So much of the debate over whether and how the NCAA could punish Penn State has focused on areas of the NCAA Manual like Bylaw 10.1, Bylaw 2, and Bylaw 19. But there’s another place Penn State might need to worry about should the NCAA decide to follow through on investigating the athletic department. It’s a bylaw that both clearly establishes the NCAA’s authority to discipline Penn State, while also allowing it the freedom to impose a wide range of sanctions, up to and including an NCAA penalty that is worse than the “death penalty.”
At its most basic, the NCAA is a voluntary membership organization. To put it more bluntly, the NCAA is a club. As a club, it has the power to let in the types of organizations it likes. More importantly, it has the power to kick schools out of the club:
Bylaw 3.2.5 Loss of Active Membership
3.2.5.1 Termination or Suspension. The membership of any active member failing to maintain the academic or athletics standards required for such membership or failing to meet the conditions and obligations of membership may be suspended, terminated, or otherwise disciplined by a vote of two-thirds of the delegates present and voting at an annual Convention.
The bylaw goes on to define the process for terminating, suspending or disciplining a member school. Specifically, the Board of Directors and the school must be notified of the action by November 1 before the Convention. That notice must state the grounds on which the action is based. The Board of Directors must approve the action to go forward, and it is then published in the Official Notice of the Convention. The vote would occur at a business session during the Convention, which this year is January 16–19 in Dallas.
Under This Bylaw, the Membership of the NCAA Could Do Virtually Anything to Penn State
They could cut scholarships, impose the death penalty, give postseason or TV bans, fine the school, or make up any other punishment. Penn State’s membership could be terminated or suspended, meaning the school loses all rights and privileges of being a member of the NCAA. That effectively means an indefinite death penalty for the entire athletic department.
A quick aside about the difference between termination and suspension. If a school’s membership is terminated, it can only be reinstated at an annual Convention, meaning the punishment would have to last a minimum of one year. If a school’s membership is suspended, the Board of Directors can reinstate it at any time after six months have passed.
Bylaw 3.2.6 explains why all the limits on the NCAA’s enforcement process do not apply here. Those limits are only for discipline between NCAA Conventions. If the entire membership can get together to pass judgment on another member, the enforcement process does not apply.
With all the focus on the NCAA’s normal enforcement process, the challenge has been to shoehorn potential violations of catch-all bylaws like unethical conduct or lack of institutional control into a process designed to start with more specific misconduct. Discipline at an annual convention needs none of that, and the conditions and obligations of membership include the most catch-all of all catch-all bylaws in the NCAA Manual:
Bylaw 3.2.4.12 Standards. Active members agree to maintain high standards of personal honor, eligibility and fair play.
That statement can be parsed many ways, and the NCAA members could always fall back on reading “with respect to NCAA rules” at the end of the bylaw. But combined with statements like Bylaw 2.4’s lofty claim that ethical conduct “should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program,” it certainly establishes enough credibility for the NCAA membership to act.
Should the NCAA get involved, this is the best way. It sets a precedent in the way precedent should be set: by a super-majority of the entire association agreeing to move the organization in that direction. It does not require that the normal enforcement procedures be stretched to accommodate a scandal that goes far beyond NCAA rules. And it matches an unprecedented situation with an equally unprecedented vote.
It would also firmly and publicly (since such a vote would turn the NCAA Convention into the most watched off-field sports moment of the year) state, right from the members’ mouths, what the NCAA will be going forward. If the members are faced with this decision and choose not to discipline Penn State, the NCAA is more or less a sports league that has an educational component to it. If they do punish or kick out Penn State, then the NCAA establishes at least a claim to something more, both in sports and higher education.
Do you think the NCAA should suspend or terminate Penn State? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!
Why would the NCAA go after Penn St? It should be the state of PA that takes action. I don’t expect the NCAA to do anything. Don’t touch it if you don’t have to!
