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DID the NCAA EXCEED its AUTHORITY to PUNISH PENN STATE? IT WAS CERTAINLY UNJUST!!

I am no friend of the NCAA nor a fan of Penn State but I must ponder again the two issues raised in the Penn State case.

First, the actions of the officials as reported in the media (that PSU officials including the late and former Coach Joe Paterno) are as reprehensible as any reported in college sports.  BUT,…

This punishment has to be done in a just manner.  Taking away the right to play in a bowl game hurts the present football athletes that wanted to play for Penn State and were recruited to do so.  Here is a Sports Illustrated story on the concerns of a star athlete and his family.  It’s no easy thing to switch schools in mid-stream.  Credits might not transfer fully.  Might thus need five years to graduate.  What about the strength and reputation of the new school.

I think the $60 million dollar fine might be a better punishment.  PSU will be crippled for years to come as to football.  Other sports will be affected, too.

What about the players who now played for a school with NO wins?  111 victories negated from 1998 through 2011?  How does that compensate for what occurred here?  Again, innocents are hurt.

But I must ask the question:  How did the actions of Penn State affect competition?  A recruiting violation has the potential to affect the competition.  but this does not.  It’s just piling on.  I question if PSU could rather sue and win.  Here’s a lawyers blog (I cannot speak to the reputation of this lawyer or his blog) that explains this better than I could.

Seems there are three questions:  Did Penn State commit a violation of NCAA rules?  If so, are there any procedural violations committed by the NCAA?  Did the NCAA have the power to act in the way it did?  This SI article by Stewart Mandel suggests no:

And so, Emmert made sure his organization responded accordingly — even if that meant revoking the traditional due process afforded every other school that’s ever been punished by the NCAA; invoking a nebulous, generalized bylaw about promoting integrity that could easily apply to hundreds of lawbreaking players, coaches and staffers across the country every year; and creating a precedent for dictatorial-like intervention that must now be considered every time a scandal of any proportion arises in college athletics.

“While there’s been much speculation about whether this fits this specific bylaw or that specific bylaw,” said Emmert, “it certainly hits the fundamental values of what athletics are supposed to be doing in the context of higher education.”

A court could look to prior uses by the NCAA of this bylaw to see if this is an unreasonable interpretation.

Remember when most college football fans assumed Auburn and/or Cam Newton would endure some sort of penalty when the quarterback’s father openly solicited six figures from Mississippi State? The NCAA couldn’t do anything, Emmert insisted, because there was no rule on the books addressing that specific scenario. We’d best not hear that excuse again.

Remember the 2003 murder of Baylor basketball player Patrick Dennehy by a former player, and head coach Dave Bliss’ subsequent attempt to falsely portray Dennehy as a drug dealer to cover up for illegal tuition payments he’d made? Would Emmert (who was not yet with the NCAA at the time) step in if that indisputably heinous case arose today? If not, why? What’s the threshold in determining whether something is special-jurisdiction-caliber repulsive or leave-it-to-the-enforcement-department-level disturbing?

And have you read about the ongoing academic fraud scandal at North Carolina? Since at least 1999, athletes have repeatedly been steered toward a specific professor’s African and Afro-American Studies course that no one actually taught or attended. Last year’s NCAA investigation only scratched the surface. Considering how highly the NCAA portends to value academics, shouldn’t Emmert step in here, too?

They may also be able to look to whatever state’s (Kansas?) law governs the NCAA documents.
But I do not trust nor support the NCAA.  I believe they intervened in areas outside their jurisdiction in the Indian logos and mascots case as well as the Confederate flag cases. The NCAA was a bully here – forcing the state of South Carolina to remove their Confederate flag from the capitol:

No recommendations are expected next week. “It would be a ways off, probably, for anything to happen,” committee chairman Robert Vowels says. His panel is awaiting the outcome of local efforts to remove the Confederate flag from state grounds in South Carolina, one of two states affected by the guidelines.

“We’re looking at the entire picture,” Vowels says. “But our dialogue recently has been mainly with South Carolina.”

The state pulled the flag from its Capitol dome in Columbia in 2000 but still flies it as part of a monument on Statehouse grounds. Mississippi incorporates the Confederate symbol in its state flag.

The NCAA refuses to conduct preassigned championship events — those assigned a site ahead of time, as basketball’s Final Four is each year — in either state.

What about the University of North Dakota case?

The NCAA has dropped the hammer in recent years on the University of North Dakota’s storied nickname, the Fighting Sioux, mandating that the school’s athletic teams no longer use the name or mascot when competing in NCAA-sanctioned events.

And like their European Union counterparts in tyranny, the NCAA will not accept a law (passed by the duly elected citizens of the state of North Dakota) but insists on the right result, which alas they got June 12!  (Although there may be a constitutional amendment on the ballot in November!)  I think this kind of thing is a gross abuse of power:

The law forcing the school to use the name and logo was approved in March 2011 but was repealed in a special session after NCAA representatives told state officials that it would not budge on sanctions. Johnson’s group then collected the necessary signatures for the ballot measure.

I also believe that money and power play a crucial role in NCAA decision-making.  There must be a better way.  Penn State needs to do what Florida State did when the NCAA tried to take their Seminoles logo away:  Fight back.  When you stand up to the bully, usually the bully backs down.   Court action might be in order.  The Nittany Lions owe it to their fans and players, former and present, to at least look into it

About Elwood Sanders

Elwood “Sandy” Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia’s first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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