How Mark Emmert Punished Penn State

Much ink and more pixels will be spilled about the punishments Penn State received and how they affect the football team going forward. That’s because those penalties are severe. If they are not the most severe penalties in the history of the Association, they are at least on par with the schools who have received the death penalty over the years.

But more important is how the punishment came down from the NCAA. This was not a major infractions case. It was not the Committee on Infractions who imposed the

How Mark Emmert Punished Penn State

Image from the AP

penalty. It was the NCAA President, appearing to act more like the commissioner of a league rather than the president of a membership association.

The NCAA was faced with an almost impossible situation: how to punish a school whose egregious conduct was only on the bleeding edge of the NCAA’s rules. Add to that the need to avoid setting a precedent that would push the NCAA into the regular sanctioning of schools for all criminal behavior rather than the sort of serious crimes and top-to-bottom cover-up that occurred at Penn State.

President Emmert’s Authorization

NCAA President Mark Emmert was given the authority to punish Penn State through a joint motion by the Executive Committee and the Division I Board of Directors. This is where the members of the NCAA, including not just Division I but the entire Association, had their say. The representatives of the members give their consent to allowing Emmert to punish Penn State, but established limits on what the president could do.

First, President Emmert was only authorized to negotiate a consent decree with Penn State. He was not authorized to unilaterally impose punishment that Penn State was not willing to accept. This is critical in limiting the impact of such an unprecedented action going forward. If a school agrees to harsher than normal treatment, it does not necessarily expose other schools to the same.

Second, the authorization limited the types of penalties and remedies Emmert could impose on Penn State (again, with Penn State’s agreement). Those included:

  • A significant fine
  • Postseason ban
  • Reduction of scholarships
  • Vacation of wins
  • Loosening of transfer restrictions
  • Binding integrity commitment; and
  • Independent monitoring.

That was essentially the list of penalties imposed on Penn State. While on the one hand it shows that Penn State might have had little leverage or choice in the matter, it also shows that President Emmert was not free to dream up punishments or to increase the sanctions beyond what the representatives of the membership had agreed to.

The Consent Decree

The joint motion explains why Mark Emmert should not have his job titled changed to NCAA Commissioner. But it is the consent decree itself that answers the question of why NCAA schools should not necessarily expect this to become the new business as usual for the NCAA. Specifically, schools facing disciplinary problems with athletes and staff or normal NCAA violations should not expect the president of the NCAA to regularly be involved in their cases.

First, the consent decree goes out of its way to establish the unique nature of the case. While the NCAA’s basis for getting involved with the case was based on principles of institutional control and a potential cover-up, the NCAA said the case went beyond institutional control and monitoring, and noted how the actions of Penn State did not just cover-up the crimes, but enabled them.

Second, the NCAA was not coming to the case needing to develop facts and conduct an investigation. The Freeh report was as comprehensive an investigation as anyone could ever reasonably expect the NCAA to have, if not more so. To suggest the NCAA must come in and redo the investigation would be to suggest that the NCAA must never accept the results of a school’s investigation, even one as damaging to the school as the Freeh report.

The consent decree is just that: a tool for Penn State to consent to the punishment proposed by the NCAA. The decree even lays out the alternative for Penn State by listing what Penn State is agreeing to forego:

Penn State expressly agrees not to challenge the consent decree and waives any claim to further process, including, without limitation, any right to a determination of violations by the NCAA Committee on Infractions, any appeal under NCAA rules, and any judicial process related to the subject matter of this Consent Decree.

Had Penn State refused to agree to the penalties, the NCAA was prepared to take the case to the Committee on Infractions, allow Penn State to appeal, and potentially defend itself against a lawsuit by Penn State alleging that the NCAA ignored its own rules (one of the few ways to argue a violation of due process in a voluntary association).

The Consent Decree and the sanctions it includes are not a judgement as much as they are a plea bargain. The Penn State case at this point is most analogous to a company who submits to an IRS audit that finds violations of state law as well, then negotiates a plea bargain with the state. Faced with more investigations than it could possibly fight or having lost the will the fight any of them, Penn State jumped at the chance to put one in the rearview mirror.

Going Forward

Hopefully, in the midst of a complete rewrite of the NCAA’s bylaws and enforcement procedures, the Association will establish a process for when failures to adhere to general NCAA principles lead not to NCAA violations but to actual crimes. It is reasonable for the NCAA to be struck with a once-in-a-lifetime or once-in-a-generation event and have to come up with a way to respond. It is not acceptable for “perfect storms” to become a regular or even predictable event.

