Michael McCann: NCAA's strict penalities will devastate Penn State football for years to come
McCann questions whether the NCAA overstepped its legal bounds by ruling so quickly
McCann: NCAA usually gives schools 90 days to respond, a trial, chance to appeal
Penn State could legally challenge the scope of NCAA authority, McCann writes
Editor’s Note: Michael McCann is director of the Sports Law Institute and a professor of law at Vermont Law School. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as SI.com’s legal analyst. Follow him on Twitter.
The National Collegiate Athletic Association’s sanctions will devastate Penn State football for years to come. They will also harm the university as a whole, with consequences felt not only in the athletic and budget departments, but probably in the development and admissions offices, too.
The severe penalties are probably appropriate, but I question whether the NCAA overstepped its legal authority in issuing them so hastily. Penn State acknowledges institutional responsibility by accepting the sanctions without a legal fight. It can try to repair the institutional flaws that enabled Jerry Sandusky to rape children and allowed a coverup of those crimes, but it misses a historic opportunity to legally challenge the scope of NCAA authority and how it’s applied.
The NCAA is in the business of ensuring that college sports are separate from professional sports and that they keep within the academic mission of its members. Penn State supporters have reason to insist that the NCAA lacks the jurisdiction to punish its members for off-field, nonplayer related crimes. After all, what do Sandusky’s crimes, however heinous, and the associated coverup, however despicable, really have to do with the NCAA’s purpose?
The NCAA’s constitution, which all members must follow, requires that the coaches and athletic officials display ethical conduct. A football coach raping children and the head coach and athletic officials covering it up clearly constitutes unethical behavior.
The NCAA also knows that if the Penn State scandal been unveiled years ago, not only would some boys have avoided the horror of Sandusky, the football team probably would have faced NCAA sanctions. On balance, the NCAA had grounds to sanction Penn State. The heinous acts warranted a stiff penalty.
But I’m less comfortable with how fast the ruling was made. The NCAA clearly bypassed its normal procedure for investigating and sanctioning. This procedure often takes more than a year and involves several hearings.
Consider what the NCAA did not give Penn State. Normally the association notifies the school that an official inquiry is going to be held. Notice is followed by an investigation and, if the NCAA finds fault, a written explanation of the allegations is given. The school has 90 days to respond, after which it may request more time to respond or schedule a hearing before the NCAA’s Committee on Infractions.
Then comes the hearing, which resembles a trial or arbitration hearing. If the school is found to be at fault, it can appeal to the NCAA’s Infractions Appeals Committee. Penn State did not receive 90 days to respond, nor did it get a trial or an opportunity to appeal.
To bolster that its decision-making process makes sense, the NCAA could maintain that Penn State President Rodney Erickson’s decision to sign a consent agreement takes any potential challenge off the table. Besides, the U.S. Supreme Court, in NCAA v. Jerry Tarkanian, made clear the association is not a governmental actor and thus is not obligated to provide due process.
Although the absence of due process does not mean the NCAA can act arbitrarily and capriciously, it does provide it with significant immunity from lawsuits. The NCAA could also assert that Penn State’s own Freeh Report treated the school fairly in finding university officials covering up Sandusky’s crimes. In addition, the NCAA could insist that Penn State is voluntarily a member and has contractually consented to NCAA authority. Last, the NCAA could emphasize that the extraordinary circumstances of Penn State compelled instant action. If the NCAA had waited until next year, Penn State would have played the 2012 season under a cloud of suspicion.
But does the NCAA’s swift justice mean it will now regularly bypass its normal infractions process when it penalizes other schools? Will “swift justice” become the norm? Probably not, because the Penn State scandal is unique on many levels, including that the NCAA could rely on an extensive internal report commissioned by the university itself.
Few schools could afford to commission such an internal report; even fewer would choose to do so. I imagine the NCAA would probably prefer to employ its more deliberate and transparent process as often as possible. A respected process helps to legitimatize NCAA penalties. If NCAA members were routinely subject to swift justice, they may seek alternatives to the NCAA for organizing games.
Still, longstanding criticisms of the how the NCAA does business will only become louder because of today’s news.
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The opinions in this commentary are solely those of Michael McCann.