The bent to consent
“The Board finds the punitive sanctions difficult and the process with the NCAA unfortunate. But as we understand it, the alternatives were worse.”
— Statement by Penn State University Board of Trustees
“The resolve demonstrated by Penn State to get past this was very import in people’s minds.”
— Mark Emmert, NCAA President
Polygraph examinations, warrantless searches and the NCAA’s penalties against the Penn State football program all have something in common. They’re all drastically changed when the party to be penalized has given its consent.
Polygraph examinations of criminal defendants are not usually admissible in court. They come into court proceedings only where the state and the defendant have agreed beforehand that they will be admissible. No consent, no admissibility. Similarly, any claim by a defendant that their rights were violated and evidence gathered in a search should be suppressed is foreclosed if that person freely gave consent to law enforcement to conduct the search in the first place. Give that consent and you give up standing to fight about the results of the search.
It has been humorous all week, therefore, to read the self-righteous, quasi-legal musings of sports reporters who have railed against the exercise of authority by NCAA President Mark Emmert in leveling unprecedented sanctions against the Penn State football program and the University in general. These writers know far more about the West Coast Offense than I do, but they clearly aren’t well versed in the law.
Their first complaint was that the NCAA didn’t follow normal procedures. As Buckeye fans have come to know too well, the NCAA delivers an allegation to the school, conducts an investigation, awaits a formal response, conducts a hearing and then makes a determination about what violations of NCAA rules may have occurred. Indeed, none of those steps were followed in this case. Penn State might well have had a legitimate legal claim here, except that Penn State President Rodney Erickson signed off on the penalties, agreeing to accept them without the NCAA following those procedures. Cross that complaint off the list.
The second complaint was that the NCAA simply does not have the authority to punish a program for the criminal violations that led to Jerry Sandusky’s convictions. I have to assume that the sportswriters raising this complaint (most of whom railed against the NCAA’s abuse of power or complained that it was simply making a public spectacle of Penn State) only read the Cliff’s Notes version of the Freeh report. If they had read the entire thing, they would have seen that the report detailed that not only did athletic director Tim Curley and coach Joe Paterno direct that authorities not be contacted about reports of Sandusky’s abuse, but that Paterno also insisted that his football players be immune from the disciplinary procedures applied to other students at the university.
So egregious was this determination by Paterno to whitewash the program that Dr. Vicky Triponey, then vice-president for student affairs, was eventually forced to resign over her attempts to have members of the football team governed by the same rules as the rest of the members of the student body. Had Penn State not consented to the penalties handed down, the NCAA would have claimed that this pattern demonstrated a lack of institutional control sufficient to impose the same penalties. Indeed, one of the hallmarks of a lack of institutional control under NCAA bylaws is “a head coach fails to create and maintain an atmosphere for compliance within the program the coach supervises, or fails to monitor the activities of assistant coaches regarding compliance.”
The third complaint raised by the majority of sports editors and commentators was that the penalties were too harsh and harmed the current players at Penn State who were not complicit in any of the wrongdoing. On its face, there is of course some merit to this claim, but the NCAA went far further than it ever had before to mitigate the damage. Players can immediately transfer without penalty. Schools accepting them can add scholarships. Players can remain at PSU, keep their scholarship money and not play football. And those players can wait to decide until just before the 2013 season.
At its most basic level, however, the complaint is akin to saying that a convicted murderer shouldn’t be sent to prison because it would hurt his momma’s feelings and she didn’t do anything wrong. That’s certainly true, but it doesn’t mean that you don’t punish the guilty. And if the real issue that allowed Sandusky to prey for decades without interference was the insular football culture at Penn State, then the crippling penalties imposed by the NCAA are the only thing reasonably calculated to break that culture.
Penn State’s problems will run far, far deeper than football. The NCAA fined the university $60 million and the Big Ten will withhold $13 million in bowl game payouts. Over the coming years, lawsuits from Sandusky’s victims will likely cost the university millions and millions more — and they may not even have liability insurance to cover it. On Wednesday of this week their liability insurer filed suit asking a court to absolve it of any responsibility to cover PSU since the college knew the acts were occurring and did nothing to stop them.
David Hejmanowski is a magistrate and court administrator at the Delaware County Juvenile Court and a former assistant prosecuting attorney.