The Penn State aftermath

Those of us who were appalled by the Jerry Sandusky affair tend to feel that no punishment, from whatever quarter, is sufficient to make amends. But Dave Zirin argues that while what Penn State allowed to happen with Sandusky was terrible, the NCAA should not be the body that exacts monetary punishments for things that lie outside its jurisdiction, and that this represents a dangerous over-reach by a purely private and unaccountable and process-free body into the financial affairs of a public university.

Today marked a stomach-turning, precedent-setting, and lawless turning point in the history of the NCAA. The punishment levied by [NCAA president Mark] Emmert was nothing less than an extra-legal, extra-judicial imposition into the affairs of a publicly funded campus. If allowed to stand, the repercussions will be felt far beyond Happy Valley.

Take a step back from the hysteria and just think about what took place: Penn State committed no violations of any NCAA bylaws. There were no improper payments of “student athletes,” no cheating on tests, no improper phone calls, no using cream cheese instead of butter on a recruit’s bagel, or any of the Byzantine minutiae that fills the timesheets that justify Mark Emmert’s $1.6m salary.

What Penn State did was commit horrific violations of criminal and civil laws, and they should pay every possible price for shielding Sandusky. This is why we have a society with civil and criminal courts. Instead we have Mark Emmert inserting himself in a criminal matter and acting as judge, jury and executioner, in the style of NFL commissioner Roger Goodell.

The discussion we should be having is how to organize the outrage of the Penn State campus and the people of Pennsylvania to expel the entire board of trustees.

Private, unaccountable actors have no business cutting the budgets of a public campus.

It is a thought-provoking piece.


  1. jws1 says

    I refuse to shed tears for Penn State. Fuck ’em. They deified a football coach and a football program, and their slavish submission is precisely what set the table for this situation – Joe Pa was God Pa and could do anything he wanted. If the NCAA is out-of-bounds, then maybe the “bounds” ought to be a different. Everybody says they want authorities to prosecute corruption at the highest levels, except when it’s their favorite football program at fault. They let the team run the university; now they can pay for that.

  2. longstreet63 says

    Y’know, I’m pretty sure they could avoid that fine if they simply closed down their athletic programs and ended affiliation with the NCAA.
    It’s not some extralegal death sentence. It’s a statement that NCAA no longer wishes to be associated with such a place, but if they perform an outrageous forfeit, they will grudgingly be allowed to continue.

  3. davidcortesi says

    The NCAA claims they had authority to do these things under their bylaws, bylaws which Penn State like other schools, agrees to in order to belong.

    On the NCAA web site there is on the right a link titled NCAA authority to act at which the reasons are detailed. Here is the nut of it:

    …the leadership failures at Penn State over an extended period of time directly violated Association bylaws and the NCAA Constitution relating to control over the athletic department, integrity and ethical conduct.

    So it appears that as a member school you agree to bylaws that allow the NCAA to impose punishments of this sort on you, as part of joining. There’s nothing “lawless” about that, quite the contrary. It’s a voluntary contractual agreement.

    As to the claim that “Penn State committed no violations of any NCAA bylaws,” this is clearly not so. They (the school) quite clearly did not have “control over the athletic department” and there were obvious and well-documented breaches of “integrity and ethical conduct.”

    The punishment consists of a fine ($60M) which is explicitly equated to one year of income from the football program — that’s to the point and relevant, right? — and the retroactive erasure of then years’ worth of football victories. That latter seems a bit harsh and some are claiming it was only done so that the NCAA would not have to acknowledge Paterno as “winningest coach” any more. But OTOH, the maintenance of the rule book and the records is very much in the NCAA’s purview.

    There are additional sanctions (read the full list here) which are explicitly intended to break or dilute the “culture of football” at Penn State that permitted people like Paterno to behave like little tin gods. These include four years of no post-season play, free transfers out for current players (no one-year sideline for a transfer as usual), and a reduction in scholarships.

    These are reasonable actions if your intent is to make a school focus on things other than football. Does the NCAA have a “right” to try to break down a “culture”? Well, if their intent is the health of the sport and of all student-athletes, yeah, I can see that this is worth doing.

  4. mck9 says

    Zirin has a point.

    The NCAA is punishing behavior that, we can all agree, was pretty awful. The danger is that the moral opprobrium justly attached to that misbehavior may lead us to cede to the NCAA an authority, and a power to punish, to which it is not entitled. Once ceded, that power and authority could be use for other ends.

    Suppose the NCAA were outraged at Penn State because an assistant coach, with full knowledge of the head coach, had done one or more of the following:

    1. Appeared regularly on a local radio show, spewing vile and hateful rhetoric against blacks, gays, and women.

    2. Appeared regularly on a local radio show, promoting atheism and spewing blasphemy against Jesus and the Pope.

    3. Had sex-reassignment surgery.

    3. Maintained a long term same-sex relationship.

    4. Had an abortion (presumably not a football coach).

    If the NCAA were to apply sanctions to Penn State because of these supposed outrages, would we not protest that the NCAA had no business
    using their power to enforce their own values on others? What’s the difference?

