NCAA Football: Penn State - The Train Wreck, Its Aftermath, And The Failure Of The NCAA

Yesterday, the NCAA lifted the remaining sanctions on Penn State, an act which I applaud, reluctantly. Before we get too far along in this piece, let me explain up-front why I agree with the action by the NCAA.

The NCAA had no business involving itself in what was essentially a personnel and legal matter that should have been left to the legal authorities, the university, and the state of Pennsylvania. The NCAA’s raison d’être is not to punish all immoral conduct within athletics programs, but to ensure fair competition between its member schools. It is left to the schools to discipline employees and officials under its control who are not coaches or players.

Virtually all the NCAA’s rules were set up with that in mind, but in the case of Penn State, they decided to use them as a public relations tool to satisfy those who refused to accept Penn State competing after the awful revelations of abuse that were uncovered during the process. Ending what I consider to be a lawless action prematurely can only be an unalloyed good, even if the net effect may not accomplish what should have been the objective goal.

The legal system and Penn State University was and is completely competent to handle the Sandusky child abuse matter both from a criminal, employment and civil angle as it ultimately demonstrated. I don’t know who was involved in the NCAA decision to ignore its rules and create an offense from whole cloth, but I am unwilling to pin all that on Mark Emmert. I blame the entire association for this abuse of power as well as Emmert.

The NCAA inserting itself into the process was completely capricious and designed for no other purpose than to ameliorate the anger of its critics, who apparently judged that our democratically appointed processes weren’t up to the task. Instead of patiently waiting for the authorities to act and judge the outcome, the NCAA decided that an immediate extra-judicial proceeding was justified despite the lack of authority in their own rules to do so:

A former Committee on Infractions chairman and current Division I Appeals Committee member told ESPN.com’s Katz the NCAA’s penalizing of an institution and program for immoral and criminal behavior also breaks new ground.

The former chair, who has been involved with the NCAA for nearly three decades, said he couldn’t use his name on the record since the case could come before him and the committee he still serves on in an appeals process.

"This is unique and this kind of power has never been tested or tried," the former chair said. "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 would be surprised if they’re treating this as simply a lack of institutional control under the rules," the former chair said. "Because then that would technically go through the committee."

The chair said that the NCAA is choosing to deal with a case that is outside the traditional rules or violations. He said this case does not fall within the basic fundamental purpose of NCAA regulations.

This is, and always was an unethical action by the NCAA despite the protestation of good intentions. Rather than dispassionately enforcing their rules, they allowed the emotion of the public to inform their actions. They employed the rationalization known as The Revolutionary’s Excuse in order to justify ignoring their rules and wielding their power in contravention of their mandate:

An argument for those who embrace "the ends justify the means"—but only temporarily, mind you!—the Revolutionary’s excuse has as long and frightening a pedigree as any of the rationalizations here. Of course, there is no such thing as "ordinary times." This rationalization suggests that standards of right and wrong can and should be suspended under "special" circumstances, always defined, naturally, by those who defy laws, rules, and societal values.

The NCAA themselves acknowledged this was exactly what they were doing in the statement announcing the sanctions against the university:

"We cannot look to NCAA history to determine how to handle circumstances so disturbing, shocking and disappointing," said Emmert. "As the individuals charged with governing college sports, we have a responsibility to act. These events should serve as a call to every single school and athletics department to take an honest look at its campus environment and eradicate the ‘sports are king’ mindset that can so dramatically cloud the judgment of educators."

In other words, "We don’t have rules and procedures for this, but this case is special and we need to send a message."

A Pennsylvania state court heard a case to enforce a law passed by the Pennsylvania legislature to keep all the $60 million dollar fine Penn State agreed to with the NCAA inside the state, and the court wound up questioning the legality of the consent agreement itself. The 6-1 court majority, and even the dissenting judge in the Commonwealth of Pennsylvania Court describe exactly the problem with this entire action by the NCAA:

On Wednesday, the Commonwealth Court dismissed the NCAA’s challenge of that law that would keep the money in state. In a split decision, a majority of the seven-judge panel questioned the validity of the consent decree.

" … given the many discrepancies between the consent decree and the NCAA constitution and bylaws, there exists genuine factual disputes," said Judge Anne Covey in the majority opinion.

She questioned, "whether the NCAA acted in accordance with its constitution and bylaws."

The court further wrote, "The Consent Decree expressly recognizes the NCAA’s questionable involvement in and its dubious authority pertaining to a criminal action against a non-university official [Sandusky] which involved children who were non-university student-athletes."

In his dissenting opinion, Judge Dan Pellegrini said he was "bewildered" Penn State would enter into agreement with the NCAA on issues that "ordinarily would not be actionable by the NCAA."

Just in case the facts seem muddled by the terms "split decision" and "majority," the decision wasn’t close — it was 6-1. As a further point, this lawsuit is still alive. The NCAA moved to dismiss its own challenge to the state law concurrent with removing the bowl and scholarship bans on Penn State yesterday, hoping to avoid further damage by the court to the consent agreement and potentially have the agreement found unconstitutional. Corman has said he would not oppose the motion to dismiss, and would defer to the court’s judgment. It is unclear whether or not the court will dismiss the case, but I suspect they will, since the NCAA has said it will drop other pending litigation in U.S. District Court if it does. But they may not, and if not, the NCAA could be in for a very rough ride.

Anyone who thinks this ruling isn’t a significant driving force behind the NCAA’s action yesterday is mistaken. The NCAA has seen the handwriting on the wall, and they are very well-versed in the theory that there is a time to fight and die on "principle," and a time to retreat and declare victory. That’s what yesterday’s decision is, make no mistake.

