NCAA Has Authority to Give Penn State Death Penalty

Published on: November 17, 2011 | Written by: Clay Travis

With last night's New York Times revelations of a growing Penn State cover-up, it's now beyond a shadow of a doubt that this story is the largest American sports scandal of all-time. The Chicago White Sox throwing the World Series, the SMU paying players scandal, steroids in baseball, all of them pale in comparison to the seaminess that is emerging in Penn State. The only real comparison is the Baylor murder scandal and cover-up, but the scope of Penn State's transgressions -- all the way to the college president and, potentially, the Governor's office -- and the sheer amount of time involved -- a decade or more -- in conjunction with the iconic nature of Joe Paterno and the hits to his legacy involved, takes this to a completely different and unprecedented level.

When else has a story rooted in sports been the lead story on the nightly news or the local morning shows for over a week? (O.J. Simpson doesn't count since he was just a sports figure who committed a murder. What's more, O.J.'s career was long over by the time this happened. Tiger Woods doesn't count since his story was more akin to a politician caught cheating. That is, his scandal had nothing to do with sports.) Penn State's inaction in the face of a child's locker room rape goes to the very essence of intercollegiate athetics -- a former coach, who very likely was fired from his job for molesting children after a 1998 investigation, was terrorizing children on campus and a college's leaders conspired to keep those acts secret.  

What's more, the very power of the sports team and the power of the coaches involved was the reason this story didn't go public.

For those who doubt that power mattered in this case, let me ask you a question, does a Penn State chemistry professor get away with Sandusksy's crimes if a chemistry teaching assistant witnessed him raping a child in a chemistry lab and took it to his boss?

Yeah, didn't think so.

This is such a major scandal that the two most illuminating Penn State scandal comparisons at this point aren't even from the world of sports. The first comparison that comes to mind is the Catholic church's scandal on child sexual abuse. As one of the top lawyers involved in litigating on behalf of child sexual abuse victims told OKTC, "This situation is perfectly analogous to all the Catholic church cases I've litigated." The second is political -- Watergate. In both instances you had people in positions of power who facilitated the crime by either looking the other way or covering up the acts.

Needless to say, when these comparisons come to mind, we've reached a level of scandal with no adequate comparison or precedent. We're truly in uncharted sports waters right now.    

And I feel like we're still only touching the tip of the scandal iceberg. Before all is said and done, this story is going to make us even sicker than we are already.

That's because Penn State's failure reaches beyond sports and goes to the very heart of the university. This is a moral failing of the highest world order, a time when many decent people chose to do nothing and a monster ruled in Happy Valley. If this isn't lack of institutional control, many of you have asked me, what is? After all, if your athletic director, school president, and many other figures could end up in jail for helping to cover-up a felony rape charge at least ten years in the making that could lead to Sandusky's life imprisonment -- how can you argue that anything other than the college sports death penalty is justified?

Put simply, you can't.

Penn State deserves the death penalty in football. (For those who want to argue about repeat violator status, Penn State has known since 1998 that a child rapist was in its midst. At the time that it first became aware of the action, Sandusky was still an assistant coach. Yet it did nothing. Not. One. Thing. That's 14 years of inaction covering multiple distinct events. If that's not repeat violation, I don't know what is.)

No reasonable person can dispute this fact. But, and this is more of a moral issue, have Penn State's transgressions so far exceeded the bounds of intercollegiate athletics that even the death penalty seems too insignificant of a penalty at this point? In other words, are Penn State's failings so severe that any NCAA penalty ends up being trivial in light of the victims involved? Can countenancing child sexual abuse ever be quantified with a punishment within the scope of current NCAA rules?

It's a tough and difficult question, one that reasonable minds can differ when considering. While the NCAA has issued statements saying it's monitoring the Nittany Lion situation, no one has really looked at the NCAA rulebook to see whether there might be any rules that could permit the NCAA to act in a situation such as this. After all, the NCAA rulebook isn't designed to punish felons, it's designed to catch students for receiving free lap dances or tattoos or coaches for hosting improper BBQs.