    But you say: ah, but those activities are all legal. Raping children isn’t. Fair enough; let me change my hypotheticals. The assistant coach has, with the full knowledge of the head coach:

    1. Jaywalked routinely.

    2. Padded his expense accounts and cheated on his taxes.

    3. Smoked marijuana on a regular basis for years, and occasionally used other illicit drugs.

    4. Run a fraudulent pyramid sales scheme based on the marketing of skin care products.

    5. Run a profitable sports medicine clinic without medical credentials.

    I have trouble imagining the NCAA imposing severe sanctions, or any sanctions, based on these clearly illegal behaviors. I have NO trouble imagining sanctions based on some of the earlier offenses, if the current sanctions are accepted as appropriate.

    One need look no further than the case of Muhammad Ali, stripped of his heavyweight boxing title in 1967 because of his resistance to the draft as a conscientious objector. His conviction for draft evasion was eventually overturned by the Supreme Court, but he didn’t regain his boxing crown until 1974.

    The sanctions applied in the wake of l’affaire Sandusky have little to do with the fact that raping children is illegal, and everything to do with the fact that raping children is horrific. They are primarily, if not entirely, an expression of moral values.

    We may feel like cheering the NCAA on as long as we share those values. What happens when we don’t agree? Who decides what values the NCAA enforces? From whence does the NCAA derive its just powers to enforce the values it chooses to enforce? How is it to be held accountable for those choices?

    Without accountability, the power to punish for good reasons can be used just as easily to punish for bad reasons.

  5. Pierce R. Butler says

    Something’s missing here.

    Sandusky cannot possibly have been the only pedophile attracted to a high-status career featuring eager-to-please children whose parents tell them to do what “Coach” says. Nor can the Penn admin have been the only ones willing to turn a blind eye.

    If other Athletic Departments don’t turn anyone else in, I will suspect the spirit of Paterno lives on. There cannot have been only one rotten apple in the sports mega-barrel for the last decade.

    Not to mention the closely-related sexual-predation of women students by certain jock cultures, also tolerated on too many campuses. Or the often-successful hush-ups of student suicides (which has a limited connection to rape culture, but a very strong one to collegiate cover-up artists).

  6. 'Tis Himself says

    One thing I like about professional baseball and hockey is they run their own farm systems. The NFL and NBA use colleges and universities to train prospective players. Maybe if the NFL and NBA didn’t recruit college players, college sports, particularly football and basketball, wouldn’t be such a big deal.

  7. Makoto says

    Not that thought provoking, to be honest. They choose to be part of the NCAA, which means they can be punished by that group for behavior deemed bad. The systematic coverup of child rape is horrible, and no reparations will ever cancel it out.. but it’s surely a step in the right direction to say to other schools (and Penn State) “never, ever do this”.

  8. Chiroptera says

    mck9, #4: We may feel like cheering the NCAA on as long as we share those values.

    Yeah, that’s pretty much what we do. You say this as if it were a bad thing. It’s not.

    What happens when we don’t agree?

    Then we don’t cheer. We boo and give raspberries.

    Who decides what values the NCAA enforces?

    The NCAA and it’s governing body consisting of representatives of the schools that are members.

    From whence does the NCAA derive its just powers to enforce the values it chooses to enforce?

    From the fact that membership is voluntary, and from the fact that the rules are set by representatives of its members.

    How is it to be held accountable for those choices?

    If the member schools don’t like it, they can tell their representatives to change it. If individual schools don’t like the decisions by the majority, they can decide to opt out of the NCAA altogether.

  9. Robert B. says

    Oh, please. Think about the whole system, here, if your thoughts are going to be provoked.

    Why do you think Sandusky’s crimes were covered up? It wasn’t that everyone actually supported what he did, or wanted to do Sandusky a favor, or were getting personally blackmailed. It was because of football. Or more specifically, football money. Hundreds of millions, maybe billions of dollars in football money. One could say, without much stretching the truth, that the NCAA is the motivation for this coverup. If they let that stand – if they continue to provide positive utility for covering up child rape – they become effectively complicit themselves, and send a message to every other school that this kind of coverup can be the correct strategy.

  10. blindrobin says

    Spot on. The football, basketball, and baseball programs at American universities have become toxic. They should be spun off as businesses financed by the sports associations that they feed into with no financial connection to the academic institutions. Yeah I know it’s not going to happen, at least not until the state university system collapses and is privatized. The way things are going that’s not too far off.

  11. eigenperson says

    To be sure, I would condemn the NCAA for doing those things. That would be an abuse of its authority as a large athletic league.

    However, what it’s actually doing is clearly not an abuse of its authority.

    In either case, its accountability comes from the freedom of its members to withdraw from the NCAA. If the NCAA’s values were not shared by everyone (for example, if it decided that having a gay coach was cause for punishment), it would quickly fail as a league, as all its member colleges would leave.

