Penn State Goings-On

[Valmy]

If the University and community are actually dependent on the football program then we probably should shut it down or it should be made a pro team.  That is simply too dangerous to be allowed to continue.

But I seriously doubt the University is that dependent on it.  Very few Athletic departments give a dime to the Academic side...and usually it is exactly the opposite.  In 99.999% of cases the only part of the University that is dependent on Football are the other teams.

[crazy canuck]

It wasn't really in the preamble, it was in the first question he asked.  The fact that Dr Ray didn't correct him tells me that it was a true statement.  I assume as a lawyer your mind doesn't work that way though.

Sounds like exactly the same logic used by the NCAA in breach of procedural fairness.  Didnt know one had to be a lawyer to spot this kind of lazy thinking. 

[Valmy]

Sounds like exactly the same logic used by the NCAA in breach of procedural fairness.  Didnt know one had to be a lawyer to spot this kind of lazy thinking. 

The penalty does not even seem that unfair but inline with precedent.  Which makes the procedural stuff odd.  It will be interesting to know the whys and hows because it seems so unnecessary.  It does seem like they are using the opportunity to create a dangerous precedent.  Very Federal Justice Department of it.

[sbr]

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.

[katmai]

From reports i've seen, they agreed to these sanctions with the understanding if they didn't they were facing multiple year death penalty, this was a plea bargain as it were.

[Valmy]

Ok so they could appeal?

plj was wrong?  Or...right but wrong in a different way?  Or right completely and he was talking about something else?

[sbr]

Ok so they could appeal?

plj was wrong?  Or...right but wrong in a different way?  Or right completely and he was talking about something else?

Once they signed the Decree of Consent, or whatever the proper term is, they could no longer appeal.  But if they fought it from the start I don't see why not.

[katmai]

Once they signed the Decree of Consent, or whatever the proper term is, they could no longer appeal.  But if they fought it from the start I don't see why not.

[grumbler]

It wasn't really in the preamble, it was in the first question he asked.  The fact that Dr Ray didn't correct him tells me that it was a true statement.  I assume as a lawyer your mind doesn't work that way though.

Sounds like exactly the same logic used by the NCAA in breach of procedural fairness.  Didnt know one had to be a lawyer to spot this kind of lazy thinking. 

It strikes me that the lazy thinking comes from looking at one or two reports, not seeing what you accept as "procedural fairness," and assuming that, because you didn't see it, it wasn't there.  One doesn't have to be a lawyer to see how silly that is. 

[CountDeMoney]

But I seriously doubt the University is that dependent on it.  Very few Athletic departments give a dime to the Academic side...and usually it is exactly the opposite.  In 99.999% of cases the only part of the University that is dependent on Football are the other teams.

Exactly.  Athletic departments don't share that money for shit.

[grumbler]

From reports i've seen, they agreed to these sanctions with the understanding if they didn't they were facing multiple year death penalty, this was a plea bargain as it were.

Pretty much every NCAA sanction is like that.  The extent of the sanction is negotiated.  That's why every school ends up accepting the NCAA sanctions; because that's what the negotiations are about.  Some schools are happier about the outcome than others (USC accepted the sanctions but the AD blamed their severity on the fact that the NCAA was just jealous of USC), but they all know they got the best deal they could under the circumstances.

[sbr]

From reports i've seen, they agreed to these sanctions with the understanding if they didn't they were facing multiple year death penalty, this was a plea bargain as it were.

Pretty much every NCAA sanction is like that.  The extent of the sanction is negotiated.  That's why every school ends up accepting the NCAA sanctions; because that's what the negotiations are about.  Some schools are happier about the outcome than others (USC accepted the sanctions but the AD blamed their severity on the fact that the NCAA was just jealous of USC), but they all know they got the best deal they could under the circumstances.

From the same print interview with Dr Ray.  Posted in its entirety with time and with relevant sections bolded.

http://www.oregonlive.com/beavers/index.ssf/2012/07/oregon_state_beavers_a_qa_with.html

A Q & A with Dr. Ed Ray, Oregon State president and chairman of the NCAA's executive committee, after the NCAA imposed sanctions on Penn State on Monday:

Q: How are you holding up?

A: Fine – I'm back in Oregon!

Q: Can you describe your role in the process that led to today's announcement?

A: I chair the executive committee of the NCAA. In a way, the executive committee is like the board of directors of a corporation or a board of trustees of a foundation or a university. It includes members from all three divisions – Divisions I, II and III. They are all presidents or chancellors, and I've chaired that since October of 2009. I took over that position after Myles Brand passed away in September of 2009. So I began a search to find a new president for the NCAA, and that's when we recruited Mark Emmert. So I've been doing this for the past 2 ½ years.

Q: How have the past few days and weeks been for you, knowing the enormity of the Sandusky scandal and its consequences?

