Penn State Goings-On

[Barrister]

Let him go, he is on a roll.

I for one appreciate a subtle Animal House reference.

[sbr]

Let him go, he is on a roll.

I for one appreciate a subtle Animal House reference.

 

I had to check IMDB after I posted that and according to them I didn't get it quite right.  They say it was:

Forget it, he's rollin'.

But I appreciate that someone was able to get it.

[Rasputin]

Does this change anything with the law-talkers in the house?

http://espn.go.com/new-york/ncf/story/_/id/8191027/penn-state-hit-60-million-fine-4-year-bowl-ban-wins-dating-1998

What did Penn State sign?

Munson: When Penn State president Rodney Erickson signed the consent decree imposed by the NCAA, he and the school agreed not only to the punishments but also to the monitoring, the supervision and to an enforcement process. This is not just a settlement contract. It is the document that governs enforcement and provides for penalties if Penn State screws up.

These agreements are typically negotiated by two organizations in the middle of a dispute. There is no indication of a negotiation or even a minimal role by Penn State or its president and his lawyers. A typical decree would say that Penn State neither admits nor denies wrongdoing. This decree is all about wrongdoing with Penn State admitting everything.

Consent decrees are ordinarily sterile legal documents, but this one expresses outrage. The decree states the evidence against Penn State "presents an unprecedented failure of institutional integrity leading to a culture in which a football program was held in higher esteem than the values of the institution, the values of the NCAA, the values of higher education, and, most disturbingly, the values of human decency."

Penn State did not negotiate this document. Penn State surrendered to the terms of this document.

It is possible for a wealthy alumnus, a season-ticket holder, a coach, a taxpayer or even a student-athlete to file a lawsuit challenging the sanctions and the consent decree. But any lawsuits are doomed to failure. Erickson's signature on the consent decree means that the university has agreed to the sanctions and to be bound by them for five years.

No one has the standing or the authority to challenge what Erickson and the university have agreed to do. Penn State expressly agrees that it cannot be challenged with "judicial process." Anyone who files a lawsuit would face not only an early dismissal of the case but also the payment of the legal fees incurred by the NCAA and Penn State as they obtain the dismissal. The lawsuit would be an expensive failure.

-- Lester Munson

pdf of the decree:

http://a.espncdn.com/pdf/2012/0723/pennstateconclusions.pdf

Yes; given that penn state signed a consent decree I am not as concerned about its not having due process as penn state waived it. I remain troubled by the NCAA's power grab but will soon be over it if the NCAA will reset it's sights on Miami (of fla) whose misconduct violated specific rules and whose misconduct impacted the playing field.

I would be content if the NCAA waived its magic post facto game wand and merely ruled that all field goal attempts against Miami from 1991 to 2001 were ruled good.

[Rasputin]

Whether the facts are true or not is immaterial to whether penn state had the right to respond. Perhaps penn state might have indicated freeh missed something material.  Perhaps penn state might have admitted the facts but contested the authority of the NCAA to regulate how penn state deals with the misconduct of a former coach whose heinous misdeeds and the cover up by the school, institutionalizing and aiding in the crime, never provided penn state with a competitive advantage on the field. Perhaps penn state would've just committed suicide like himmler and fallen on its sword. We don't know, but before judgment was rendered we should've.

I'm missing something.  Where was Penn State not given a chance to challenge anything?  The NCAA acted like they always do:  investigation, subject institution response, decision, announcement.  If this is "mob rule" then the term has no meaning.

The NCAA did not follow its own rules. That was the source of my objection.

[Rasputin]

My Google-Fu led me to some random forum where I found this.  No idea who the guy is but his argument is long the lines I have been thinking, just expressed properly.

From what has been written, Penn State will accept the penalties proposed by the NCAA. Thus, by accepting the penalties (in essence, pleading guilty), they are waiving any due process rights they may have.

If Penn State did not want to accept the penalties, they could appeal. They would go through the administrative appeals process initially, and if they failed to overturn the penalties, they would have then gone through the court system.