They would if the NCAA finds something to investigate and that investigation turns up something worth punishing. My post is about using something different than a regular enforcement case to do the punishing if necessary.
Burn it to the ground. Terminate PSU indefinitely.
Oh good, so instead of having to use the incredibly broad, blank check language in 10.1, we can now very clearly use the incredibly broad, blank check language in 3.2.1.
I’m just a little confused about what we’re accomplishing here. If the issue is deterrence, which is what the NCAA is generally trying to do, that job is done — there’s no risk of this being repeated, unless someone wants a very clear understanding of how they’ll be fired, go to jail, and end their careers. There is no ameture status concern here. None of this vengeance helps the victims.
This all seems like blind rage to me. I understand it, but I’d prefer we focus on being constructive and figure out a way to heal and move on than negatively affecting thousands of innocent students, taking away the jobs of thousands of innocent support staff, hurting hundreds of innocent PA business owners and not helping the people who were actually hurt in all of this one bit.
I find this as a very interesting take. I don’t know if I fully agree with it yet. That will take a little more thought. It does manage to solve the problem I have with the NCAA going the normal enforcement route. Reading the list of major penalties in 19.5.2 all seem sadly trivial to what Penn State has done and has been why I didn’t want the NCAA to get involved. Just let the Department of Justice handle it. This route seems to solve that problem. Thank you for coming up with another avenue the NCAA could look to go to for punishment.
I’ll trust in Joe’s judgment..
“It’s
unbelievable to think that kind of corruption came right from the top
of the power structure. The NCAA did what it had to do” in canceling
SMU’s 1988 football season.
Joe Paterno
May 17, 1987
I can not believe the people of this country think PSU has been punished. The employees have been punished but the institution, and specifically the athletic department, that allowed the access to the athletic facilities by this creature, allowed the abuse to happen in athletic facilities, turned a blind eye when it was reported by employees of the athletic department and then tried to cover it up from all levels of the chain of command including the Athletic Director and the Football Head Coach has yet to be held responsible except in the publics eye. The current athletes are not responsible and came to PSU with good faith but punishments such as banning PSU from post season activities and/or reductions in scholarships and /or loss of NCAA and Big 10 revenue could be the punishment that could very well be applicable.
As far as innocents being punished, the people who can’t be helped that much are those outside of the university that rely on Penn State football as part of their livelihood. The NCAA can work to help the players find landing spots, and the coaches and administrators who did nothing wrong will still likely get paid. It’s the business owners, the parking attendants, the concession people etc. who will likely be the collateral damage.
*yawn* why not just have giant spiders eat the university? has about the same chance of happening.
Look up the Sinful Seven. It was impossible to get enough votes to kick those schools out of the NCAA back in the 1950s, when there weren’t close to as many NCAA member institutions as there are today. Nobody wants to set that precedent.
They got a majority though. And you don’t have something like where the Big Ten is pushing for the punishment having found a way around the rule. Plus compare this precedent (requiring a 2/3 vote to punish the school in these extreme cases) vs. the precedent of trying to shoehorn this into the normal enforcement process.
Yes! This is horrible! Joe is dead and so is his legacy. Statue is next. Sandusky 450 years in prison. Spanier and Curly will be in prison jumpsuits next. BUT all of these people are right! WE NEED COLLECTIVE PUNNISHMENT TO THE INNOCENT AS A WARNING OF OUR OUTRAGE! RRRRRRRRAAAAAWWWWWRRRRR! So as of now, the University itself must be closed forever! All mentions of Penn State or PSU must be expunged! AND all current and former students, faculty and staff should be executed at high noon with the slogan “For the Children!” GET EM!
If you can’t see how the collective self-righteousness is become a knee-jerk, public-relations witch hunt, then shame on you all.
I’m truly conflicted about this. On one hand, Penn State provides an excellent educational opportunity for student-athletes via football scholarships. It’s a fine university that graduates most of its athletes expeditiously. To the extent this opportunity is lessened or eliminated, that’s a punishment of the innocent, which saddens me.
