Penn State Goings-On

[crazy canuck]

I am not familiar with other cases Valmy.  If this how things are regularly done then there is a fairly considerable systemic problem.

Wait you are claiming the process is unfair in this particular case when you have no knowledge of how the process normally works?  Surely that would be important if you are going to declare one instance unfair.

Why, procedural fairness is not an exercise of relative comparisons.  There are fundamental principles of procedural fairness which, if absent, render the process unfair.

[Berkut]

The NCAA is a completely voluntary association - PSU had as much (honestly likely much more say) in how it runs and its processes as any other institution that is a member.

The procedures they have defined have been defined by the very members that make up the NCAA. How can you just state they are unfair on the basis that they don't meet some legal standard? If legal standards were adequate to meet the needs of the member institutions of the NCAA, there would never be any reason to form the NCAA in the first place.

[Barrister]

Mob justice remains an oxymoron. A process in which the NCAA convenes an investigation, does not advise the defendant of the charges, fails to articulate its jurisdiction to address issues which never affected the eligibility of a player to be on the field, and then renders judgment without ever affording the defendant the opportunity to respond to anything, is, by definition, not due process.

When we deny the despicable due process we erode the guaranty that it will be there to protect the innocent. We step closer to mob rule. Group think exacerbated the problems at penn state. The mob remains, on the whole, intemperate, prone to error, and fickle.

We gave himmler and Speer the fundamental right to due process but we gleefully laugh at denying it to penn state. Perhaps this result was the right result but it was not just. Justice comes from a process that insures fundamental fairness --  justice is not and can never be a mere result.

I'm pretty sure PSU knew "what the charges" were.  It's jurisdiction has been spelled out.  The ability to "respond to charges" is a part of the court process, but is not necessarily a part of every disciplinary action.  If you're caught stealing from your employer you generally don't get a chance to plead your case before you're fired.

BB, a fundamental tenant of administrative law is procedural fairness.  I agree with our distinguished southern gent that it was denied in this case.

Your example of an employers contractual right to fire for cause is problematic in an number of ways.  First, it is not an administrative decision akin to the one made here.  Second, and taking us off topic, if an employer does fire for cause without the employee getting a chance to explain they are just asking for a world of hurt in the form of damages and likely punative damages.

Administrative Law is the law dealing with the operations of governments and governmental agencies.  The NCAA is neither.

PSU had been put on notice months ago that the NCAA wanted to know what ws happening - that's what led to PSU commissioning the FReeh Report.  The Freeh Report was commissioned by PSU, and PSU said they accepted all of its findings.

[alfred russel]

It is easy to ignore due process when one wishes to achieve a quick decision that would meet the approval of the vast majority.  Due process is hard.  It is also the most just process we have been able to devise.  If you want quick and expedient by all means ignore due process.  If you want good sound decision making you do so at your peril.

Based on what Valmy said, it seems this is not the first time.  I surmise from that fact that the NCAA proceeds in this way because it can.  That does not make it right. 

The other issue your question raises is an interesting one and that is to what extent should a domestic administrative process (ie one that does not derive its authority from statute) be required to comply with fundamental principles of procedural fairness.  Its a good question.  From a legal point of view a suppose the answer is there is no way to force them (going back to my observation that they ignore procedural fairness because they can) but if a domestic administrative body wishes to make good decisions then, again, they ignore procedural fairness at their peril and perhaps the members who make up the NCAA might be concerned about that.

I disagree. Due process rights are one thing when we are discussing deploying the power of the state against someone or something. That isn't at stake here. I read in one article that the NCAA was empowered by a group of presidents to act beyond its ordinary powers. That seems reasonable to me. If I'm a member of a neighborhood tennis club that does background checks etc. and strict character requirements for membership, I sure as hell don't want to go through the time and cost of a review if some notorious criminal applies. I also wouldn't want to go through a long drawn out process of expulsion if a member admitted to some heinous behavior--especially following rules that weren't written with such conduct in mind.

I say this with my first reaction as skeptical of the punishment. But it is one thing to require the government to have a list of laws and regulations covering almost every circumstance to ensure it isn't prejudiced against individuals. I'm sure the laws and regulations in the US run 100s of thousands of pages. But if we demand the same standards from private groups including umbrellas under which athletic competitions are held we will be paralyzed by red tape more than we  already are. Sometimes it is useful to be able to step back, cut back through all the rules, and make a decision.

[crazy canuck]

Mob justice remains an oxymoron. A process in which the NCAA convenes an investigation, does not advise the defendant of the charges, fails to articulate its jurisdiction to address issues which never affected the eligibility of a player to be on the field, and then renders judgment without ever affording the defendant the opportunity to respond to anything, is, by definition, not due process.