  12. Greg says


    Sorry to pick a nit, but you should say “Penn State” or “PSU”. The word “Penn” refers to the University of Pennsylvania–that school’s only crime is having pretentious students.

  13. lee says

    This may have already been mentioned, but the entire 60 million is going toward child abuse prevention and counseling nationwide. I think the fine is fair.

  14. cafeeineaddicted says

    I think Robert B. nailed it. The whole reason this whole sorry affair remained hidden for so long was because of football money.

    The situation reminds me of discussions of corruption in the corporate and political spheres, where the bottom line is that corruption endures because even when the corruption is outed, it remains overall profitable for most of the participants, even when a few guys take the fall.

  15. Kate from Iowa says

    Right, and in the statement that the NCAA made, they do clarify that since the coverup was solely to protect the football program, they felt that they had not only the right, but also an obligation to mete out some sort of severe punishment to the school. I think they got this one right. It doesn’t minimise or mitigate the problems with jock culture, but it is a little bit of right in a sea of wrong.

  16. mck9 says

    If the NCAA’s values were not shared by everyone (for example, if it decided that having a gay coach was cause for punishment), it would quickly fail as a league, as all its member colleges would leave.

    Your assertion strikes me as naive. Is Ohio State (just to invent an example) really going to leave the NCAA just to protect the rights of some assistant coach? With millions of dollars and dozens of scholarships at stake? It might, but I wouldn’t bet on it. The people who make those decisions will make them in defense of their own institutional interests. I know nothing about the governance of the NCAA, but I doubt that either the assistant coach or the general public will have any meaningful voice, nor any effective recourse outside of the courtroom. The system is set up for the benefit of the athletic departments. Other parties are dispensable.

    At least in my youth, the sports culture was rather like the military culture: dominated by social, political, and religious conservatives. I don’t know if that’s still true. Even if it isn’t — even if they’re all liberals now — I’m not comfortable with having a bunch of sports executives setting themselves up as the arbiters of personal morality, with both the means and the will to impose their values on those with little ability to resist.

    Among lawyers there is a saying that good cases make bad law. When guilt is sufficiently clear, and the offense sufficiently heinous, the courts will find a way to punish. The results may be a very bad precedent.

  17. says

    I’m not sure I see much of a difference between the NCAA sanctioning PSU and a fraternal organisation sanctioning a member. The relationship between PSU and NCAA goes both ways; that is, PSU reflects on the NCAA as a whole.

    The NCAA has, as far as I can tell, no legal recourse to force PSU to pay the fine, or cap their scholarships, or stop claiming wins from 1998 on, other than to remove them from the organization.

    Basically, as I understand it, they’re saying “PSU’s conduct has been so egregiously outside of our moral standards that if they do not abide by these sanctions we will not allow them to continue to be a part of this Association”.

    If I’m interpreting the situation correctly, then I have no issue.

  18. Matt Penfold says

    That is how professional sports are organised in Europe, especially football.

  19. Kevin says

    I suppose the only issue I have with the penalties is the voiding of the wins.

    To me, that’s a pretty strong slap in the face of hundreds of young men who did precisely and exactly nothing wrong other than choose Penn State as the place they wanted to play football. They weren’t complicit in Sandusky’s crimes.

    It’s tarring all of their reputations with a pretty broad brush.

    If the NCAA wants to expunge Paterno’s name from its record books, it could do so in a way that doesn’t demean the accomplishments of players who did nothing wrong.

    I also wonder when the next program will be outed as harboring child abusers. Anyone who thinks this was a ‘one-off’ problem is the platonic ideal of naive.

  20. Pierce R. Butler says

    Greg – Thanks for the clarification. I live not far from the main campus of the U of Florida, and know full well the wrath dumped on the head of anyone confusing UF with Florida State.

  21. Leo says

    Is Ohio State (just to invent an example) really going to leave the NCAA just to protect the rights of some assistant coach? With millions of dollars and dozens of scholarships at stake?

    And do you not think students, professors, other schools, activist groups, etc. would not put pressure on the NCAA? Based on your thinking that sports culture used to be “dominated by social, political, and religious conservatives,” I can reasonably guess that your answer may be “No,” but I would not agree.

  22. says

    The fact that anyone gives a damn about records or recruiting for a children’s game in the face of child rape and a massive cover-up really displays how absolutely diseased sports culture in America. As far as I’m concerned, we need to shut down the NCAA entirely, and relegate college sports to the appropriately trivial level of importance that it deserves.

  23. Leo says

    One of the big issues with your examples seems to be that you aren’t making it clear if others in the school’s administration would be covering up these “issues.” If Sandusky had been doing what he did, and no one else knew, then I would be outraged at the NCAA right now. To use one of your examples, if a coach had been running a pyramid scheme, and others in the university knew about it, then, yeah, the NCAA should lay down the hammer. Otherwise, if no one else knew, then punishment should be limited to just that coach. (The NCAA perhaps have no authority in fining him, but they could ban him from ever coaching at an NCAA affiliated university again. And I’d be fine with that.)

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