On the other hand, the Penn State football program has essentially served for at least 20 years as a child-whorehouse and human trafficking institution. Criminal charges have been filed against senior officials in the university. The long-time revered head coach suborned, and conspired to conceal, multiple felonies associated with child rape. How can such egregious offenses go unpunished?
Glad I’m not charged with playing Solomon on this one. But at the very least, Penn State needs to remove all statues and honors of Paterno. His crimes cannot be accompanied by such recognition. Penn State’s failure immediately to remove the statue at Beaver Stadium is inexcusable.
Max, I agree with you these crimes must be punished. But, I am sick and tried of hearing TV and newspaper sports commentators passing judgement against the whole athletic program and the University. Bob Costas even said that if thousands of innocents get hurt by such collective punishments then thats’ just “collateral damage.” WHAT? Do we apply that in the justice system? Yes there is evil and crime in the world. YES more punishments and reforms are needed. BUT TO THE GUILT AND THE RESPONSIBLE PARTIES. Why do people want to compound these crimes by punishing the innocent? I don’t get it OTHER than its for media types to fluff their feathers in moral outrage. Why didn’t they attack Joe or Penn State years ago as to why this guy never retired or told the U they couldn’t fire him? They all sang his praises and now they want to punish the kids and teachers and NEW coaches trying to SAVE and HEAL. All I am saying is punish the criminals and make the university pay BIG money in damages and make a whole program to help exploited kids. Justice is demanded and rightly so, but punish GUILTY not everyone with a Penn State logo on their clothes or the small business people who live and work near the campus.
@facebook-723176894:disqus it is really important to remember that “BIG money in damages” is going to destroy the university. I don’t like the blood lust talk either, but if you can agree their should be monetary punishment it is going to be very difficult to separate the collateral damage to current students and the community at large. The frustration needs to be directed at the irresponsible leaders of the university who put the entire community at risk with their despicable behavior. Just a sad, sad situation.
Hmm. Very interesting, John. But why don’t we have the COI do its job, and instead of pawning this off to all of the NCAA members. This seems to an egregious shirking of responsibility. That’s like saying the courts shouldn’t deal with a criminal, and instead it should be left to a super majority vote of all U.S. citizens. I know the COI likes to make its rules up as it goes – and it certainly wouldn’t be the first time that the NCAA broadly interpreted the bylaws to punish a school, while narrowly interpreting its rules to let another school skate (see, Cam Newton). I got an interesting idea, John, how about we have the NCAA and COI consistently apply its rules and punishments.
John, answer me this, why do you think the NCAA says precedent doesn’t matter (although it apparently did in the Boise State appeal)? It’s odd, because courts, interpreting 1000′s of laws against millions of different violations, are required to follow precedent. In fact, it’s a cornerstone of our due process – we think there’s something fundamentally unfair if one speeder, who’s family works for the police, gets a warning and another, without any connections, gets thrown in jail for 10 years. Given the involvement of Graham Spanier and his involvement in forming and doling out punishments at the NCAA, the NCAA better step up and take responsibility for punishing its owns…
Anyways, John, just answer me why you think the NCAA doesn’t follow precedent, yet courts are able to do so everyday.
Hmm. Very interesting, John. But why don’t we have the COI do its job, and instead of pawning this off to all of the NCAA members. This seems to an egregious shirking of responsibility. That’s like saying the courts shouldn’t deal with a criminal, and instead it should be left to a super majority vote of all U.S. citizens. I know the COI likes to make its rules up as it goes – and it certainly wouldn’t be the first time that the NCAA broadly interpreted the bylaws to punish a school, while narrowly interpreting its rules to let another school skate (see, Cam Newton). I got an interesting idea, John, how about we have the NCAA and COI consistently apply its rules and punishments.