Such a process could take many forms. It could be an opt-in for schools faced with major scandals to deal with the NCAA president rather than the Committee on Infractions. It could be based on the vote of the membership or some representatives of the membership that the normal enforcement process is inadequate or inappropriate. Or it could be something entirely different than what we saw in Indianapolis today.

What it is unlikely to be is the president of the NCAA executing the broad disciplinary authority of an pro sports commissioner on a regular basis. The members of the NCAA have ceded a great deal of autonomy to the organization, but that does not mean they are not still academic institutions who jealously guard that autonomy. The members of the NCAA are unlikely to step completely away from the most serious scandals in college sports simply because giving the president free reign is more convenient.

Precedent only becomes precedent when it is applied the next time. History is littered with seemingly important decisions that faded into history and were never seen again. Until that happens, all the NCAA has done is establish a willingness to explore more options when a university’s conduct goes beyond the NCAA’s existing tools. What remains is when that exploration occurs.

Do you think the penalties for Penn State are appropriate?  Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!

Posted on by John Infante
This entry was posted in Bylaw Blog, Bylaws, College Football, NCAA Penalties. Bookmark the permalink.

14 Responses to How Mark Emmert Punished Penn State

  1. sdbrenda says:

    Unfortunately, the “consent decree” did not require that the Penn State president, Rodney Erickson, consult with the Board of Trustees before signing it. He made the lone decision to sign without discussion, the kind of presidential power which was specifically criticized in the Freeh report. Again the Board is shown as an impotent tool, a facade with no control over the president. The irony is getting a little thick.

    • John Infante says:

      The counter to that is that the chair of the PSU board of trustees was cited as cooperative and agreeing to the penalties, even some members of the board aren’t buying in.

      • PineGrove Mills says:

        That’s not much of a counter. If Erickson wasn’t authorized, then the chair of the board might not have been authorized herslf to approve, either. The NCAA should have made sure that a full board vote was unnecessary (assuming it did not do that). Also, it has been reported that Emmert insisted on secrecy in the negotiation and execution process. If true, that will severely undercut any argument that might be made that the agreement was properly vetted before signing.

  2. Malcolm Kass says:

    Good post, and I agree with most of it. But I don’t like the NCAA being involved in cases like. I guess that is the “precedent” that bothers me. If PSU is the burned to the ground, for matters like this, let the DOE and the US government do it, but the NCAA? For something that only make sense if one prescribes to the most liberal definition of its current rules?

    I would support an NCAA with a more limited scope. That or scrap it and start anew.

    • John Infante says:

      The NCAA has only touched the part of the institution it deals with, namely the athletic department. The Dept. of Education and Dept. of Justice still have plenty to say about the rest of Penn State and what their penalties are going to be.

      I don’t think the interpretation is the “most liberal one.” Penn State’s conduct clearly constitutes improper institutional control. The only issue for interpretation is whether that applies only to NCAA rules or not and there’s a lot of support in the bylaws to say it applies to more.

      • PineGrove Mills says:

        Doubtful that it was ever intended that the NCAA should be able to apply such an amorphous standard. Sounds like more of an “I know it when I see it” argument, which is great if you’re the Supreme Court, but no so good if you’re a trade association.

  3. TB says:

    For all the rhetoric, this changes absolutely nothing about big time football. The cheater schools will continue to cheat, most players at big time programs will continue to never earn degrees, players can continue to drive $60,000 cars and live in $3000-a-month apartments, players’ fathers can continue to auction their sons off to the highest bidder, teams can win national championships by oversigning players and dropping scholarships. In other words, college FB and Basketball can continue to be a cesspool of unenforced rules and general dishonesty. But by God, the NCAA sure stood up to Jerry Sandusky (in prison) and Joe Paterno (dead) and took a courageous stand against child molestation! Bully for them.

  4. educated says:

    Absolutely, not true that the Freeh report was a complete investigation! They never interviewed Curley and Schultz! They are on trial soon…So your statement here is a fraud. “Second, the NCAA was not coming to the case needing to develop facts and
    conduct an investigation. The Freeh report was as comprehensive an
    investigation as anyone could ever reasonably expect the NCAA to have,
    if not more so. To suggest the NCAA must come in and redo the
    investigation would be to suggest that the NCAA must never accept the
    results of a school’s investigation, even one as damaging to the school
    as the Freeh report.”
    The “report” was just one man’s opinions of some of the emails that the university had. Full of assumptions, the one email referred to “Coach” and could have been referring to a number of coaches. Do you know that Freeh was head of the FBI when all the terrorists entered the USA from 1998 through 2001?
    Freeh didn’t even interview or wait until the trial was finished of the 2 major players in the case. Passing this kind of major judgement on assumptions is clearly biased. Why couldn’t they wait to speak with the men who made the decisions? Curley and Shultz?
    Punishing the current players, new staff is out of control. So that means they better monitor every university now and when a retired coach commits a crime go back and erase their records and punish their current students too….