Remember when those were big stories?

OKTC read the NCAA manual from cover to cover seeking expansive rules that could act as catch-all provisions that could be used to justify any NCAA penalty. If you'd like to read the NCAA manual yourself, here's a link:

Before we dive into the NCAA rulebook, no one has focused on the fact that former Penn State coach Jerry Sandusky is a "representative of the athletics interest."

How do we know this?

Let's go to the rulebook. The NCAA defines a representative of athletics interests as follows:

13.02.14 Representative of Athletics Interests.

A “representative of the institution’s athletics interests” is an individual, independent agency, corporate entity (e.g., apparel or equipment manufacturer) or other organization who is known (or who should have been known) by a member of the institution’s executive or athletics administration to:
(a) Have participated in or to be a member of an agency or organization promoting the institution’s intercollegiate athletics program;
(b) Have made financial contributions to the athletics department or to an athletics booster organization of that institution;
(c) Be assisting or to have been requested (by the athletics department staff) to assist in the recruitment of prospective student-athletes;
(d) Be assisting or to have assisted in providing benefits to enrolled student-athletes or their families; or
(e) Have been involved otherwise in promoting the institution’s athletics program."
 

As a former coach Sandusky definitely fits the NCAA definition based on the above prong. (There are also reports that Sandusky has donated money to the university and conducted football campus using Nittany Lion logos and insignias which would mean he fits more than one prong of the definition.) But maybe you're thinking, okay, he was a coach until 1999. Surely he's not still a representative of athletics interests. You'd be wrong.

See the next bylaw.

13.02.14.1 Duration of Status.

"Once an individual, independent agency, corporate entity or other organization is identified as such a representative, the person, independent agency, corporate entity or other organizationretains that identity indefinitely."

Why is it important that Sandusky is a clear representative of athletic interests?

Because not only did Penn State fail to report Sandusky's alleged child molestation to authorites, it never even disassociated him from the program. That means that all of Sandusky's conduct, unethical and otherwise, remains Penn State's responsibility under NCAA rules. Especially when that conduct occurs on campus, in a restricted area that Penn State permits limited access to, and that conduct was witnessed by a current coach, Mike McQueary. McQueary than passed along that information to Joe Paterno, who then notified athetlic director Tim Curley and school president Graham Spanier.

That's huge. Penn State is directly complicit in a heinous crime, yes, but it's also directly complicit in major NCAA violations under the existing rulebook. 

These violations are of such a substantial and egregious nature that the Penn State football team could be subject to the death penalty. (After all, if this isn't death penalty worthy, what is?) 

(Some may argue, okay, what if Sandusky had, say, blown up a plane, would Penn State athletics be in violation of NCAA rules? The answer is probably not. That would be an act completely divorced from Penn State athletics. But if, say, Sandusky committed a murder in the Penn State locker room and that murder was witnessed by a Penn State coach who later did nothing. Or, as is the case with the sexual abuse, told his coach and that coach and other administrators did nothing, that would constitute an NCAA violation under existing bylaws.)

Keep reading, we'll explain.

Now let's read the NCAA rulebook with this background established. 

The NCAA requires: 

2.4 THE PRINCIPLE OF SPORTSMANSHIP AND ETHICAL CONDUCT [*]

"For intercollegiate athletics to promote the character development of participants, to enhance the integrity of higher education and to promote civility in society, student-athletes, coaches, and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility. These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program."

I've bolded the language at the end of this rule, because it is broad enough to allow NCAA action if the organization desired to act under the scope of this rule. 

Was is ethical for Penn State coaches, athletic administrators and the president of the institution to cover up child sex abuse? Certainly these unethical acts would fall within "the broad spectrum of activities affecting the athletics program." 

The NCAA could enforce penalties under this prong if it so desired.

10.01.1 Honesty and Sportsmanship.

"Individuals employed by (or associated with) a member institution to administer, conduct or coach intercollegiate athletics and all participating student-athletes shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, shall represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports."

