AUPPL Note: First, apologies for 3 months in between posts. Sometimes (as it normally does), the real world just kicks your butt sometimes. Second, I originally thought about posting this over at my new home for most of my content, CollegeAndMagnolia.com but since it was not really Auburn related and is completely my opinion then I felt it best tucked away over here on my little solo corner of the internet. Finally, this is neither Auburn football or baseball related so if you were coming for either of those things, I'll try to have more content of that regard soon. If you'd like to hear one fan's opinion on the Penn State situation? Then by all means proceed.
The punishment of criminals should serve a purpose. When a man is hanged he is useless . -Voltaire
Twitter was abuzz yesterday and today about Penn State, the NCAA, and sanctions and fines as a result of the school’s role in the Sandusky sex scandal. Is it necessary or even applicable to punish the school now? Who exactly is being punished?
It’s hard for me to grasp.
As the Penn State scandal unfold and watched people ask aloud, “When does the NCAA get involved?”’; most sports writers were in agreement that this was NOT an NCAA issue. Then the Freeh Report was published and the mood began to shift. An image was tarnished (justly or unjustly so is not for me to decide, nor is it my place), a school has been irreparably changed forever, and the common drum beat has changed to a steady march to the gallows for a University athletic program.
Let’s clear some up some key points. Points I will not disagree with: Child rape is wrong. Jerry Sandusky is by all counts a monster and predator. Joe Paterno and others in the PSU administration took a course of action that was both felonious and morally reprehensible. These are all points that have been established, are concrete, and I am in complete agreement with.
What I can’t agree with is the NCAA’s involvement.
Is this even an NCAA issue? Not at all. This is a criminal issue. It was tried in a criminal court; it was handled by our legal system; and for all intents and purposes, it is over. Any type of retribution or penalties or judgments will be awarded by courts and not by a toothless governing body headquartered in Indianapolis, Indiana.
The only reason this even involves the NCAA or that people are asking for justice by Mark Emmert and crew is because it involves sports. That’s it.
Or is it?
This doesn’t really involve sports. This is not a sports issue. It does not affect eligibility. It does not affect the well being of athletes. This involves children and terrible crimes against them. The counterargument is valid: That Jerry Sandusky’s future actions could have been prevented but were not because of, “a series of failures all the way up the university’s chain of command that it concluded were the result of an insular and complacent culture in which football was revered.”
To me, it still holds true to an extent. While I don’t believe that barring Sandusky from the use of Penn State facilities would have prevented future rapes (a rapist will just find another place); I also don’t think that he should have had continued access to facilities. Nor should he have gone unreported for so long.
However, this still is not an NCAA issue. The NCAA’s core purpose (as outlined by themselves) is:
to govern competition in a fair, safe, equitable and sportsmanlike manner, and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.
The NCAA governs competition. Sports. Games. It does not govern the schools day to day actions unless those actions directly or indirectly create an unfair and competitive playing field. There are other organizations that can handle applicable punishments. If the Freeh’s report was that the culture of Penn State was too entrenched or tightly wrapped around athletics then they should have lost their accreditation as an institution. Similarly to how Auburn University is accredited by SACS, Penn State is accredited by the Middle States Commission on Higher Education. Another avenue of punishment is through the American Association of Universities.
However, to punish the University through either of these avenues reaffirms one of my core issues with the NCAA’s involvement. It punishes people who had no say, no action, no participation in the crimes involved.
A buzzword bandied about is “The Lack of Institutional Control”. Explain to me how that applies to Penn State in this case. Before you do, read over the NCAA’s own definition of LoIC:
In determining whether there has been a lack of institutional control when a violation of NCAA rules has been found it is necessary to ascertain what formal institutional policies and procedures were in place at the time the violation of NCAA rules occurred and whether those policies and procedures, if adequate, were being monitored and enforced. It is important that policies and procedures be established so as to deter violations and not merely to discover their existence after they have taken place. In a case where proper procedures exist and are appropriately enforced, especially when they result in the prompt detection, investigation and reporting of the violations in question, there may be no lack of institutional control although the individual or individuals directly involved may be held responsible.