A: This has been a rolling process of discovery of just how tragic the circumstances were at Penn State University. It began back in November 2011, and we learned more over time, through the Sandusky investigation and trial. I think it culminated with the Freeh Report that was commissioned and accepted without exception by the university. It was the release of that report and the acceptance of the findings by the university itself and the concurrence with the NCAA that led us to move forward with deliberations over whether or not it would be appropriate to create a set of punitive and corrective actions by the NCAA to be imposed on Penn State University – hopefully in a consent decree, where the university accepts proposed actions we put forward, and that's what happened.

Q: Is it true that had Penn State not consented, there was a possibility that the so-called death penalty would be enacted?

A: Well, let me tell you what I can tell you. We actually had our own internal discussion and a discussion with President Emmert. We told him to go out and put together a package of actions, both punitive and corrective, and come back to us. We want to discuss them, and we want to declare what we think are appropriate actions. As part of that, we talked about whether suspension of play ought to be one of the actions that we would call for. People honestly disagree. ... I mean, this is horrific, it's pretty hard not to want to make harsh judgments. ... But the overwhelming vote – we took a vote – in both the executive committee and the Division I board was not to include a suspension of play or death penalty, and then we quickly moved to the menu of actions that you heard about today, and we voted unanimously to support that package. At no time did we ever have a discussion about, "If they don't do this, we're going to do that.'' That is a conversation that never occurred.

Q: Is this an anomaly, or can we expect a variety of transgressions to be met with harsher penalties than the NCAA has doled out in the past?

A: I wouldn't want to read too much into what are the takeaways from today. The main takeaway that I hope people pay attention to is that this is a specific set of actions, punitive and corrective, for Penn State University based on the facts as we understand them in this very horrific episode. It is a teachable moment, and people can try to learn lessons. I think their takeaway is what I said in the press conference: Every president and chancellor at major universities with Division I athletics programs ought to do a gut check and ask themselves: Do we have appropriate balance between our athletics culture and the broader culture and values of the university, and if we think we do, how do we know that's so? And if we don't, what do we need to do to get back in balance? This is a cautionary tale of what can happen when a football culture overwhelms a university. We had a chancellors' retreat last August, and a chancellor said, "Enough. People are making risk/reward calculations and violating rules where they don't think the penalties are as likely to come or would be so severe that they shouldn't risk it.'' Quite separately from the Penn State case, I chair a work group that's been looking at the enforcement process, policies, procedures, how things get adjudicated, what the violations structure should be. We've created penalty guidelines. If all goes according to form, all that will be put into place effective August of 2013. That's separate from the specific actions we've taken in the Penn State case.

Q: What can you tell me about the new enforcement penalty structure?

A: We now have a committee on infractions that has, I think, nine members on it. We proposed that be increased to as many as 24 and that there be several panels of five to seven members who can be hearing cases simultaneously, as a way of trying to speed up the enforcement process. Instead of the current major, secondary violations structure, we're proposing a Level One through Four structure that would correspond to severe breach of appropriate conduct, significant breach of appropriate conduct, breach of appropriate conduct and incidental infraction. We also have a rules group that is looking at all the rules of the NCAA, looking to streamline. I expect a lot of things that now fall into the incidental infractions area may in fact disappear – they are more a nuisance and need to be dealt with at the conference level. We've also proposed penalty guidelines. What we are proposing are more severe penalties than those that have been given out historically.

Q: As far as changing the culture to make sure athletics aren't too out of whack with the rest of the university, how realistic is that? I mean, down the road, they're building a $68 million football office. How realistic is it when there are so many dollars involved?

A: That's the question every president or chancellor needs to be asking him or herself. Do we have the balance right? What do we need to change? Leaders are supposed to lead, and if they're not in the right place ... there are programs that are successful and wonderful and are not involved in lots of violations across the country, so I wouldn't want to paint everyone with a negative brush. It can be done, and what we've tried to do in the case of Penn State is propose corrective actions in terms of compliance, it terms of the athletics integrity agreement that hopefully will help them find them find that path.

Q: Will other schools enter into this athletics integrity agreement? Is that something, say, Oregon State could do?

A: We've called for it in this particular case because (PSU) clearly got lost somewhere. I think most universities do operate with great integrity, do have wonderful community and institutional values that they adhere to. So these are corrective actions for a university that lost on its values and its culture, and we've proposed very specific corrective actions for Penn State.

Q: OK, thanks again. So did the Beavers' 2008 record (with a 45-14 loss at Penn State) just get better?

A: No. When wins get vacated, the losers don't get the wins. The penalized team just loses the victories – nothing else changes.

- John Hunt

[grumbler]

But I seriously doubt the University is that dependent on it.  Very few Athletic departments give a dime to the Academic side...and usually it is exactly the opposite.  In 99.999% of cases the only part of the University that is dependent on Football are the other teams.

Exactly.  Athletic departments don't share that money for shit.

Few do, but then few ADs make money.  Michigan's AD sends about $20 million to the university every year.  Three quarters of that is for sports scholarships, the rest goes into the general scholarship fund.

[crazy canuck]

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.

[Admiral Yi]

In 99.999% of cases the only part of the University that is dependent on Football are the other teams.

The lame-ass girls' sports.