Again, broad language that I believe the NCAA could cite in choosing to discipline Penn State. They key is that the language includes not just Paterno and other employees, but Sandusky as well. But here comes the provision that is an absolute slam dunk violation.  

10:1 Unethical Conduct

Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member, which includes any individual who performs work for the institution or the athletics department even if he or she does not receive compensation for such work, may include, but is not limited to, the following:

(d) Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant
to a possible violation of an NCAA regulation;

This prong of the NCAA rulebook is a slam dunk which nails down a clear NCAA violation because while Sandusky may not have been a current coach at the time of his acts, he was certainly a representative of the athletic department's interest. That is, Sandusky was bound to comply with the Unethical Conduct provisions of the NCAA rulebook because he was a "former institutional staff member, which includes any individual who performs work for the institution or athletics department even if he or she does not receive compensation for such work."

That's clearly Sandusky. 

Why is this important?

Because if Sandusky is behaving unethically then Joe Paterno has an NCAA obligation not to provide "false or misleading information" about Sandusky's unethical conduct to Penn State. As soon as knowledge of Sandusky's unethical acts reached the athletic director and president via Paterno those men had a clear obligation to act under Pennsylvania law. But they also had an obligation to act under NCAA rules. That is, Paterno and his ilk had an obligation not to provide false or misleading information to "the individual's institution."

Did Paterno convey the full scope of McQueary's report to him? If not, he violated NCAA rules. Did the athletic director convey the full scope of McQueary/Paterno's report? If not, he violated this rule. How do we know these men didn't meet their ethical obligations? Because multiple administrators in positions of authority were charged with perjury for downplaying the details that McQueary provided to them. That is, they provided false or misleading information about an individual's unethical conduct.   

There is no doubt that the NCAA could levy penalties against Penn State for violating the ethical obligations under 10:1(d). 

That's an open and shut case.   

19.01.2 Exemplary Conduct.

Individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young
people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.

Look at this language. I've bolded all of it. Once more, Sandusky is actually included within the scope of the rule: "employed by or associated with member institutions."

It's not just that Joe Paterno, athletic director Tim Curley, president Graham Spanier, and potentially more individuals still to be implicated are subject to NCAA regulations, Sandusky himself was a representative of athletic interests which means all of his acts that violate NCAA rules are the responsibility of the institution. Can anyone reading this NCAA bylaw argue that Penn State's coaches and administrators haven't violated it?

Of course they've violated it. They're being charged with perjury for a case involving a former coach that arose in their very locker room. That's a bit more wrongdoing than "avoid(ing) improper conduct or questionable acts." Do you think that Penn State athletes have been "influenced by a fine example" from these coaches and administrators?

How much did Penn State cover up Jerry Sandusky's child rape? So much so that they never even managed to officially disassociate him from the program. That failure means that Penn State's football program is subject to severe NCAA penalty. The NCAA most certainly can penalize Penn State.

Now, that returns us to the question that began this column, should the NCAA act to severely sanction Penn State football?

Penn State has behaved so abhorrently that some may feel that NCAA sanctions are an insult to the victims. I can respect that position. But if the NCAA does choose to punish Penn State and delivers anything less than the death penalty, then it has failed.

Because Penn State definitely deserves the death penalty.

...

Update: The evening after OKTC ran this story, NCAA president Mark Emmert acknowleded the applicability of ethics bylaws in regard to Penn State in an NPR interview:

Mark Emmert: Well we have rules and bylaws that -- while they were never written to address anything quite like this of course -- they speak directly to the control that institutions have to maintain over their athletic departments and their programs. And they speak very directly to ethical behavior of people in those programs and we'll apply those bylaws, and if the allegations hold up, then we'll act accordingly.

Then today the NCAA officially released a letter of investigation to Penn State specifically enumerating the bylaws we wrote about yesterday.

So you can read OKTC, or you can wait for the news to catch up with what we tell you is coming. Your choice.