Four Penn State Board of Trustees members have employed legal counsel and are appealing the NCAA’s sanctions against the Nittany Lions’ football program. The perfunctory appeal is a prelude to a federal lawsuit once the appeal is dismissed. As with the Paterno family, the act is desperate and the premise is flimsy.
The rogue BOT members are appealing for four reasons.
(1) They claim the PSU president did not have authority to agree to the consent decree.
(2) The NCAA violated purported “due process rights” in this case.
(3) The Freeh Report is invalid and, in places where it may not be invalid, does not violate NCAA bylaws.
(4) They believe the sanctions are excessive, unreasonable and harm those not involved.
Working backward. NCAA sanctions almost always affect the innocent. Claiming the sanctions are excessive or unreasonable is untenable, as it is impossible to quantify the crime within an NCAA framework. Is conspiring to cover up a child rape only a two-year bowl ban offense? Such a discussion could more easily flip and suggest the NCAA did not go far enough.
The Freeh Report made no claims to be a legally binding document. It was an investigation without subpoena power, intended to piece together what happened based on interviews and documentary evidence. Penn State commissioned that investigation. Penn State’s president and BOT accepted the results. There’s only a point if vague whining is replaced by specific, tangible and consequential flaws.
No “due process rights” exist within the NCAA. It is a voluntary membership organization. Emmert had the authority of the organization’s board of directors and by proxy the entire membership to act. That was all that was needed. Some semblance of due process would have been helpful and set a less troublesome precedent, but it was not required (no matter what general rights a former Navy Seal believes he fought for).
Any argument rests on the consent decree. Did Penn State president Rodney Erickson have the authority to approve it? He believes that he did. The NCAA believes that he did. Penn State’s BOT met, reviewed and expressed support for Erickson’s actions. Those facts should, regardless of individual disagreements, quash any NCAA appeal and potential federal lawsuit.
The only way the NCAA will remove the sanctions is of its own accord. Few would suggest that as even a realistic possibility, unless desperate to lure and keep players. The sanctions are staying. So what can we conclude from this mess? Besides some pissed off people having the wherewithal to hire attorneys to draft documents?
Penn State had a communication breakdown. (Shocking, I know.) Mark Emmert’s letter to Erickson in November 2011 spells out nine constitution articles and bylaws Penn State may have violated. It expresses the NCAA’s determination to investigate and act and asks for a response within a month (already dispensing with formal channels and customary time frame). NCAA action was delayed to let the Freeh Report finish. Either Erickson did not grasp the full ramifications of that letter or he did not communicate it effectively to the rest of the university. No one in the Penn State hierarchy should have been blindsided by the NCAA punishment.
The NCAA’s action was ineffectual. Sanctions will prevent Penn State’s football program from competing for the next decade, but the stated purposes for the punishment were to serve as a deterrent and to forcibly break down what had become a corrupt football culture. The first goal was already covered by moral abhorrence, criminal prosecution and an incoming civil suit. The second goal has not been accomplished. The punishment has only fortified the irrational “We Are…” mentality with fans circling wagons. Rather than assist a sober reflection and resolution to this crisis, NCAA punishments have redirected attention toward football and created an active impediment.
[Photo via Getty]