I’ve yet to see where Sandusky’s crimes and the inaction by administration violated any type in NCAA by-laws. Not to make light or be glib in the matter, but child rape does not exactly foster a competitive advantage for a school.
Again, the action of Sandusky and Paterno are not NCAA violations. Yes, one could argue (and I’ve heard this before) that if they covered this up, imagine what else they’ve covered up. That may be true. It may be that PSU was able to hide NCAA violations in the past. Before this event, PSU was looked at as one of the cleanest programs in the Association.
Even when Auburn was hit with the dreaded LoIC, it came as a result of Pat Dye having too much power as both Head Football Coach and Athletic Director. It also came after the NCAA found that Auburn had broken NCAA rules. Auburn was creating a competitive disadvantage. We were punished accordingly.
The NCAA will (and has argued) that Penn State appears in violation of By-Law 19.01.2 or the “Exemplary Conduct” By-Law, which states:
“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.”
The NCAA has stated that it used this violation in the past. That is true. In fact, it’s normally tacked on to any NCAA punishment as an additional violation. What I’ve never seen or heard of is violation of the By-Law being used as the strict basis of punishment.
In their letter to PSU, the NCAA also detailed that the school could have possibly violated by-laws: 10.01.1, 11.1.1, and 22.214.171.124. By-law 10.01 goes into what the NCAA deems “unethical conduct”. However, each of these 10 issues listed as unethical by the NCAA (and their catch-all wording that these are not the end-all-be-all of unethical conduct, just a starting point) all have to deal with the eligibility of athletes. By-laws 11.1.1 and 126.96.36.199 make the same points but apply them to Coaches and other administrative personnel.
Again, all of these involve the eligibility of student athletes. The Penn State situation has not (to my knowledge) revealed anything that jeopardizes the eligibility of student athletes.
To me, it seems like the NCAA heard everyone asking “Hey, what are you guys going to about Penn State”, looked around confused, re-read their own by-laws and said…”Hey, wait, maybe we can stick them on 19.01.2”
I’m not saying that was happened at Penn State is not terrible and morally bankrupt. I’m simply arguing that it did not violate the core concept of the NCAA Rules. It did not create a competitive advantage and did not affect the eligibility of athletes. Again, that’s what the NCAA should police: College Sports. What it should not and cannot police are criminal activities. We already have systems in place to deliver punishments in those areas.
When the NCAA has gotten involved it has involved the eligibility of athletes. Even when other criminal issues such as assault, point-shaving, gambling, and even murder have been involved, the NCAA was able to act because there were violations of eligibility.
Why should the NCAA not get involved or twist its own guidelines to enact punishment? Simply put, because doing so opens up Pandora’s Box and allows the NCAA to overstep their boundaries.
Even the NCAA knows that this is something completely out of their wheelhouse:
"Suffice to say that if there is information that points to an impropriety as it relates to the administration of the athletics program, that's valid [for the NCAA to investigate Penn State]," said association spokesman Bob Williams.
"What people are kind of missing here, this is extraordinary in a bad way," an NCAA source said. "The Division I rulebook could never anticipate this ... Our rulebook is very specific in the way institiuions administer athletic programs … This is something different."
The Association has admitted (and I agree) that this is unprecedented. Obviously, they could never have foreseen this being an issue. However, that doesn’t mean they need to now make an NCAA issue because of the public wanting action.
Two former chairmen of the NCAA infractions committee as well as former NCAA investigators said last week that the Penn State case, while egregious in nature and scope, might not qualify as an enforcement issue and that the NCAA's involvement in such a case would be rare, if not unprecedented.
"You might argue that by what Sandusky did do and by what Penn State did not do, that it is a violation of ethical conduct, but I don't think I have ever seen it used in that fashion," former infractions committee chairman David Swank said. "My opinion would be that it is not (an enforcement issue). There are other venues to take care of the problems that occurred at Penn State, and one of those is not the NCAA."
The NCAA being able to dictate and liberally apply nebulously worded by-laws is, to me, the most dangerous precedent to set. You have rules. You have established these rules. These rules govern a certain aspect of life and culture (in this case the eligibility of student-athletes) and no more. I do not ask the City of Auburn’s Housing Authority to tell me what temperature I should store ground beef in a supermarket. No, there are different agencies to handle and determine rules and regulations.