If they wanted to go through the court system immediately, they could go to federal court and ask for an injunction against the NCAA in order to prevent them from enforcing their penalty. A judge would decide whether they were entitled to injunctive relief. Even if no injunction was issued, Penn State could go to trial against the NCAA.

My point is that I don't see where anyone's due process rights are being taken away, including Penn State's. Of course, there is no assurance they would get injunctive relief, win in court, or win anywhere. However, Penn State would not have to win the case in order to have been given due process...due process would have been afforded them with a hearing or hearings as described, above, where they would be given a chance to have argued their case before their property was taken from them.

Ok I see now.  The fact that they agreed to a punishment that was pronounced without due process means they waived due process.  That is some special kind of logic.  If PSU had waived having a fair determination (which would be exceedingly odd for them to do) before the disciplinary decision was handed down that would deflate any argument they were entitled to it.

But this is different.  Here the NCAA came to a decision without due process and its a take it or leave the NCAA proposition.


I am not sure what court process is available to PSU.  If the law in the US is the same as it is in Canada the courts would likely not interfere in the decision of a domestic tribunal such as the NCAA.  Which, again, given the consequences of the decision, is why the NCAA should strain to ensure its decisions are arrived at in a fair manner.

as I read it they were asked to sign a consent decree that waived due process and agreed to the process. Penn state was clearly denied due process but at the end, before institution of sanctions, penn state chose not to object and agreed to it. It's a bit harder to get worked up over the issue when penn state doesn't seem to care.

[Rasputin]

The reason the NCAA had to cite other reasons is because there is nothing in the NCAA rules dealing with this because the NCAA was never set up to take over criminal or civil jurisdiction - and yet that is exactly what they have done.

Nah, those are still in the hands of the court system.

Exactly the point.  The NCAA has penalized conduct which is before the courts and over which the NCAA has no jurisdiction at all.

That would've been my argument had I been penn state's counsel and i believe it may be correct.

[Malthus]

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment.

It's not a great target, but it's a necessary target.  PSU is an extreme example of what can happen when a man or program becomes more important than the institution, but it isn't the only case.

What's wrong with specifically identifying and punishing the actual wrongdoers?

Do some research, and you will find out that this was done as well.  We needn't make a choice between sanctioning an institution for allowing one of its programs to proceed without checks and balances, and punishing individual perpetrators.  We can do both.

I know it was done. What I'm questioning is why it is necessary to punish the institution.

It can't be a matter of actual, specific, individual deterrence, since as you have stated the actual individuals actually responsible were in fact punished, and it defies belief that having (say) a restriction on scholarships is a really necessary or effective deterrence to those persons fired or jailed.

It must be a general deterrence to the organization itself - implying that the institution can and should have done something different, that they are at least in part responsible.

Is the target of the deterrence the governing body? That indicates that the governing body is at fault, that they failed in their duty. This is however not proven. Where top administrators conspire to commit a crime, what exactly can the Board do to stop them, preemptively? Can they hire private investigators? Should they? Do they have a positive duty to do so?

That seems problematic to me.

What we have left is deterrence aimed at the "culture" of football itself, within the institution. That to me is problematic. It is true that "culture" can influence actions, but it seems bad policy to aim punsihments at "culture", rather than at individuals - even when one can do both.

Not that I care one whit about college football, let alone this specific university. 

[jimmy olsen]

What we have left is deterrence aimed at the "culture" of football itself, within the institution. That to me is problematic. It is true that "culture" can influence actions, but it seems bad policy to aim punsihments at "culture", rather than at individuals - even when one can do both.

Not that I care one whit about college football, let alone this specific university.

Why? The US has often tried to change the cultures of it's enemies or of certain subcultures within it's own society. Sometimes with success, sometimes without it. Why shouldn't the NCAA be able to do the same?

[grumbler]

I know it was done. What I'm questioning is why it is necessary to punish the institution.

