Tuesday, July 24, 2012

The NCAA-Penn State Lack of Institutional Control

More details are emerging on Penn State’s acquiescence to the severe sanctions imposed by the NCAA. 

The key to the NCAA acts was the Freeh Report’s findings of a lack of institutional control by the Administration and Board of Trustees. Even during the grand jury hearings and indictments the President and then Chairman of the Board kept the trustees in the dark.

Here’s what we found out later yesterday. Penn State President Rodney Erickson said he had no choice during discussions with President Mark Emmett of the NCAA. He trimmed the NCAA’s sanctions somewhat, but was basically given a take it or leave it ultimatum with the threat of the death penalty hanging over Penn State.

Of course, he had a choice. He could have stood up to Dr. Emmett and said he could not commit the University without the approval of Penn State’s Board of Trustees or without advice of counsel. Instead, he caved. The President, the new Chairwoman of the Board Karen Peetz, and the new Athletic Director signed off on the agreement before telling the Board.

He could have stood up on the ground of institutional control. The NCAA would have had to back down.

The president of a public university with 40,000 students, thousands of faculty, and staff needs a unique set of skills to succeed. He or she has to answer to the Board, the faculty, students, alumni, administrators, staff, and the community. Some presidents turn out to be strong leaders and others weak. Father Theodore Hesburgh of Notre Dame built a small football power into a world famous university and John Silber transformed Boston University from a strong university in Harvard’s shadow to an academic powerhouse in its own right.

President Erickson is starting out as a very weak leader, whom the Penn State family will probably run out of office within a few years.

The death penalty was quite possibly a bluff. Apparently, the NCAA rules clearly specify the grounds for imposition of the death penalty (I admit I have not read them). Penn State’s misconduct, no matter how egregious and outrageous, apparently did not meet any of those standards.

One would think that the emasculation of the football program, integral to Penn State, would have been approved by the Board.

However, we learn from Anthony Lubrano, a dissident Board member, that they were not consulted. Indeed, the President did not inform them until after reaching the agreement.

The Nittany alumni were sufficiently upset by the unceremonious firing of Coach Paterno that they elected Anthony and Adam Taliaferro, a former player, to the Board, defeating two incumbents.

Trustee Lubrano said yesterday “It’s really simple: I am frankly outraged as a member of the board of trustees that the university entered into a consent agreement without discussing it with the Board in advance of signing.” He added “If I’m going to be held accountable, I feel like I should’ve been part of that process,” followed by “I think it’s fair to say that a number of board members are upset.”  

If the Board was uninformed, or nor fully informed, then that is a lack of institutional control in which the NCAA is a party.

I’m as offended as anyone that Penn State allowed a pedophile to roam its athletic facilities and events for over a decade.

But I also subscribe to the rule of law, all the more essential in inflammatory situations. We are also taught in law school that there are two sides to every story. The Freeh Report is an incomplete one side of the story.
The NCAA Executive Committee and the Division I Board of Directors agreed with President Emmert to bypass the normal procedures. Thus, he became the investigator, judge, jury, and executioner.

The Penn State debacle was many things, but it was not an emergency which called for quick action by the NCAA. The NCAA’s processes were highly irregular and defied any normal concepts of due process. Admittedly, the NCAA is a voluntary, private contractual organization, but even its powers are not unrestricted. It has lost, for example, a couple of antitrust suits. A rush to judgment is especially perilous when passions are aroused.

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