The NCAA creating their own rules, on the fly, at the behest of the masses would allow them to essentially rule ANYTHING as a violation, even if it didn’t violate specific NCAA rules. For example, say coach was a smoker. Smoking is not illegal. However, one could argue that Coach X, by constantly smoking in his office or by letting his players see him smoke would not set a good example for his players. The NCAA could now simply say, “Well coach, we think that’s wrong that you smoke around players. We now issue a 2 scholarship reduction”. Yes, that example is overkill, but it still gives an example of what the newfound power of the NCAA.
Not every criminal matter is an NCAA issue. If a coach commits adultery (which in some states is a criminal matter) does that really affect the eligibility of his players? No. Is it an NCAA issue? No.
Chuck Smrt, who was on the NCAA enforcement staff for more than 17 years, said that the NCAA involvement in the case could open a Pandora's Box for the organization in the future regarding criminal activities on campuses across the nation.
"Then the next time an athletic staff member at another school is involved in criminal activity, are you going to look at whether other staff members were aware and followed up on that?" Smrt said. "When a coach is involved in criminal activity, does every school then need to review who knew what along the way and assess whether there has been unethical conduct? Or does it relate only to the significance of the criminal activity? And then, well, where do you draw that line?"
The biggest issue with the NCAA getting involved is just who, exactly, are they punishing?
All in all, punishment hardens and renders people more insensible; it concentrates; it increases the feeling of estrangement; it strengthens the power of resistance. -Nietzche
If the NCAA wants to make this a football issue by issuing scholarship reductions and bowl bans then you are punishing players who, again, had no part in the initial crime. The punishment will come after the actions of administrators but you are punishing players. Players who did not commit to play for Jerry Sandusky and future players who did not commit to play for Joe Paterno. I’ve heard it mentioned that when SMU was hit with the Death Penalty that it punished players who had no role in that scandal. That doesn’t make it any better. It also doesn’t change my feeling that the Death Penalty is absolute overkill by the NCAA and ultimately punishes those not responsible. It punishes those who stayed. Personally, the Death Penalty is using a hand grenade on a house fly.
Penn State seems safe from the Death Penalty. At least, according to most sources. However, they do seem to face staggering fines and penalties of a monetary sort (such as bowl bans). Who does that really hurt? Does that even make a difference?
One source put the fine in the $60 Million range. That’s all well and good but last year’s Athletic Revenue for PSU was around $116 Million. Some of that $60 Million could undoubtedly be made up through private donations. I’m sure there are more than a few Penn State fans ready to open up their checkbooks to help restore the Blue and White to their once proud status. They will donate to show they still stand by their school.
What that fine WILL affect is PSU’s other sports. Basketball, Baseball, Tennis, etc. Most of the Olympic sports will probably have to deal with fewer resources, less accommodations, fewer renovations. For a school that is supposedly being penalized for having a football-first culture, any monetary penalty will damage the football program the least. Football will still be king and it will still be the quickest to recover.
No, the same athletes the NCAA is trying to protect will now be punished for doing nothing else than attending a school. Yes, there are always collateral damages in NCAA penalties. People who took no part in violations will be punished (unfairly). That doesn’t make it any better. In fact, that continued allowance of others to be punished for the crimes of few makes it even worse. It develops a sense of disenfranchisement. It reaffirms that position of second class citizen. Yes, you’re an NCAA athlete but you don’t play football. You will still get punished like you were.
Criminals do not die by the hands of the law. They die by the hands of other men. –George Bernard Shaw, Man and Superman
For all intents and purposes, Penn State is dead. They will never be the same. The public sentiment, the fall of an idol, the constant judgment and more. Sure, they will return to some sense of normalcy after a few years, but whenever someone hears “Penn State” no matter the context, it will be overshadowed by taunts of “child-rapists” and “cover-ups”. Is that fair? That’s not for me to say. Have the people involved been punished enough? Probably not. Should the people not involved be punished by an organization that has no authority over this case? Absolutely not.