John, answer me this, why do you think the NCAA says precedent doesn’t matter (although it apparently did in the Boise State appeal)? It’s odd, because courts, interpreting 1000′s of laws against millions of different violations, are required to follow precedent. In fact, it’s a cornerstone of our due process – we think there’s something fundamentally unfair if one speeder, who’s family works for the police, gets a warning and another, without any connections, gets thrown in jail for 10 years. Given the involvement of Graham Spanier and his involvement in forming and doling out punishments at the NCAA, the NCAA better step up and take responsibility for punishing its owns…
Anyways, John, just answer me why you think the NCAA doesn’t follow precedent, yet courts are able to do so everyday.
The US Courts, including the Supreme Court, have consistently changed decisions that were based on precedent throughout its history to ensure they come to the correct conclusion. Are you suggesting that it is more important for the NCAA to follow precedent in this situation than it is to punish an institution that systematically protected and allowed a child molester to commit crimes on their campus because they were worried about the damage that would be done to their football program? This is not a case that can be based on precedent because nothing comparable has happened at an NCAA institution.
First, Andrew, when a court deviates from precedent (or overturns it), the Court will explain its position and the rationale for doing so. Courts do not overturn precedent lightly (see Roe v. Wade, which hasn’t been overturned but has been chipped away at). So, no, the NCAA does not have to blindly follow precedent where it believes the circumstances are not applicable, but it should at least give (i) an acknowledgement of the precedent and (ii) an explanation justifying the deviation from it. As to Penn State, I’m saying the NCAA COI has the tools and power under the current Bylaws to punish Penn State. Yet, John Infante proposes that the COI punt this responsibility to the member institutions for a super majority vote, which would never get passed. In essence, John, knowing that the supermajority vote wouldn’t get passed, has proposed the perfect approach for the NCAA to not punish Penn State but at the same time get the NCAA PR cover under the defense, “well, the member schools didn’t want to kick Penn State out.” This is a silly proposal, and there is no need for it. The NCAA, not shy from broadly interpreting its rules when it wants to punish someone, has plenty of authority under the current Bylaws to punish Penn State. The NCAA just does not want to – remember, Graham Spanier (president of Penn State) was very involved in the NCAA and so his NCAA cronys don’t want to hold him or his school accountable – sort of like one Paul Dee and the University of Miami.
That is an interesting take. I agree that the NCAA intentionally creates broad rules so they can ultimately have the final say in specific cases, however I viewed this article as more of a last-ditch option to make sure that the NCAA had the authority to punish Penn State. There was a lot of talk and speculation last week questioning whether the NCAA had the authority to punish Penn State under the current bylaws. This option would guarantee that there was at least some review and vote for punishment. This is not the ideal punishment scenario, but there are not really any cases that set a precedent for the kind of punishment necessary from the COI. Why do you think that the vote wouldn’t pass a super majority? Because of the precedent that it would set for future violations?
I don’t think the vote would pass because of a couple of problems: First, all the other members of the Big 10 have a vested interest in keeping Penn State in, right? This is a school with a storied football program that brings in a lot of money to the conference members. Second, many schools will likely be loath to codemn one of their own. These sorts of votes are often tainted by the “what if it were me” fears. This problem can be seen with lawyers and doctors (when they self regulate). Rarely does a self regulatory body made up of doctors strip the license from another doctor. This is also seen with police departments. And if a super majority vote is required, I’m very skeptical that the vote would be gotten. That said, the COI has broadly, I mean broadly, interpreted its rules in the past. Recall in SC’s case the new Paul Dee standard of “high profile athletes require greater compliance oversight.” That wasn’t an NCAA bylaw. That was something the COI made up on the fly, so for John Infante to suggest that the COI just doesn’t have the power to take action is nonsensical when you look at the COI’s past conduct. I truly believe the NCAA is a corrupt institution, plagued by a greedy desire to profit off the backs of nonpaid athletes. Let me ask you this: Mark Emmert, the President of the NCAA, leaves University of Washington, where he was President and oversaw more than 30,000 people running the university, and goes to the NCAA, where he oversees at best a couple 100 people, and he gets a pay raise???? Why would he get a raise to run a smaller organization, the principal purpose of which is to purportedly protect the interests of college athletes? Make no mistake. Football and basketball are “big” business, and the NCAA is profiting mightily off of it (particularly, the basketball tournament).
