Sunday, July 22, 2012

Penn State & the NCAA: Restorative Justice, not the Death Penalty

The NCAA Will Act on Penn State & Should Seek Restorative Justice not the Death Penalty
People are demanding the NCAA to act against Penn State for its moral horror show in the Sandusky affair. I think the NCAA will act but am not sure it should. But if it does, it should act to restore justice, not impose retribution.

The NCAA is a confederated membership nonprofit organization with complex bylaws that grant immense autonomy to campuses and conferences. It is not a state actor and schools have jealously limited its power.

The bylaws resolutely stick to issues around equal playing, sports governance, athlete welfare and amateurism. The bylaws define legal not moral requirements of membership. The academic institutions jealously guard local prerogatives and resist reforms that centralize power. Athletic directors and coaches along with the media hate NCAA enforcement. None of them want an ethics police.

Acting now against Penn State “for the good of intercollegiate sports” would involve an unprecedented assertion of power by the NCAA. The claim would be that Penn State as an institution and football team failed in their institutional control. Penn State failed but it is not clear it involved NCAA bylaws.

Here are the reasons for caution:
  1.  1t is not clear any major NCAA bylaws were actually violated. The NCAA has no morals clauses; it does have clear moral ideals in its governing documents. Most “morals” violations such as sexual harassment or substance abuse remain at campus level and violate campus rules and state law. The NCAA seldom gets involved as an ethics politice unless it involves institutional dereliction and student welfare. Penn State is not about student welfare.
  2.  Mark Emmert has pointed out the NCAA has no precedent, the actions are “unprecedented.” He has made clear the NCAA should not be bound by the past “normal” expectations. The NCAA issues thousands of punishments as regular administrative actions on minor violations such as practice or travel times violations. These rulings occur around complex rules to protect student athletes and ensure some fair play. Even major violations involve two separate issues.
    1. they entail a clear and proven major violation such as impermissible benefits or agent contact or illegal recruiting. None of these activities remotely relate to ignoring or covering up the abuse of children by a former coach.
    2.  the most serious infractions involve loss of institutional control and deliberate cover up. Penn State qualifies in spades. But it is not clear the leaders even worried whether these were NCAA violations. They were trying to protect their institution’s reputation, not hide from the NCAA.
  3.  NCAA infractions investigators are not equipped to examine criminal actions and must defer to criminal investigations. NCAA personnel have neither training nor writ in these areas.
  4.  The case involves hard issues of statute of limitations for most NCAA violations. The abuse probably began before 1977 (35 years ago) and Sandusky retired in 1999. He had a privileged Emeritus status for the last 13 years, but no formal employment relationship.
  5.   Mike McQueary, a graduate assistant, reported seeing Sandusky sexually assaulting a boy in the shower room in 2002. From that point the Head Coach and senior university administrators, not just athletic personnel, covered up for decade. While the Freeh report makes clear a cover-up occurred, most of the time no one even bothered to think about it. If the NCAA has a case it exists here in the cover-up and institutional failure.
“Hard cases make bad law” is a basic maxim of American judiciary action. This is a very hard case that could make very bad law.

If the infractions committee or NCAA President acted now, they would appropriate a range of control over over ranges of moral/legal behavior that lie beyond their past competence or mandate. I think they will act simply because the actions are so despicable even if beyond any legal writ. It looks like the actions were “enabled or at least not stopped” in Mark Emmert’s words

The NCAA will act. Paradoxically they will act for the same reasons that drove the cover-up to protect the legitimacy and credibility of the NCAA and out of moral outrage.

The NCAA lawyers will concoct justifications based upon good of the sport or generalized duties of ethics and integrity in athletics. This logic will expand the authority of the NCAA and set huge precedents to regulate new areas.

The NCAA will also act because people fear that that if they don't, no one else will. They cannot rely on Penn State.

This is a school whose idea of restitution is to paint out halos over Paterno’s head and redo their bathrooms!! They finally will take the statue down. Come on! Everyone who can be fired has been, and the Regents should resign and have started but what else do we expect. Sandusky has gone to jail and other will be tried. Penn State will not fall on its sword.

The senior administrators of Penn State and their coach failed to exercise moral integrity and act against immoral and illegal behavior. They worried more about their institution and careers than the victims. This is the crux of the NCAA case of not exercising institutional control over actions occurring by non-university employees that administrators missed and ignored when revealed.

These are real criminal and civil crimes and moral failures. But it is not clear they violate NCAA bylaws.

Let’s assume the NCAA will act with a newly developed warrant asserting new powers and authority based upon moral integrity of institutional systems. Let's assume they act through Presidential action from the Board and bypass the infractions committee. Now let us assume that the program does not have a history of violations or probation that would point to long-term lack of institutional control. Multiple probations also point to an inability or unwillingness to gain control of rogue coaches, rogue agents, rogue players or rogue boosters like. At Penn State no extant history of violations or institutional hostility manifests. However the NCAA acts it must do so in a way that achieves its moral ends but also avoids Penn State litigation that might challenge this extension of power.

NCAA President Mark Emmert point out this is unprecedented and NCAA precedent is not much help. I mean OK, telling a school you can’t go to a bowl game for three years or you lose 25% of your scholarships—these are serious NCAA penalties, yet they feel like a pea-shooters against a whale.
No bowl games? Fewer scholarships?  Versus 35 years of sexual abuse of children under the protective banner or Penn State or ten years of covert denial and cover-up with no remorse?

I know people are screaming for the death penalty, but to what end? The program gained no competitive advantage, violated no major rules, did not abuse student welfare, cheat on exams, not graduate students or play fast and loose with agents. It has no prior history. All the conditions under which the death penalty has been used do not comport. The death penalty would also open the NCAA ups to serious legal challenges which neither it nor Penn State want. 

I want to strongly support another approach that others have floated. Do not use the death penalty. Limit bowls or scholarship reduction if you want, but to act to connect to the moral nature of the crime.

Don’t focus upon retribution. The NCAA should aim for restorative justice.

Take the profits from football for the next five years, or take a high mandated percentage so that other sports will survive. Require Penn State to fund an independent national foundation dedicated to preventative education of child abuse. Put this money to good use. Create a real independent nonprofit foundation and have it dedicated to working with colleges and high school to provide strong education and support to stop this plague.

NCAA action will ultimately rest upon moral claims, not bylaw violations. The NCAA response should be informed by restorative justice, not retribution. Protect future victims from the depredations Penn State fostered.


  1. Do not use the death penalty. I'm against death penalty too. We don't have the right to put one's life in our hands. Unjust.

  2. Looks like you nailed it JPat. Well outside the NCAA's normal realm but at least crafted to attempt to address the culture that so woefully failed those young victims.