Well, it isn't "the institution" that is being "punished," but the program.  And the reason it is being "punished" is that it fostered a culture in which janitors, for instance, knew what was going on but feared to speak because they were convinced that the program's leadership was okay with child rape.  Such a program and culture isn't going to fix itself; individuals can be puniished for specific crimes, but you also need to shock the program out of its crime-tolerating culture, and incentivize other programs to look to see if they are not vulnerable to that sort of culture themselves.

It can't be a matter of actual, specific, individual deterrence, since as you have stated the actual individuals actually responsible were in fact punished, and it defies belief that having (say) a restriction on scholarships is a really necessary or effective deterrence to those persons fired or jailed.

Not sure who you are making this argument to, or what argument you think you are countering.

It must be a general deterrence to the organization itself - implying that the institution can and should have done something different, that they are at least in part responsible.

It must be?  I won't argue with argument by assertion.  I'll just note that is an argument by assertion.

Is the target of the deterrence the governing body? That indicates that the governing body is at fault, that they failed in their duty. This is however not proven. Where top administrators conspire to commit a crime, what exactly can the Board do to stop them, preemptively? Can they hire private investigators? Should they? Do they have a positive duty to do so?

The target of the deterrence is all boards of governors/directors/regents, as well as school administrations.  They have an oversight responsibility, and the responsibility to make sure that the employees of the institution know that the board will step in if the employees indicate that the administrators are out of line.  The tolerance of Sandusky wasn't a secret known only to a few at the top.

What we have left is deterrence aimed at the "culture" of football itself, within the institution. That to me is problematic. It is true that "culture" can influence actions, but it seems bad policy to aim punsihments at "culture", rather than at individuals - even when one can do both.

It isn't problematic with me.  I'd have preferred the university do it to themselves, but PSU's board and president were remarkable for their passiveness even after the shakeup at the top. 

[jimmy olsen]

Wow, the University let Sandusky run over night camps on campus as recently as 2009.

http://deadspin.com/5856887/as-recently-as-2009-jerry-sandusky-was-running-an-overnight-football-camp-for-kids-on-penn-state-campuses

My uncle is really good friends with Curley, to the degree that when he goes up to PSU games (he's an alum) he stays at Curley's house.  I'll be interested to hear his take on this whole fiasco.

So, Cal, any news on this front? What's been your uncle's reaction?

[ulmont]

The reason the NCAA had to cite other reasons is because there is nothing in the NCAA rules dealing with this because the NCAA was never set up to take over criminal or civil jurisdiction - and yet that is exactly what they have done.

Nah, those are still in the hands of the court system.

Exactly the point.  The NCAA has penalized conduct which is before the courts and over which the NCAA has no jurisdiction at all.

That would've been my argument had I been penn state's counsel and i believe it may be correct.

If only the NCAA rules barred "unethical conduct" by an athlete or employee / former employee of the institution, then the NCAA would have had some way to act!

...wait, what's that again?  Section 10.1?

[The Minsky Moment]

The question is - can an organization be subject to collective punishment for the bad acts of its agents or constituent members?  Seems like the same thing to me.

My question is how else could you do it?  The NCAA has very limited ability to punish individuals.

It's been answered already in this thread - there exist other institutions who do have this power and have not been shy about exercising it.  The situtation might be different if we were talking about pseudo-"regulatory" matters like the NCAA's own internal rules about recruitment, etc. which don't implicate any background societal rules.  The Attorney General is not going to enforce recruiting violations.  But you do have a situation where a voluntary association can decide the terms on which the associations is based and who can and should be admitted or expelled - assuming that antitrust concerns are not implicating.

Of course that same analysis can be used to support the NCAA's power to do what they have done to Penn State.  The question is whether that is appropriate under the circumstances, or whether this is just the NCAA beating its chest and expressing moral outrage.  Because when I look at the sanctions, they seem notable for the fact that they have little impact on any of the wrongdoers and lots of impact on innocent parties:

+$60 million - this is basically confiscating endowment money given in good faith by innocent donors, which the likely effect of harming faculty, students and the university's academic mission.  None of the individuals who committed the bad acts are harmed by this.

+ postseason ban: punishes the innocent student-athletes who previously committed to PSU and now are deprived of the opportunity to participate in bowl games for events that occured years ago that they had no responsibility for.