Andrew – To be clear – the point of my speeder analogy is highlighting the cronyism that plagues the NCAA. So, a speeder who is connected skates but one who is not gets hammered. The reason the NCAA does not want to be bound by precedent is so that it can act in arbitrary and inconsistent manner. The fact that the members of the COI and appeals committee are affiliated with member schools should be troubling – in other words, the guys interpreting and enforcing the rules benefit depending upon the outcome of a particular matter. I believe it was in the early 1990′s that it was first proposed that the NCAA’s enforcement committees should be comprised of unaffiliated individuals. The NCAA acknowledges this to Congress. Yet, 20 (or more) years later, the NCAA has not changed. Wonder why? And I wonder why the NCAA does not want to follow its precedent? Cronys protecting their own – Graham Spanier.
Real mature response Christopher…
If a company has systematic racist hiring practices, would just firing the people responsible be enough? If a company covered up sexual harassment would just firing the people responsible be enough? You and I both know the company itself would be justly punished.
Here’s the reality. Penn St. bears responsibility for their actions. As an entity. They empowered individuals who did horrible things. If it was just a rogue agent, that would be one thing, but clearly the coverup involved multiple powerful people. You can not just fire a few people and act as though you’ve shown contrition. The only way for Penn St. to show true, meaningful contrition is to set the right example. To show that it is not worth it to cover things up for the sake of the football program, that the risk far outweighs the reward.
So, yes, you punish the football program because the football program did horrible things. Did Paterno rape children? I imagine he used logic much like yours, he did nothing wrong, his football players did nothing wrong… so why let them pay for what Sandusky did? You see what this leads to.
There was rampant racism in congress, most or all of Major League Baseball, and most or all of the current southern (and many of the northern) football power programs, amongst other places. Other than the easy congress joke, is the argument that we should tear down every institution guilty of horrible crimes? Is society better off if we scrap 100% of a generally well-built institution because 1% of it is heinous? Or does it make more sense to rework that 1%?
I like the idea of punishing the people to the full extent — the one’s still alive, that is — rather than pretending like an institution, which is really just a banner all of those people stood behind, has any sort of conscience, culture or cognitive ability. An institution has never raped anyone. Through the criminals in jail.
Yeah, JD. I like that too. Now go tell that to the kids at SC who have sat out the last two years of bowl games for purported violations committed when they were in grade school.
Perhaps one of the drawbacks of your approach may be that, well, it sort of encourages schools to cover up wrong doing long enough so that there are all new kids at the school. And then if the school gets busted, well, don’t punish the innoncent kids here now, go after the wrongdoers – you know, the ones that have graduated and are no longer at the school and could care less about the NCAA. Remember, whatever they do with PSU should be consistently applied to other schools, so if the “don’t punish the innocent” defense works for PSU, it should be similarly available to all other schools. Not that precedent and consistency has any meaning to the NCAA.
Any kid that went to USC and didn’t know USC was going to get its comeuppance at some point was delusional. The violations by Carroll’s program were one of the worst kept secrets in NCAA history.
Specifically, what were the violations by SC? USC had a compliance department that met NCAA requirements. The violations were all by RB and his parents, most of which took place 100′s of miles away from campus. The COI made up a new standard to get SC. Nothing more, nothing less. After the SC ruling, the NCAA comes out and says it’s not bound by precedent?? Yet, when the NCAA looks at precedent when it overtuns the Boise State penalties. This should raise red flags about the arbitrary nature of the process. But back to your point, so given how removed SC was from the actual violations – SC’s guilt was only not having better compliance set up – it would be reasonable for recruits to believe SC was going to be treated consistently as other programs.
