues.

  29. Tim White says:

    @bmaz:Without digging into it, I found this on DII membership requirements. I presume DI membership is similar:

    here are several requirements that need to be fulfilled during candidacy period year one including but not limited to:

    A mandatory meeting for presidents, directors of athletics and compliance officers held in the fall at the NCAA national office. The meeting will familiarize those in candidacy period year one with the structure of NCAA Division II, Division II philosophy, function and the expectations of campus personnel

    Presumably the “Division II philosophy” and “expectations of campus personnel” would cover this situation… in that it was a failure to uphold the philosophy / expectations… and therefore the NCAA could expel them.

    http://www.ncaa.org/wps/wcm/connect/public/NCAA/DivisionII/Becoming+a+Division+II+Member

  30. bmaz says:

    @Tim White: No, I do not think that would cover it in the least. Again, the NCAA was designed to be about student-athletes, interaction and recruitment of them and the competition they engage in, not the overarching morals of a university nor criminal acts of people no longer associated with it. What you describe is an agenda for a meeting, not specific by-laws for punitive action against or termination of a member institution. This is akin to saying “golly, citizens should be law abiding” and then determining that they ought to go to prison when you have no specific laws they have violated. Maybe that works for you. Clearly Mark Emmert and the self serving, and self protecting, NCAA thought it was hunky dory. But, legally, it is dubious at best, and by my view, outrageous.

  31. Tim White says:

    @bmaz:I’m not a lawyer. You probably know the law better than I do.

    My hope is simply to drive home the point to board members nationwide (at universities, non-profits, corps, legislative bodies, etc.) that they have a fiduciary responsibility that goes beyond fundraising and feeling important.

  32. Tim White says:

    @bmaz:But hey, maybe the NCAA Board will have that meeting and begin discussing what would constitute grounds for expulsion…

  33. bmaz says:

    @Tim White: And that is why they should have appropriate charters, rules and regulation so that members can comply and know what to expect. That is the problem here, the NCAA could have, but never sufficiently did, reserve that kind of jurisdiction. But, why would they; after all, they were not designed to be moral arbiters in society or a remedial modality for straight up felony crime not involving athletes and/or competition.

    By the way, the full NCAA Division I Manual is linked in the main post, and “Membership” is covered in Article 3 thereof.

    I understand the sentiment you are expressing; heck I do not even necessarily disagree with it on one level. But I am, for the most part, a staunch believer in process. And, concurrent with that here, the NCAA wields immense power, and historically has done so fairly corruptly and arrogantly. They have enough arbitrary power over member schools without allowing them to selectively prosecute and punish schools that are not in their favor at the moment on grounds of general morality and conduct not within their traditional charter and bylaws. Is that a frustrating result as to Penn State? Maybe so, but that is the way I see it; the picture in the long run is much larger than this moment of Penn State.

  34. bmaz says:

    @Tim White: Not a chance. Penn State will still fill, if not sell out a stadium of over 100,000 people and bring in good television ratings. That is money baybee. And money is king with the NCAA. Don’t be fooled into thinking a lick of this is about doing the right thing; if it was, the “institutional reforms” imposed on PSU today would be being immediately imposed throughout the NCAA. This is about temporarily hiding a wart so that the ball can roll on.

  35. earlofhuntingdon says:

    Yep, let’s punish the athletes for what their coaches, athletic directors and top university administers did and failed to do. Of course this cuts Penn. States football income, probably its biggest income item barring legislative funding. A principle of justice since the year nought has been that punishment should apply to the wicked, not those they take advantage of, which includes their victims and those who innocently enable them.

  36. tjallen says:

    In the last 10 years or so, the public sentiment against pedophiles and even alleged pedophiles is so negative that I’m surprised there was even a trial. Apparently almost anything is justified, by mere accusations. Evidence is unnecessary. People with children seem to regard pedophilia as far worse than murder, and talk of non-judicial and extra-judicial punishment starts right away.

    It is this extreme public sentiment of revenge and retribution which gives the NCAA its “power” in this case. They are being granted a kind of extra-judicial power because people want something done, no matter the niceties of the law. Vigilantism and lynch mobs mean the police end up having to protect the accused, and this makes angry people even angrier. They will give their nod to anyone who punishes the accused and others remotely connected (relatives, employers, friends). NCAA is just stepping into the breach.

  37. ondelette says:

    @lokywoky:

    UofMontana has indeed shown an admirable example, but let me point out just a few things:

    It’s not at all clear that because a university can step up and take action against players (i.e. students, no matter how privileged), that it can and will do so against faculty, especially powerful faculty and administrators in control of lucrative programs.

    And it’s most certainly not true that because a university, or any other institution, for that matter, can step up and crack down against sexual assault and rape of females, that it can do so against sexual assault and rape against males. Our society and many others barely admit the latter exists except for against small children and in prisons.

  38. Tallygal says:

    Mark Emmert did what he did to pander to people like those on this post who are crying for blood — kill them, kill them again, etc. The offenders have been fired and most likely will be in jail for awhile — like Sandusky. Emmert’s not sending a message to those who provide inducements to players — before this, Penn State was the only public university with no NCAA infractions in any sport back to 1953, when records were first kept.

