Sports Law Blog
All things legal relating
to the sports world...
Sunday, July 22, 2012
"Unprecedented": You keep using that word, I do not think it means what you think it means

Some quick thoughts on the rapid developments at Penn State on Sunday and in anticipation of Monday's announcement of NCAA sanctions. As a starting point, I am generally agnostic both about whether the statue should have been removed and whether and how the NCAA should sanction Penn State; I see the arguments on both sides.

1) The Paterno Family objects to the removal (not surprising). Their starting argument is that the removal "does not serve the victims of Jerry Sandusky's horrible crimes or help heal the Penn State Community." No, it probably doesn't. But it also doesn't matter. There are other things that Penn State may want to achieve besides serving the victims, including making a statement against what Paterno did and disassociating the school from that.

Also ringing hollow is their insistence that we do not know the whole story or all the facts. Amid all the noise, I have never heard the family flat-out deny that JoePa knew about either the 1998 allegations or that he was told of the initial plan in 2001 to report Sandusky to authorities. Their argument, in essence, is that it is wrong to take down the statue because it unfairly singles him out, when he was not the major wrongdoer. But Paterno is being "singled out" only because he is the only one who had a statue on campus.

2) I am dubious about all the talk about the "unprecedented" nature of the expected NCAA sanctions. The program will not be suspended or given the "death penalty," but reportedly will suffer a loss of scholarships and loss of bowl opportunities. But that sounds like the typical punishment for major violations, including what USC received a few years ago. Unless the number of lost scholarships or the length of the postseason ban is so great (say, 10 scholarships a year for more than five years and a bowl ban of 5-10 years), I am not sure what is so unprecedented.

The University reportedly also will be fined between $ 30 million and $ 60 million; that could be the unprecedented part, called by one source "a fine like no fine before." But I am not sure how a big fine that targets the university and not the football program, while perhaps unprecedented, is uniquely damaging to the program, especially as compared with shutting down the program for a year. Finally, the NCAA arguably has departed both from its own procedures (no hearing, no investigation, using special processes with the express permission of the NCAA's board of directors) and its own substantive limitations (sanctioning for actions that have nothing to do with the NCAA's rules and everything to do with the university's connections to the civil and criminal justice systems). That is unprecedented. But that just may be another way of saying the NCAA is treading into dangerous waters and will be forced to present clear and forceful justifications in support of these sanctions.

A source in the stories linked above said Penn State might have preferred a flat one-year ban, suggesting the effects of the scholarship reductions, bowl ban, and fines will be felt longer. One source argued that saying this is not the death penalty is just semantics. I am hard-pressed to imagine a body of sanctions that really will make PSU folks wish the NCAA had just shut them down for a year or two. But forget the noise from pundits and sources about "never see[ing] anything like it." Consider how quickly USC bounded back from its loss-of-scholarship/bowl-ban sanction. Unless the NCAA delivers something an order of magnitude beyond that, I cannot conceive of these sanctions doing to Penn State what the death penalty did to SMU. Obviously, we will see tomorrow.

3) I heard a radio interview tonight with ESPN's Jay Bilas. He questioned whether this case means that the NCAA has to get involved in other cases of student-athlete criminal misconduct that touches back to the team, the athletic department, or the university.  He uses as examples Duke lacrosse (which could be an example of lack of institutional control, although going in the other direction) or the murder of U Va women's lacrosse player Yeardley Love by men's player George Huguely. Is this a new realm for NCAA enforcement? Or is this case simply sui generis?


Great. So the non-football areas of the school get (searching for word appropriate to family blog) screwed because the football program runs the school.

Which only perpetuates the football program running the school.

If I'm a head coach, I'm looking for the best staff of pederasts I can find, knowing that the problem will make more money and that the NCAA will, as usual, turn a blind eye.

To coin a phrase, "this wouldn't be happening if Kennesaw Mountain Landis or Mark A. Emerett were still alive."

Blogger Ken Houghton -- 7/23/2012 8:30 AM  

Sui generis is the word. Since when does the NCAA barge in to what are basically criminal matters, which are supposedly the exclusive province of the state?

I'm no sports law expert, but has the NCAA *ever* hit an institution like this (or a player, for that matter) for criminal activity? What happens to the countless collegiate athletes each year who are arrested for DUI or possessory offenses? Surely their own institutions hit them, but does the NCAA?

As to the use of the term "unprecedented" I don't think the severity of the punishment is that much worse than USC, but perhaps what is unprecedented is the use of the infractions committee for THIS TYPE of offense. USC, SMU, MSU etc. were all about unfair competitive advantages, and that is what the NCAA is there for. If you really stop and think about the underlying offenses here, they have very little to do at all with football. It's just that they took place in the context of football operations.

Blogger Unknown -- 7/23/2012 1:21 PM  

In the end, I think Unknown is right. What was unprecedented was the fine and the process that was followed. The sanctions that will affect the program going forward are not so much worse than other schools receive. Expect to see Penn State at least competing for the Big 10 title within 8 years (4 years after the end of the sanctions).

Blogger Howard Wasserman -- 7/24/2012 2:54 PM  

Post a Comment