When we deny the despicable due process we erode the guaranty that it will be there to protect the innocent. We step closer to mob rule. Group think exacerbated the problems at penn state. The mob remains, on the whole, intemperate, prone to error, and fickle.

We gave himmler and Speer the fundamental right to due process but we gleefully laugh at denying it to penn state. Perhaps this result was the right result but it was not just. Justice comes from a process that insures fundamental fairness --  justice is not and can never be a mere result.

I'm pretty sure PSU knew "what the charges" were.  It's jurisdiction has been spelled out.  The ability to "respond to charges" is a part of the court process, but is not necessarily a part of every disciplinary action.  If you're caught stealing from your employer you generally don't get a chance to plead your case before you're fired.

BB, a fundamental tenant of administrative law is procedural fairness.  I agree with our distinguished southern gent that it was denied in this case.

Your example of an employers contractual right to fire for cause is problematic in an number of ways.  First, it is not an administrative decision akin to the one made here.  Second, and taking us off topic, if an employer does fire for cause without the employee getting a chance to explain they are just asking for a world of hurt in the form of damages and likely punative damages.

Administrative Law is the law dealing with the operations of governments and governmental agencies.  The NCAA is neither.

You are part right.  A large part of administrative law deals with the operation of bodies that exercise statutory authority of one type or another.  But see my answer to Alfred. Administrative law principles are not confined to those areas.

[crazy canuck]

It is easy to ignore due process when one wishes to achieve a quick decision that would meet the approval of the vast majority.  Due process is hard.  It is also the most just process we have been able to devise.  If you want quick and expedient by all means ignore due process.  If you want good sound decision making you do so at your peril.

Based on what Valmy said, it seems this is not the first time.  I surmise from that fact that the NCAA proceeds in this way because it can.  That does not make it right. 

The other issue your question raises is an interesting one and that is to what extent should a domestic administrative process (ie one that does not derive its authority from statute) be required to comply with fundamental principles of procedural fairness.  Its a good question.  From a legal point of view a suppose the answer is there is no way to force them (going back to my observation that they ignore procedural fairness because they can) but if a domestic administrative body wishes to make good decisions then, again, they ignore procedural fairness at their peril and perhaps the members who make up the NCAA might be concerned about that.

I disagree. Due process rights are one thing when we are discussing deploying the power of the state against someone or something. That isn't at stake here. I read in one article that the NCAA was empowered by a group of presidents to act beyond its ordinary powers. That seems reasonable to me. If I'm a member of a neighborhood tennis club that does background checks etc. and strict character requirements for membership, I sure as hell don't want to go through the time and cost of a review if some notorious criminal applies. I also wouldn't want to go through a long drawn out process of expulsion if a member admitted to some heinous behavior--especially following rules that weren't written with such conduct in mind.

I say this with my first reaction as skeptical of the punishment. But it is one thing to require the government to have a list of laws and regulations covering almost every circumstance to ensure it isn't prejudiced against individuals. I'm sure the laws and regulations in the US run 100s of thousands of pages. But if we demand the same standards from private groups including umbrellas under which athletic competitions are held we will be paralyzed by red tape more than we  already are. Sometimes it is useful to be able to step back, cut back through all the rules, and make a decision.

As I said, you are coming down squarely on the quick and expediant side of the arugment.  Just recognize that ignoring due process can render poor decisions.

[Admiral Yi]

What aspects of due process are missing?

[Barrister]

hmm... from an article on Slate:

It's also odd that the NCAA acted without the usual process of a hearing in front of its Committee on Infractions. Emmert decided that Louis Freeh's damning report about the university, which Penn State's own trustees ordered, would take the place of further examination. Why bypass the usual process— what's the rush?

http://www.slate.com/blogs/xx_factor/2012/07/23/the_ncaa_s_sanctimonious_sanctions_against_penn_state_football.html

If there is a "usual process" that the NCAA didn't follow then that's different.

[grumbler]

Also they are relaxing rules on players transferring within the conference.  I'm not exactly sure what this means though:

"Players who are eligible won't be restricted by another institution's scholarship limits if they choose to transfer, nor will they have to sit out a season as is customary for players transferring from one FBS program to another."

I assume it means schools can go over the 85 scholarship limit to take PSU kids, if that is the case it is brutal.

Yes, that's what that means.  I also saw somewhere that they have an unlimited number of campus visits, etc, as well.  The NCAA/Big 10 are simply making it much easier for them to get out of PSU and get to a place where they can actually play for something.

Actually, no, that's not what it means, at least on the face of it.  Normally, a player may not transfer from one Big Ten school to another, except as part of the NCAA's graduate student exception.  Waivers can be granted, and frequently are, but in this case the Big Ten is saying waivers are not necessary.