    • FloydRTurbo says:

      “Add to that the need to avoid setting a precedent that would push the
      NCAA into the regular sanctioning of schools for all criminal behavior
      rather than the sort of serious crimes and top-to-bottom cover-up that
      occurred at Penn State.”

      To meet true journalistic standards, this sentence MUST be changed to read:

      “Add to that the need to avoid setting a precedent that would push the
      NCAA into the regular sanctioning of schools for all criminal behavior
      rather than the sort of serious crimes and top-to-bottom cover-up that ALLEGEDLY
      occurred at Penn State.”

      Remember there has been no real process to determine this as fact. The Freeh report is less powerful than the Grand Jury presentment. Freeh only interviewed and quoted “prosecution” witnesses.

      The rest of the article may be good, but I had to stop reading after encountering this irresponsible statement; one that would get a giant red line though it in any Journalism 101 class.

  5. Anne says:

    According to a US Intelligence analyst with 27 years experience (including the 9/11 Commission), the Freeh Report is a forgery. Freeh is being investigated for 10,000 FBI cases when he was director where evidence was mishandled — and Freeh apparently tried to covered it up. Governor Corbett (ex officio member of Penn State Board of Trustees) wanted Freeh to place all blame on Penn State to divert attention from the STATE OF PENNSYLVANIA botching its 1998 investigation and then Corbett’s inaction on the Sandusky case as attorney general in 2008. Corbett enabled a pedophile, and he had Freeh manipulate the “found” emails to make it look like Spanier, Curley, Schultz and Paterno’s fault. Corbett allowed Sandusky to continue his predation of young boys. The Second Mile board members donated $650,000 to Corbett’s gubernatorial campaign, and in return Corbett gave The Second Mile a $3 million grant in summer of 2011, mere months before the Grand Jury Presentment was leaked to the public. The NCAA sanctions are based on a fraudulent document that changed time stamps and removed signature blocks off of emails. The general public has accepted the deception hook, line and sinker.

  6. Scott E Phillips says:

    Can anyone explain why the NCAA had to act so quickly? There is much to learn in the details of this case. I can only guess that Emmert wanted to grab what power and prestige he could, while he could. If the remaining truths of this case start to exonerate Penn State, Emmert will be revealed as a fraud.

    • John Infante says:

      The NCAA felt it had enough information from the Freeh report to punish Penn State. Penn State also accepted that report as the truth. Also remember the different standards of proof. Just because Curley or Schultz might not get convicted does not mean the NCAA would have not found they committed violations.

      • PineGrove Mills says:

        Violations of what?

        The fact of the matter is that it now seems apparent that the NCAA was wrong and it did not have enough information; in fact, it had only half of the story.

        Understood that PSU “accepted” the report and is implemeting changes based on it, but that’s not the question. The question is whether PSU voluntarily accepted that the Freeh report should be used without rebuttal for purposes of waiving PSU’s infractions process rights and for impementing punishment outside of the infractions process.

  7. PineGrove Mills says:

    Why is a special infractions process needed? There already is one, and it could have worked in this case. Indeed, a criminal case such as this would seem to demand greater caution then the NCAA ordinarily uses.

    What authorization did the bylaws give to the members to hold a vote that would authorize a departure from the bylaws’ infractions process? Did PSU agree when it signed the bylaws that if it did something extra-bad that it should not be subject to ordinary infractions process?

    What information did the members have when they took this vote? If just the Freeh report, then were they advised that it was only one side of the story, as now appears to be the case? Was PSU afforded an opportunity to put on a case prior to this vote?

    I know that the PSU Board “accepted” the Freeh report and are implementing its recommendations. . . but did PSU ever voluntarily agree to accept the Freeh report for purposes of the NCAA issuing punishment based solely on the Report?

    It has been widely reported that both Emmert and Remy threatened PSU with the death penalty. If they weren’t authorized to impose it, then what were they doing making such threats?

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