Monday, July 23, 2012

The NCAA Bullies Penn State

Binder, you’re not really going to post this blog, are you? You’re not defending the indefensible, Penn State, are you?

Yes, and no.
I hold no brief for Penn State. I’ve read the Grand Jury report and Freeh Report. They are damming. The actions of the President, Vice President, and Athletic Director of Penn State were as despicable as those of some Catholic Bishops who covered up clergy abuse. President Graham B. Spanier, Senior Vice President – Finance and Business Gary Schultz, and Athletic Director Tim Curley breached their legal and moral obligations.

A lack of clear evidence leaves the role of the late coach Joe Paterno a little murky, being left to inferences and hearsay, but certainly not up to the highest ethical standards he professed. Paterno did not use email.and his "fingerprints" are not on any document.

The university officials were either consciously or negligently ignorant of legal requirements, such as the Jeanne Clery Act and state laws. They may have engaged in a conspiracy of silence, willful ignorance, relied upon inadequate advice of counsel, or all of the above.

Penn State has cleaned house, and will settle, for presumably large sums, the abuse claims brought against it by Sandusky’s victims since 1998. The victims, often scarred for life, deserve whatever they receive from Penn State.

The total cost to the university will be in the hundreds of millions; the cost to its reputation is incalculable.
It needs to make a clean break with the past and move forward, as quickly as possible. It will now survive as a great research university, and not as a football power.

It has already acceded to the draconian NCAA penalties. They include a $60 million fine, an initial loss of ten scholarships per year for 4 years for the football program, a ban on post season bowl games for 4 years, five years probation, a forfeiture of all victories from 1998 – 2011, agreement to implement all the Freeh Report recommendations.

The $60 million, payable over 5 years, will go to an endowment for “programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.”

Current players will be allowed to transfer without sitting out a year and current recruits are released from their commitment letters. 

The Big Ten then announced that Penn State will forfeit its share of the league’s bowl proceeds for the next 4 years, estimated to be about $13 million. These monies will be donated to child protection charities in the Big Ten community.

Most sports commentators, and perhaps the general public support the NCAA sanctions. A large majority are justifiably outraged by the callous indifference to the presence of a pedophile in its athletic department, even after he retired. For some though, it seems more like an example of Schadenfreude.

I question though the jurisdiction of the NCAA, a heretofore feckless organization with thousands of pages of arbitrary and capricious, incomprehensible rules, sometimes of a Mickey Mouse nature (See Caltech) to suddenly become the moral authority of higher education.

Penn State did not violate any NCAA bylaws. Nor did its misconduct relate to competition on the field. 

Penn State and its former officials are facing criminal and civil actions, but they have not committed an established NCAA violation. The alleged NCAA violation is “lack of institutional control,” a vague term of little actual meaning, but could be applied to almost any violation.

The NCAA, which normally acts with a pace between glacial and snail on alleged violations, has made a rush to judgment. It did not pursue an investigation of its own. It has not heretofore acquired a reputation as a paragon of virtue.

The NCAA rushed here to grab power when the accused is powerless to resist.

Has the NCAA now unilaterally anointed itself the morals police of colleges? Does that mean it will adopt standards against sexual assaults, domestic abuse, sexual harassment, alcoholism, drug addiction, DWI’s, assaults and batteries, grand theft, petty theft, and other felonies and misdemeanors, all of which seem endemic in many sports programs today? Will the NCAA adopt a Zero Tolerance Policy? Will it require a conviction or guilty plea, or, as with Penn State, will it impose sanctions prior to legal resolution of the claims? Is there a permissible limit on the number of arrests per year?

The NCAA has consistently overlooked these criminal acts in the past, even with multiple violations.

The NCAA has acted like the neighborhood bully with Caltech and Penn State.

The forfeiture of all wins from 1998 to 2011 is interesting. 1998 is when the first allegations about Jerry Sandusky arose. The University apparently did nothing. However, the police recommended a criminal prosecution of Coach Sandusky, and the District Attorney, who has since disappeared, refused to prosecute.

This decision is not about justice for the victims; it is purely a power play by the NCAA. It is extending its powers against a once-power which cannot fight back.

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