Look, after Paul Dee tells SC that its compliance department was lacking because RB was a “high profile” athlete, he defends his Miami program, which allegedly involved more than 70 athletes, on the defense of “I didn’t know.” The old bury his head in the sand defense – the same one he chastised SC over. The NCAA is corrupt and its used in an abusive and arbitrary manner solely to benefit certain “favored” members.
Are you kidding with this? ”
it sort of encourages schools to cover up wrong doing long enough so that there are all new kids at the school.”
“Schools” don’t make decisions, people do. Every person that made a decision is more than likely going to jail, so no, that’s not “sort of encouraging” anything.
And I don’t understand all the people defending the idea that we should punish the innocent because we’ve done it before. How about this — how many NCAA violations would occur of every Coach, AD and president was fired and their careers ended if they were found to have violated primary NCAA rules? You think Tressel would have covered up a stupid kid doing stupid things with a tattoo artist if he knew doing so would mean never working in football again (he was working for the NFL within a year, and likely will be back to college after the show-cause ends)?
Penn State needs at least the Death Penalty
Sometimes there has to be a lot of pain spread around to keep our institutions honest and transparent. No pain, no gain.
Nice points…but the NCAA will do nothing and everyone will want to throw up in their mouths. Sorry just my opinion…but it seems to becoming a reality the more and more Mark Emmert keeps saying there “may be” sanctions…follow that “may be” very closely all 2012 football season…bc that’s all it will be. Always remember, may be usually means no…in other words…nothing will happen.
The discussion about if any violations have been committed that would/should cause action by the NCAA continues to focus on the single case of Jerry Sandusky. I would think that the larger issue that, was disclosed through investigation, is the findings surrounding culture that allowed it. The notion that there is a “student-athlete” at Penn State, that functions as a part of community has clearly been blown from the water. The emails and discussions which surfaced as early as Nov 2011 in the WSJ identified a major contributor to this “culture of reverence”. For an individual to wrangle be able to from this community the ability to establish clear and consistent standards of behavior for all of its members sent a very powerful message. Coach’s discipline was not in addition to what came from the community, it replaced the community. In my mind it has a greater impact on the behavior of a “student-athlete” (and the community as a whole) than receiving a gift of a jersey or suit. I think suspension is definitely in order.
If the ncaa (national colleges against athletes) ever kicked out Penn State, it would trigger a backlash that would shake the sports world. A flood of schools would follow PSU to form a new association. The inner peace of the ncaa is not nearly as peaceful as it appears on the outside. At least 20 schools are known to be furious with the arrogance, greed and impropriety of the ncaa administration.
The idea of reducing scholarships that would have gone to wholly innocent athletes, many of them economically disadvantaged to promote equality in sports recruiting in higher education institutions which represent that their primary purpose is education, not sports, is disingenuous. Screw wringing hands about these individuals missing bowl games; what about the scholarships that provide the education that is supposed to be the primary purpose. Also, what about the disproportionate affect on minorities and on disadvantaged athletes who, at once are wholly innocent individually, and need the scholarships to go to school. They are not replaced because those athletes go somewhere else and get a scholarship – it is musical scholarship and ten chairs have been removed from the room – when the music stops ten athletes will be left standing in the cold with no school money. And talk about innocence being punished those athletes will be at the bottom feeder schools that serve the last athletes in line for scholarships.
It is always that way; higher education institutions that are bastions of humanity and liberality are the first to expand there part time staffs to avoid having to pay the benefits that they preach that government should impose on all other employers.
Here the same air headed liberals are screwing innocent, disadvantaged, minorities to promote their silly little games over their alleged sacred academic mission.