Sports Law Blog
All things legal relating
to the sports world...
Sunday, September 29, 2013
Then how do you enforce rules?

I am going to take issue with Geoff on this: Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.

Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?

All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.


The problem with punishing Penn State, by the NCAA, is that 1) there is no direct connection between sports and the Sandusky situation. It would be like firing the CEO of IBM for an employee stealing a car. 2) The NCAA has no power to regulate the school, only sports within the school. Do we want to give the NCAA power to regulate how Chemistry is taught? 3) Why punish people that have not been involved? This happened, and we still don't know if anything untoward happened as the criminal system has yet to speak, in 2001.

In the end, this is a criminal matter. There is a system of checks and balances in a criminal matter, and these have yet to play out. It is now clear Paterno, as admitted by the lead prosecutor, was not party to any kind of "cover up" and did what he was legally required to do. Do we now, as a society, go back ten years and re-litigate based on unwritten rules?

Blogger Tom Litwinowicz -- 10/02/2013 9:26 AM  

## 1 and 2 are up for debate and reasonable minds will differ. But my point was not about the propriety of this punishment.

My point is counter to your # 3: An institution *always* can and will say that you shouldn't punish people who were not involved. But this means the institution can fire the people involved or have them leave through the ordinary four-year attrition of college, then avoid misconduct by saying "don't punish the current people who weren't there."

Blogger Howard Wasserman -- 10/03/2013 7:51 AM  

Post a Comment