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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

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.

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