The 85-scholarship-student limit is an NCAA rule, and the B10 cannot waive it.  What they can waive is their own barriers to transfers.

Not many schools have scholarships available right now, so I would expect most PSU football players that want to leave will transfer effective next year, not this year.

[grumbler]

The NCAA is a completely voluntary association - PSU had as much (honestly likely much more say) in how it runs and its processes as any other institution that is a member.

The procedures they have defined have been defined by the very members that make up the NCAA. How can you just state they are unfair on the basis that they don't meet some legal standard? If legal standards were adequate to meet the needs of the member institutions of the NCAA, there would never be any reason to form the NCAA in the first place.

The model here is that of a national fraternity sanctioning one of its member fraternities.  The NCAA is a completely voluntary association.  Penn State can refuse to accept NCAA sanctions, and the only consequence is that they cannot play sports against another NCAA institution.

This isn't, as you note, a court case.

[grumbler]

Actually, no, that's not what it means, at least on the face of it.  Normally, a player may not transfer from one Big Ten school to another, except as part of the NCAA's graduate student exception.  Waivers can be granted, and frequently are, but in this case the Big Ten is saying waivers are not necessary.

The 85-scholarship-student limit is an NCAA rule, and the B10 cannot waive it.  What they can waive is their own barriers to transfers.

Not many schools have scholarships available right now, so I would expect most PSU football players that want to leave will transfer effective next year, not this year.

Update:  The NCAA is considering lifting the scholarship limit for this year:

        Football student-athletes who transfer will not have to sit out a year of competition. Any incoming or currently enrolled football student-athlete will be immediately eligible upon transfer or initial enrollment at an NCAA institution, provided they are admitted and otherwise eligible per NCAA regulations.
        Penn State will release any incoming student-athletes from the National Letter of Intent.
        Permission-to-contact rules will be suspended. Penn State cannot restrict in any way a student-athlete from pursuing a possible transfer. Student-athletes must simply inform Penn State of their interest in discussing transfer options with other schools. Interested schools also must inform Penn State of their intention to open discussions with the student-athlete.
        Official and unofficial visit rules will be loosened. Any incoming or currently enrolled football student-athletes interested in taking an official or unofficial visit will be permitted to do so during the 2012-13 academic year, no matter how many visits they took during their recruitment. Institutions seeking to provide an official visit to a student who already visited the school as many times as NCAA legislation allows can seek relief from the NCAA on a case-by-case basis.

        Additionally, the NCAA is considering waiving scholarship limits for programs to which these football student-athletes transfer, provided they reduce proportionately in the next year. For example, the limit is 25 new scholarships per year to a total of 85 scholarships. If the limits are waived in 2012-13 to accommodate one Penn State student-athlete who wishes to transfer to a particular school already at the limits, in 2013-14 the school will be limited to 24 new scholarships and 84 total scholarships.

[crazy canuck]

Its funny how the Libertards among us think that fairness need only exist in court cases...

[MadBurgerMaker]

Actually, no, that's not what it means, at least on the face of it.  Normally, a player may not transfer from one Big Ten school to another, except as part of the NCAA's graduate student exception.  Waivers can be granted, and frequently are, but in this case the Big Ten is saying waivers are not necessary.

The 85-scholarship-student limit is an NCAA rule, and the B10 cannot waive it.  What they can waive is their own barriers to transfers.

Not many schools have scholarships available right now, so I would expect most PSU football players that want to leave will transfer effective next year, not this year.

No, that really is what "Players who are eligible won't be restricted by another institution's scholarship limits if they choose to transfer" means, because that's what it says.  Players who choose to transfer won't count against the scholarship limit of the school they are transferring to this year. 

E:  Didn't see that post there.  I'm glad we agree. 

[Valmy]

Its funny how the Libertards among us think that fairness need only exist in court cases...

Meh I was hoping somebody would explain what about this is unfair or specifically what was so mob justice-esque of it.  I was wondering if plj felt that same way about the NCAA in general or if there was something particulary unfair about this specific penalty.  I mean the NCAA did ask Penn State for an investigation, which it did, the NCAA got the results and determined the penalty like they always do.  I was hoping he would elaborate but maybe he will stop by later and explain it.

Somebody tips off the NCAA there is a violation, an investigation is carried out, after the results are taken in a penalty is determined.  And this process if grossly unfair?  I suppose it might be.  But they have no cops or anything they are completely reactionary.  As it is they have a very hard time catching violators, so the very few times people are caught the penalties have to be harsh I suppose.

But I guess I should just accept your pronouncement of unfairness even though you do not know anything about this organization and how it has historically run.

[Rasputin]

The NCAA based its punishments on the Freeh report.  That report was done by PSU and PSU accepted all of its findings.  Would PSU then come back and say that those things are now not true?

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.