If tomorrow it emerges that a staff member at a blue-chip college basketball program has for decades used his position of power and prominence to secretly carry out terrible criminal actions of unimaginable scope and magnitude, I will have no problem whatsoever with the other revenue-sports-playing universities in the vicinity collectively considering — at the conference or national level — whether some form of censure and redress, subordinate to and cognizant of criminal proceedings, might be appropriate.
Apparently I’m in the minority. Today the conventional wisdom is that those universities rushed to judgment in 2012 when they reacted to Jerry Sandusky’s crimes by fining Penn State, imposing a postseason ban, taking away some football scholarships, and vacating 14 years’ worth of Joe Paterno’s wins. Reasonable people can differ over whether that was the best blend of sanctions, but what’s being asserted now is the far more sweeping claim that any action at all undertaken by the universities was categorically unwarranted. That strikes me as a novel contention, to say the least.
It was on March 31, 2011, that Sara Ganim first reported in the Harrisburg Patriot-News that Sandusky was the subject of a grand jury investigation on charges of sexual assault. Seven months later, on November 10, Paterno was fired, Penn State students went nuts, and Twitter went nuts over the fact that Penn State students were going nuts. Not until the following summer, on July 23, 2012, did the NCAA announce its consent decree with Penn State. In other words the rush to judgment took nearly a year and a half, which sounds about right for the NCAA.
There would of course be subsequent lawsuits from local elected officials — there always are — but those initiatives from selfless public servants acting without the slightest interest in furthering their political careers could wait until after that year’s elections. And in 2013 when Pennsylvania governor Tom Corbett’s pro forma suit against the NCAA was correctly laughed out of federal court in a relative heartbeat, it seemed like this whole thing might finally be staggering toward its long delayed denouement.
Hardly. Corbett’s only mistake was his choice of venue. Pennsylvania state senator Jake Corman sued the NCAA at the same time as Corbett, but Corman’s suit is still alive and well in the Commonwealth Court of Pennsylvania. He has succeeded in prying loose a number of 2012-vintage emails from the NCAA that show…what, exactly? That some NCAA staffers 10 days to two weeks before the finalizing of the consent decree regarded the association’s jurisdiction in the Sandusky affair as as “a stretch” and possibly even “a bluff.”
This is of course a perfectly defensible position (I voiced it too), one that very easily could have prevailed. I can envision a statesperson-like press conference where the NCAA contented itself with merely a bow toward law enforcement, a big donation to the appropriate charitable organizations, and a formal censure of Penn State. But let’s not pretend for a moment that the NCAA wouldn’t have then been absolutely savaged for turning a blind eye to truly criminal behavior. It would have been said that the NCAA cares more about enforcing its absurd bylaws on amateurism than it does about the fact that one of its member programs harbored a predator. Nor do I doubt that the NCAA, eventually, would have been sued silly by attorneys acting on behalf of as many of Sandusky’s victims’ families as they could gather.
It didn’t play out that way. For better or worse, the NCAA’s member universities, through the medium of the executive committee, pondered this jurisdictional quandary and deliberated on how best to visit their displeasure on Penn State absent any bylaw spelling out what is permitted in cases where a former staffer uses the program’s facilities to commit felonies. What resulted, by unanimous vote, was the consent decree. No oil painting, surely, but the considered product of a representative body of member schools.
You’ll also have to forgive me for not being troubled to find that NCAA staffers questioned whether they were doing the right thing. In fact I would feel far better about the process behind the Freeh Report, for example, if emails surfaced wherein investigators were fretting over whether they were really doing justice to Penn State president Graham Spanier. My worry is precisely that there are no such emails because there were no such qualms.
I’ll plead guilty to one count of being a zero-litigation-tolerance meliorist, but at root I’m an optimistic zero-litigation-tolerance meliorist. I honestly believe that someday soon we’ll have a national confederation of revenue-sports-playing universities that is laudably reality-based on blending amateurism with professionalism and even (o, the joy!) on the best way to measure the performance of basketball teams.
And when that happy day comes, the confederation will sit down for its first meeting filled with blank-page New Frontier-variety optimism only to find they have inherited a vast and incredibly jumbled debris field of patently silly rulings dating from the epoch when everyone had simply lost all patience with the NCAA. Included in that “everyone” is most certainly the subset of men and women wearing black robes and wielding gavels, who at least know well enough to cloak any NCAA exhaustion in soothingly reformist cadences, to wit: “High school athletes who had no involvement in the criminal acts were prevented from obtaining a free college education. ”
Thus at a stroke the Commonwealth Court serves notice to any coach keeping a scholarship open for a semester, any team with a walk-on, any conference docking a program a grant-in-aid or two, and indeed the entirety of Division III that what they’re doing could bring a lawsuit. The Court reached this decision in a fraction of the time it took the NCAA to arrive at the Penn State consent decree and in the absence of any provision in the Pennsylvania constitution authorizing one state to regulate athletic scholarship limits in all 50. (Hey, saying some sanctioning body is guilty of a rush to judgment really is fun! I stand corrected!)
The original purpose of Corman’s litigation was to require that Penn State’s fine be paid to charitable organizations exclusively within the state of Pennsylvania, so the fact that he chose the NCAA as the target of his suit speaks volumes. For it turns out the Big Ten imposed its own eight-digit fine on Penn State in 2012, one that expressly stipulated that the resulting proceeds would be disbursed across several state lines. Under the league’s directive, funds relinquished by PSU are to be “donated to established charitable organizations in Big Ten communities dedicated to the protection of children.”
As recently as this past September the Big Ten’s fine was reaffirmed without any objections being voiced by Penn State, Corman, the Pennsylvania General Assembly, the Common Court, national sportswriters, Twitter, or anyone else. That fine is still in place today. No one is asking or particularly cares if the Big Ten had jurisdiction, if the conference’s authority is dubious, or if the league rushed to judgment. The Big Ten’s actions were functionally identical and precisely contemporaneous to the NCAA’s, but without the “N” and the “C” and the two “A”s there is no story. Funny how that works.
The continued prolongation of this whole sad Penn State sideshow accomplishes little or nothing except employing lawyers. This whole sad sideshow has less to do with justice and more to do with an elected official from Penn State’s district predictably using his home-court advantage to twist the NCAA’s tail. The fact that his lawsuit has met with an unpredictable degree of success and has shaken loose some emails provides good spectator sport, surely. But if the emails of people debating the proper course of action in an unprecedented situation are your idea of a scandal, have at it. It is not mine.