Sunday, July 22, 2012

In Anticipation of NCAA Sanctions Against Penn State: Asymmetric Process in the Service of Gesture

It appears to remain as true today, as it has in every age, that emotional issues tend to put tremendous pressure on systems built to provide people with an assurance of fair process consistently applied.  The horrendous crimes for which Mr. Sandusky has been convicted is now producing its perhaps equally important and necessary secondary effects--these targeting the institutions that made it possible for Mr. Sandusky to act virtually unimpeded.  

(Pix from Possible Penalties for Penn State, Onward State, July 22, 2012)

On Monday, the NCAA will add to the mix by announcing a set of sanctions against Penn State.  The sanctions decisions, like those of the Paterno statue, come fast on the heels of the Freeh Group Report.  That Report, for reasons unknown, appears to be taken more and more as some of "Truth" that may be unquestioningly accepted, perhaps based on some sort of blind faith in the individuals who produced it, or perhaps as a matter of convenience, and without any sense of a need to test the findings of the Freeh Group Report or wait for the conclusion of judicial or other proceedings where accused or implicated are given the opportunity to respond.  This is a difficult exercise, especially in periods, like this one.  Circumstances appear to call for swift action because of the nature of the crimes committed and its offense against law and moral standards. But the danger has passed, and a rush to judgment merely substitutes one kind of danger for another. The call of emotion is excusable in children; but we are not children.  We each in our own way are expected to serve our university, community and society precisely in those hard cases where the temptation to eviscerate process in the service of emotional release runs deep.  

Yet these are neither ideas nor values that trouble those who are paid to do better at the NCAA.  Its leaders are poised to impose sanctions without even the minimal due process protections of a Committee on Infractions hearing.  Hysteria and strategic calculation are sufficient to overcome duty and principle, it seems.  Sad.  And the satisfaction of the mob appears to be  reward enough.  Sadder still.  

Though they are formally scheduled to release their decision on Monday, by Sunday afternoon, ESPN was reporting leaks of the likely sanctions.  The ESPN report is set out below in relevant part--the emphasis from the original are mine.  What the reader may find most extraordinary is the irony. . . . the case against Penn State's administration in the Freeh Group Report centered on the willingness to cede virtually all authority over athletics to a small, unchecked, and unaccountable group of university leaders. The NCAA appears to be doing exactly the same thing in order to end-run process and race to judgement for reasons unknown.

NCAA: 'Punitive Measures' Await

NCAA president Mark Emmert has decided to punish Penn State with severe penalties likely to include a significant loss of scholarships and loss of multiple bowls, a source close to the decision told ESPN's Joe Schad on Sunday morning.

But Penn State will not receive the so-called "death penalty" that would have suspended the program for at least one year, the source said.

The penalties, however, are considered to be so harsh that the death penalty may have been preferable, the source said.

The NCAA will announce "corrective and punitive measures" for Penn State on Monday morning, it said in a statement Sunday. Emmert will reveal the sanctions at 9 a.m. ET in Indianapolis at the organization's headquarters along with Ed Ray, the chairman of the NCAA's executive committee, and Oregon State's president, the news release said.

It is expected the NCAA Division I Board of Directors and/or the NCAA Executive Committee has granted Emmert the authority to punish through nontraditional methods, the source told Schad.

The NCAA's announcement will follow a day after Penn State removed Joe Paterno's statue outside Beaver Stadium, a decision that came 10 days after the scathing report by former FBI director Louis J. Freeh found that Paterno, with three other top Penn State administrators, had concealed allegations of child sexual abuse made against former defensive coordinator Jerry Sandusky. The Freeh report concluded their motive was to shield the university and its football program from negative publicity.

The NCAA is taking unprecedented measures with the decision to penalize Penn State without the due process of a Committee on Infractions hearing.

The NCAA has a system in place in which it conducts its own investigations, issues a notice of allegations and then allows the university 90 days to respond before a hearing is scheduled.

Following the hearing, the Infractions Committee then usually takes a minimum of six weeks, but it can take upwards of a year to issue its findings.

But in the case of Penn State, the NCAA appears to be using the Freeh report -- commissioned by the school's board of trustees -- instead of its own investigation, before handing down sanctions.

"Unbelievable," said a Penn State trustee informed of the NCAA statement, speaking to senior writer Don Van Natta Jr. "Unbelievable, unbelievable."

. . . .

"Emmert has been given full reign by the pansy presidents (at other universities) to make his own decision," said the trustee, who spoke on condition of anonymity. "He has been given the authority to impose these unprecedented sanctions. It's horrible."

A former Committee on Infractions chairman and current Division I Appeals Committee member told's Andy 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."

NCAA presidents past and present have made a point of saying they are not akin to a commissioner in professional sports and don't have the power to penalize players, coaches or schools independently.

The former chair said the only "rule" that the NCAA could be holding onto here is a lack of institutional control.

"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.

. . . .

"The real question is whether or not under the overall rules and regulations of the NCAA do those in charge take action when it doesn't fall within the scope and realm of the normal infractions process," the former chair said. "This has nothing to do with a level playing field or competition. The NCAA is a voluntary organization and the schools sign on to be bound by the NCAA rules and regulations."

The chair added that the only connection to athletics was that the department was lenient to Sandusky and that some of his crimes were committed at the Penn State football facility.

"But this has nothing to do with NCAA business," the former chair said. "This is new. If they're going to deal with situations of this kind that have nothing to do with the games of who plays and so on and rather deal with members of the athletic department who act immorally or criminally then it opens up the door to other cases."

. . . .

"This is an important precedent. And it should be taken with extreme care."

Michael Buckner, an attorney who represents schools and coaches in NCAA cases, said the NCAA's course of action might even be unconstitutional for violating federal and state notions of due process.

. . . .

The NCAA is not following its existing enforcement processes, according to Buckner, and the lack of an outlined appeals process is also cause for concern.

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