College Football: Penn State Due Process Fallout
By Thomas Watts
The purpose of this story is not to dispute whether Penn State deserved sanctions. Instead, it is meant to examine the process, or lack thereof, that the NCAA chose to undertake to determine those sanctions.
What is the accepted sanctioning body within the NCAA? The Committee on Infractions. They have a very specific process that starts with a notice of inquiry, followed by a thorough investigation that culminates in a final decision. Alabama fans are familiar with the entire rigmarole due to Albert Means and the defamation suits that arose out of that scandal. The entire apparatus can take years to complete. One of the primary knocks on the process is the delay.
The NCAA decided to circumvent its own process and empower NCAA president Mark Emmert to hand out sanctions in the Penn State case. The interested parties accepted the Freeh Report as the defining factor due to the report’s scope. Since the NCAA has handed down their sanctions, the Freeh Report has been changed and edited. While the edits were primarily clerical in nature, changes were still made. It is also important to realize the report itself is incomplete due to the continuing legal actions surrounding some of the key players in the entire saga, such as former administrators Tim Curley and Gary Schultz. Mr. Freeh even acknowledged such in the introduction of the report. Put bluntly, the Freeh Report is not fundamentally invalid, but it is a flawed document to use as the primary basis for sanctioning the Nittany Lions.
The NCAA chose to sanction anyway. In doing so, they set a precedent. Any argument that it has not set a precedent is pure bollocks. What constitutes a “basis” for exercising such powers is a fickle thing and can change based on many external factors. In the case of Penn State, there was a strong argument ignoring the normal investigative process. The public was disgusted by the entire ordeal and gave its proverbial rubber stamp on the proceeding. What about the next thing? Society is in a constant state of flux. Demographics change. What was unacceptable fifty years ago may be acceptable and potentially even lauded today. Need a concrete, albeit benign example? Consider the history of bathing suits for women. What is acceptable now would have been unheard of then. Basing a far-reaching decision on changing societal attitudes is an extraordinarily slippery slope, no matter what the reason.
Precedent aside, the speed of the Penn State sanctioning process is unnerving. The NCAA acknowledged it was waiting on the Freeh Report and Penn State’s response to the NCAA’s own inquiry to decide whether to become involved. While there were almost certainly discussions between the parties after the report was issued, the decision to sanction was made very quickly. It also had a distinctly unilateral feel to it. After all, Penn State has now said that it had no choice but to consent, to avoid a more devastating four-year death penalty. Speedy, unilateral decision-making has been a hallmark of dark times in world history. Robespierre and his Reign of Terror eviscerated a large percentage of French society using that methodology. Are Mark Emmert and Robespierre, one of history’s greater villains, on the same level? No, they are not, but the parallels in methodology exist just the same.
The speed with which the NCAA acted is actually backfiring. The Paterno family, as well as members of the board of trustees and former players, have all asked for a chance to appeal the sanctions on Penn State. The NCAA has thus far invoked its bylaws to deny those appeals, by stating that a consent decree cannot be appealed. Much like Tim Curley and Gary Schultz, it appears the NCAA will have to answer for its actions in the Penn State matter in court if the NCAA continues to stonewall.
The scandal surrounding Penn State and Jerry Sandusky has produced no victories for any party. Penn State has been decimated, the victims still deal with Sandusky’s actions, and the NCAA has its own black eye from discarding its own due process rules and empowering Mark Emmert. The slippery slope that the NCAA begun to descend will have far reaching consequences. What those are remain to be seen and will depend on the types of situations that future NCAA presidents find themselves having to manage.
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