    Was he sending a message to those who place athletics over academics? Penn State tied at the top with Stanford for best football graduation rate of all 25 BCS teams.

    I agree with the column. His message said cheat in recruitment, cheat on the field and we really don’t care about academics. He just joined the crowd crying for as much blood as can be let — this time by the innocents. Even the abuse victims claim now to be hurt PSU fans. And do you think there will be any money left to settle their suits after the NCAA and the Big Ten distribute it to organizations?

  39. pdaly says:

    @bmaz:
    Nice read, bmaz.

    The overreaching you describe on the part of the NCAA reminds me of this movie moment of overreaching by the Winklevoss twins in Fincher’s (and Sorkin’s) The Social Network
    as quoted by http://www.quotefully.com/movie/The+Social+Network/Larry+Summers

    CAMERON WINKLEVOSS
    Well, we came up with an idea for a website called HarvardConnection, and we’ve since changed the name to ConnectU – and Mark Zuckerberg stole that idea…

    LARRY SUMMERS
    I understand. And I’m asking what you want me to do about it.

    CAMERON WINKLEVOSS
    Well, sir, in the Harvard Student Handbook, which is distributed to each freshman, under the heading “Standards of Conduct in the Harvard Community,” it says that the College expects all students to be honest and forthcoming in their dealings with members in this community. Students are required to respect public and private ownership, and instances of theft, misappropriation…

    LARRY SUMMERS
    [interrupting] Anne?

    ANNE
    Yes, sir?

    LARRY SUMMERS
    Punch me in the face. [turning back to Cameron] Go ahead.

    CAMERON WINKLEVOSS
    [a little shaken]… or unauthorized use will result in disciplinary action, including a requirement to withdraw from the college.

    LARRY SUMMERS
    And you memorized that instead of doing what?

    [snip]

    LARRY SUMMERS
    I don’t see this as a university issue.

    TYLER WINKLEVOSS
    Of course this is a university issue. There’s a code of ethics and an honor code and he violated them both

    LARRY SUMMERS
    You enter into a code of ethics with the university, not with each other.

    TYLER WINKLEVOSS
    I’m sorry, President Summers, but what you just said makes no sense to me at all.

    LARRY SUMMERS
    [Sarcastically] I’m devastated by that.

  40. pdaly says:

    @pdaly:

    In case people are not familiar with the movie or story, the Winklevoss twins approached Larry Summers while he was then Harvard President to intervene on their behalf against their fellow undergraduate classmate Mark Zuckerberg.

    One of the few times Summers seemed reasonable to me.

  41. bmaz says:

    @pdaly: Yes, that is exactly the kind of overreaching I am describing.

    Picture Summers saying to Zuckerberg “Hey, you know, this is UNPRECEDENTED in scope and seriousness, and therefore I am gonna decree you have to give half your gig to the Winklevii” because, well, the Haavard Code of Conduct is broad”.

  42. Skilly says:

    BMAZ,

    I do not recall seeing any other information or speculation about this, but, what message do the universities take away from this NCAA Power grab?

    1) Never go public with your dirty laundry?
    2) Never remediate, since it won’t be acknowledged?
    3) Throw out tenured employees at the hint of an allegation.
    4) pay off your victims?
    5) Any “chain of command defense” is worthless?

    All of this is based upon the Freeh report which is seriously flawed. I have read it and there are glaring deficiencies in the report. It finds fault with JoePa based upon one single email. Freeh says, “It is reasonable to presume…..” When I hear a lawyer use these words, I know it means, “I got nothing.” Joe Paterno must have made some serious enemies to incur this level of wrath.

    One wonders, “How do I go about organizing my own alternative to this NCAA?” I think there might be some possible ship jumpers.

  43. bmaz says:

    @Skilly: It is always easy to pin stuff on the dead guy.

    Paterno was, no matter how you look at it, deficient and far from a paragon of virtue in the Sandusky deal. That said, the lack of critical analysis of, and due process opportunity to rebut, the Freeh Report is pretty disturbing considering how it was offensively wielded against PSU. Maybe these penaties and whatnot were ultimately appropriate, maybe not; either was, they were imposed by a literal mugging and extortion.

  44. Mike says:

    John Casper…how do you know that everyone that had access knew about Sandusky? Is that based on Connor making prank phone calls? If so, you might want to reconsider since those weren’t made to Sandusky at all. They were made to Joe Sarra. Besides if everyone knew about this it kind of blows the cover up theory Freeh put out.

  45. Mike says:

    John Casper one more thing…everyone didn’t know about Sandusky in 1998. He resigned from his defensive coordinator job. The Freeh report, which actually exhibits evidence in Paterno’s handwriting, clearly shows that Joe was dealing with Sandusky’s retirement well before the 1998 incident occurred. I am not sure what PSU could have done at that time considering DPW, Children and Youth, the DA and psychologists found no wrongdoing.

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