+ Stripping past wins: a sanction that only Orwell could dream up of - and an attempt to erase the historical achievements of thousands of totally innocent student-athletes.  And to what end?  So that a now dead ex-coach can be moved down a few ranks in the official NCAA W-L records?

The fact is that none of the bad actions here were committed by a "program".  Abstract nouns don't rape children and they don't cover up rape.  Actual human beings do these things.  Here the actual human beings that committed bad acts have been subject to the full investigatory powers and sanctions of the state.  And if that is not deemed sufficient, and the NCAA wants to punish those who it believes were negligent in supervision - then IT SHOULD DO THAT. 

I.e., something like this:
PSU has __ months to fire every administrator involved in the cover up, and replace every Trustee/Board member resonsbile for selecting and supervising those administrators.  PSU shall put in place the following rules and procedures (Exhibit A) to make sure this doesn't happen again.  If PSU doesn't comply, we will kick them out of the association for good.

Something like that would target that actual individuals responsible, and put everyone else similarly situated on notice, while at the same time not causing collateral damage to innocent students, faculty, donors, alumni, etc.

What the NCAA had done instead is the opposite - impose a set of draconian measures that leaves the guilty parties essentially untouched while harming just about everyone else - all in the name of whipping the hell out of some abtract construct - "The Program"

[jimmy olsen]

+$60 million - this is basically confiscating endowment money given in good faith by innocent donors, which the likely effect of harming faculty, students and the university's academic mission.  None of the individuals who committed the bad acts are harmed by this.

+ postseason ban: punishes the innocent student-athletes who previously committed to PSU and now are deprived of the opportunity to participate in bowl games for events that occured years ago that they had no responsibility for.

+ Stripping past wins: a sanction that only Orwell could dream up of - and an attempt to erase the historical achievements of thousands of totally innocent student-athletes.  And to what end?  So that a now dead ex-coach can be moved down a few ranks in the official NCAA W-L records?

Doesn't the punishment require that the 60 million dollars come only from the football program and not from University general funds or other athletic programs?

As for post season ban and stripping past wins, those are common NCAA sanctions and they always harm players who had nothing to do with the crime.

[The Minsky Moment]

Doesn't the punishment require that the 60 million dollars come only from the football program and not from University general funds or other athletic programs?

I don't see any such limitation in the sanction order.  It is a straight $60 million fine.  And in any case, such a limitation would be pointless given the fungibility of money.

As for post season ban and stripping past wins, those are common NCAA sanctions and they always harm players who had nothing to do with the crime.

The fact that foolish things may have been commonly done in the past is not a persuasive argument for doing them again in the present.  I also think, that at least with respect to limitations on scholarships and recruiting, that there is some justifiable linkage in thoses cases where the "crime" consists of violations of recruiting rules.  At least there the collateral damage is a little more limited and there is some logical connection betweent the violation and the punishment.

[sbr]

+$60 million - this is basically confiscating endowment money given in good faith by innocent donors, which the likely effect of harming faculty, students and the university's academic mission.  None of the individuals who committed the bad acts are harmed by this.

+ postseason ban: punishes the innocent student-athletes who previously committed to PSU and now are deprived of the opportunity to participate in bowl games for events that occured years ago that they had no responsibility for.

+ Stripping past wins: a sanction that only Orwell could dream up of - and an attempt to erase the historical achievements of thousands of totally innocent student-athletes.  And to what end?  So that a now dead ex-coach can be moved down a few ranks in the official NCAA W-L records?

Doesn't the punishment require that the 60 million dollars come only from the football program and not from University general funds or other athletic programs?

No, it doesn't have to come from the football program.  I get a lot of info from the radio so no exact quotes or links, but they said the fine cannot come at the expense of other athletic programs and they hoped it wouldn't affect any academic programs.  I also heard from someone that the PSU athletic department had a huge surplus last year, like in the $30 million range.  I will see if I can find something on that.

Considering PSU's alumni base I would think coming up with $12 million a year for 5 years wouldn't be all that hard to find donations for.