Most who support the NCAA’s decision to involve itself, including my colleague Brandon Larrabee at Team Speed Kills, argue the point from what is, in my humble opinion, an ends-justify-the-means perspective. Now, Brandon is a friend of mine, and he is as entitled to his opinion as I am mine, but compare this to the Revolutionary’s Excuse I cited above:

Those are the individuals who had allowed football to dangerously warp their perspective, who had allowed their love of the game and their love of a coach to outweigh their humanity. And those people – not the players and not the coaches – are the ones who had their sentences commuted by the NCAA today. The only way to send the message to the Penn State culture – the "way of thinking, behaving, or working that exist[ed]" at Penn State, for those who need the word defined – was to send a lengthy reminder that football is not more important than life, not more important than health, not more important than the well-being of the children victimized by a Penn State employee whose crimes were hidden for far too long.

And that was the message that the NCAA sent with its initial penalties. There was no one else to punish the athletics department, no one else to punish that culture. The NCAA stepped into a vacuum and, for once, did the right thing morally despite the fact that nothing was spelled out in its rulebook. For all those who slammed the NCAA for punishing the minor and the trivial, here was an example of the organization handing out sanctions for the significant and the severe. And instead of praising it, the critics trashed that as well, saying that it was essentially something too important for the NCAA to punish. [my emphasis]

Brandon, unlike the NCAA, isn’t throwing ethics out the door with an eye on the approving public. He appears to be coming from a justifiable position of shock and horror, imagining that if we, just this once, ignore the rules to make a point worth making, it will all work out for the best. He may even rationalize that the NCAA’s failure to follow it’s rules can be technically defended when, in my opinion and in the opinion of most informed observers, it clearly cannot. I understand this reasoning, even if I must reject it.

His reasoning is flawed, and here’s why — It is the responsibility of the people of Pennsylvania, acting through their representatives on the Penn State board of trustees, their agents in law enforcement and the civil and criminal justice system to hold those people accountable, and deal with the corrupt culture Brandon describes, not the NCAA, and they have done so. If the NCAA was unsatisfied with that response, the correct remedy was to revoke Penn State’s membership in the association, something fully within their power for this type of wickedness that isn’t sufficiently addressed through appropriate legal, civil and civic means.

It is also unfair, and just plain wrong, for us to assume the NCAA had to step in because the university, its board of trustees, and the legal establishment of Pennsylvania would paper over such heinous crimes and conspiracies because they are all infected with some malignant form of "Love dear old State, right or wrong" disease. That’s just cynicism far beyond the pale of reason. If it can fairly be said that the athletics department was afflicted with this dire malignancy, it’s reasonable to believe that the rest of the university was not willing to see itself burned down defending such ghastly behavior.

It’s not the NCAA’s job to send "message[s]," but to fairly enforce the rules that the membership has agreed to follow. If Penn State cannot act within the ethical boundaries the NCAA lays out and properly address the malignancy, they should be expelled — that’s really not complicated or controversial — and the circumvention of that remedy by the NCAA could be seen as an attempt to let the school "buy" its way out of trouble while still keeping their financial potential firmly in the NCAA fold, while enhancing the NCAA’s public position at the same time. I find that disgusting in the extreme, if my speculation is right.

Instead of giving the existing system a chance to work, the NCAA short-cut the process, arguably making Penn State’s punishment lighter and less onerous than otherwise, and in the process failing to uncover the full extent of the unethical entitlement issue that Brandon writes so correctly and passionately about. If the Commonwealth of Pennsylvania acted to paper over the iniquity, the NCAA could have held the termination of Penn State’s NCAA membership over their heads like the Sword of Damocles to force a more robust solution, and rightly so. Who wants a school that will sweep child rape and abuse under the rug once it’s exposed in their membership?

Instead, the NCAA opened themselves up to criticism for acting outside their mandate and in contravention of their own procedures, forcing the courts to lay waste to their reasoning, and possibly letting the University off before all the cancer was excised. If it metastasizes later in the form of another scandal, the NCAA will be partly to blame, not for their early termination, but because their ham-fisted and lawless actions on the front end forced their hand and partially aborted the other processes, giving Penn State the "Have we not been punished enough?" argument.

Most opponents of the Penn State NCAA punishment argue from the position that the punishment was too harsh, and that it negatively affected too many athletes and fans who were innocent of any culpability. My position is that it may not have been harsh enough, and by stepping outside their rules rather than enforcing them properly, the NCAA may not have accomplished what they set out to do. The athletes were free to go elsewhere without prejudice or NCAA interference, so the "poor athletes" argument is patent nonsense, as Brandon correctly points out in his piece. They may not get to play where they want, but hey, we often don’t get what we want in life. Deal with it. The "poor fans" argument is a nullity — fans have no right to entertainment.

The ends of justice are best accomplished within the applicable framework of rules and laws, not by the ad-hoc extra-legal invention of new ones designed on the fly to deal with extraordinary circumstances, and to permit the expression of populist outrage rather than accomplish meaningful change. There is an old saying which would seem to have been wisdom in this case: "Hard cases make bad law."  In this scandal there were extraordinarily horrible criminal acts with associated malfeasance and professional negligence, all of which is addressed in our society, in Pennsylvania state and U.S. federal law, and in Penn State’s employment procedures. The NCAA needn’t, and shouldn’t, have intervened unless those remedies did not cure the malady, and then only with the threat of termination of membership, which was the only penalty they had available to them based on their own rules.

Would that they had thought of that before the courts had to explain the obvious.