Their View | Due process was lacking by NCAA and Penn State

NCAA President Mark Emmert handed Penn State unprecedented sanctions in 2012, a move that critics say overstepped the agency’s own bylaws and due-process practices.
NCAA President Mark Emmert handed Penn State unprecedented sanctions in 2012, a move that critics say overstepped the agency’s own bylaws and due-process practices. AP photo

There is no better time than the Fourth of July celebration of freeing Americans from the unreasonable control of the mother country to look at how an organization (the NCAA) came to illegally control the destiny of one of its institutions, Penn State.

Professor Emeritus Charles Snow wrote a reasoned piece (“ Move Forward with Barron,” June 10, CDT) about the Jerry Sandusky scandal and problems in crisis management at Penn State. Using his longtime study of management while at Penn State, he noted four major problems of crisis management and how knowledge of the literature in the field would have helped Penn State better manage the biggest crisis in its history. The four included “Lack of preparation,” “Rush to judgment,” “Ignoring fiduciary responsibility” and “Lack of courage.” While Professor Snow notes effective management by Penn State when he considers it appropriate, he takes Penn State to task for lack of any kind of crisis plan, mismanagement when the crisis occurred and a lack of courage in signing the NCAA consent decree that gave Penn State the harshest penalties ever by the national body.

As I have been studying the history of intercollegiate athletics since the 1960s, almost as long as the NCAA has had penalties for athletic violations, I would like to add to Snow’s analysis by looking at the NCAA policy for addressing perceived violations of NCAA rules. Though there have been two “Death Penalties” given by the NCAA in its history, there is no evidence that the threat of the “Death Penalty” has ever before been used, as President Rod Erickson described the situation shortly after the Louis Freeh Report was released in 2012. The first “Death Penalty” was given to the great University of Kentucky basketball team under Adolph Rupp in 1952 for recruiting violations, but more importantly because Kentucky was involved in the national point-shaving scandal of the late 1940s and early 1950s.

The second “Death Penalty” is better known: In 1987, Southern Methodist University, after years of major violations, was denied participation in football for a year. The NCAA dealt with 38 charges listed by the NCAA Committee on Infractions, including involvement with a future Texas governor, the president of the Board of Trustees, the president, Methodist Bishops, the athletic director, football coaches and football boosters — and cover-ups by many of them. In both cases, the NCAA investigated the charges of rule violations. In the Penn State case, there was no NCAA investigation.

Since then, Penn State was threatened with a “Death Penalty,” according to Erickson, and rather than accept “Death,” he alone signed a consent decree resulting in the harshest penalties ever handed out by the NCAA. But let’s look at the 2011-12 NCAA 426-page constitution, operating bylaws and administrative bylaws, which the NCAA leaders, including its legal advisers, should have read before handing out the illegal penalties. But Erickson and his legal staff should also have carefully read the NCAA constitution. It is not NCAA President Mark Emmert and other institutional presidents in leadership roles who should have been involved in any infractions assessed. The NCAA independent Committee on Infractions had clearly been given the responsibility for enforcing the NCAA program and “imposing penalties “ to “provide fairness …” Unfortunately in the Penn State case, the Committee on Infractions was illegally circumvented by Emmert and the rest of the institutional presidents who run the NCAA. According to the NCAA rules, when Penn State was sanctioned in 2012, the Committee on Infractions, not Emmert, would, by the NCAA bylaws, determine the facts in alleged violations and impose an appropriate penalty (Article 19.1.3).

Possibly more significant is the statement: “If in the opinion of Committee on Infractions … the penalty imposed under the provision may include a recommendation to the membership that the institution’s membership in the association be suspended or terminated” (Article 19.5.2). Thus it is not for Emmert to recommend or threaten the “Death Penalty.” If termination is recommended, it is the task of the independent Committee on Infractions. For the article concludes that “the determination of the action is appropriate in the fulfillment of NCAA policies and principles, and its resulting effect on any institutional penalty, shall be solely that of the Committee on Infractions.” It could not be more clear than this.

For decades, the intent of major NCAA penalties was to punish what the NCAA termed “repeat-violators” so that the “repeat violator shall be subject to enhanced major violation penalties.” Since Penn State had never been cited for a major violation of NCAA rules (though several minor ones) during more than 100 years of NCAA history, it is difficult to fathom Penn State sanctions far more severe than “repeat-violators” have ever received. In addition, Penn State received sanctions based upon no specific violations of NCAA rules. Specifically, the NCAA does not deal with criminal violations, only violations of intercollegiate athletic rules. The illegal action of the NCAA to punish Penn State while not following its own bylaws is a travesty of the American concept of due process seen in state laws and found in the Fifth and Fourteenth Amendments of the U.S. Constitution. The NCAA did not even follow its own due process policies, even though it doesn’t have to follow the U.S. Constitution because it not considered a “state actor” in the courts of law.

The problem for Penn State came when a new president, Erickson, naïve of NCAA rules and with almost no knowledge of or previous interaction with the NCAA, plainly did not ask enough informed people what might happen if he did not sign the NCAA consent decree. He rationalized his decision, but he missed the mark. With something as important as the consent degree, Erickson should have been brought in a team of experts and forwarded recommendations to the policy makers at Penn State, the board of trustees. Time should have been taken, no matter how rushed the NCAA seemed to be and how great Emmert’s illegal threat of a “Death Penalty” seemed eminent. The Penn State president and the trustees failed in their attempts to put behind them a crisis that would not go away. A problem that is not going away is no more clearly seen than among every trustee member up for re-election. Overwhelmingly, every trustee who voted to get rid of Joe Paterno and president Graham Spanier has been overwhelmingly defeated. Due process was lacking both on the part of the NCAA and Penn State.