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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
ReplyDeleteLooks 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.
ReplyDelete