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.

Posted by Dave Hejmanowski on Jul 26 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.