NCAA Must Sanction Presidents Like Spanier, and Re-Examine All Past PSU Filings for Other Jo Pa Lies

—  Gibbon: “Censure… arraigns the public actions and private motives of princes…”

—  Two de facto NCAA enforcement rules: 1) School Presidents and AD’s never commit wrongs – underlings do; and 2) Coaches never lie, players do.

The first of these de facto NCAA rules has been severely tested by PSU’s Graham Spanier.  But this Penn State scandal has made everyone’s moral and legal GPS beep and blink so hard they can’t think straight enough to realize that the NCAA must investigate further, and must sanction PSU. And  Graham Spanier needs public censure by the NCAA.  Let’s look at a few of the misconceptions:

1.  The NCAA not only can, but should investigate, even though  criminal activity is involved.  The many pundits who claim criminal activity is a bar to NCAA action or oversight just haven’t read the bylaws; moreover, they ignore the plain reality that many past NCAA sanctions were imposed concerning criminal actions by players, coaches, or their associates. (As just one example, the OSU Tatt-gate scandal was brought to the attention of OSU by the U.S. Attorney investigating drug usage and sales by the tattoo parlor owner.)

2. NCAA sanctions are not meant solely to “embarrass” the school. This one comes from the normally down-to-earth Bruce Feldman, but nonetheless directly conflicts with reality, which is that many past NCAA sanctions are meant to inflict ongoing damage on the school financially and/or operationally.

3. The NCAA does not have all the information it needs, based on the Freeh report, to act finally to sanction PSU.

a. Upcoming trial testimony could uncover very significant factual background. In fact, the criminal trials of Messrs. Curley and Schultz, which will be held within the next several months, can conceivably bring to light much more evidence about the nature and depth, and breadth of deception, lies, or coverup by those defendants, Joe Paterno, or others. So the factual foundation is incomplete.

b. We need to know more about other Jo Pa lies:  Jo Pa’s façade has been ripped away by Louis Freeh. We know now that Paterno was a committed, serial, bald-faced liar, who criminally lied to the Grand Jury before he died. This fact alone means that the depth of dysfunction at PSU has yet to be fully uncovered, based on an old adage: “fool me once, shame on you; fool me twice, shame on me.”

In other words, PSU, the NCAA and the public must review all of the statements made by Paterno over the years; after all, if he could so brazenly lie by denying for more than a decade the existence of criminal child abuse at PSU, he certainly would be likely to lie about the existence of violations of nuts-and-bolts NCAA bylaws. In other words, nothing Jo Pa said in the past should now be given any presumption of truth. The NCAA, therefore, must undertake its’ own investigation, beyond what Louis Freeh has done, to go back and check on past filings and statements by Paterno. The possibility exists that past NCAA filings by PSU, and/or past NCAA enforcement actions, were submitted or obtained by fraud.

c.  The NCAA needs to further investigate knowledge of Sandusky predations on the part of other Athletics Department or Administrators. Louis Freeh found that “several staff members and football coaches regularly observed Sandusky showering with young boys” before May 1998.  Couple this with Mike McQueary’s now completely overlooked statement before the Grand Jury that, after he made his earth-shattering report to Jo Pa in 2001, he did speak with some of his peers about the events, and you have the clear suggestion that many people within the PSU athletics operation most likely had knowledge of Sandusky’s activities. The NCAA needs to plum the depth of this knowledge through its’ own investigation.

4.  There is a distinction between “Loss of Institutional Control” and “the Death Penalty”. They don’t automatically get paired together.

5.  Loss of Institutional Control, by itself, is grounds for NCAA involvement and punishment. JoAnne Potuto and others claim that LOIC findings must be predicated only on specific bylaw-violating activities relating to sport. This is somewhat like suggesting, for example, that the Coast Guard’s finding, upon random audit/inspection of a Staten Island ferry, that zero lifejackets were on board for the 400 passengers, required no sanction of the ferry operator because no one drowned on that trip.  LOIC is a substantive, profound issue, which has plagued the NCAA for at least 60 years of rampant avarice, ambition and greed in big time sports. And PSU is a sore example of what sinister damage can result when Institutional Control is lacking.

6. Graham Spanier must, at a minimum, be censured by the NCAA.  The recent reputation arc of many putative NCAA heroes has been not just downward, but a fall from a cliff: Jim Tressel; Joe Paterno, Butch Davis – and even the Grand Poobah of NCAA/Administrator/College Presidents, Graham Spanier. All of which confirms that something is REALLY rotten in the way we elevate these false gods to positions of worship. The NCAA needs to punish Spanier, to show other Presidents and Administrators that they must “take responsibility” and “be accountable” for violations of NCAA bylaws.

Everyone conveniently forgets about NCAA Form 11-1, “Certificate of Compliance for Institutions”, which is a form the NCAA requires each university president to annually sign. By signing that form, the school president affirms that

As best [I] can determine, the policies, procedures and practices of [my] institution, staff and representatives are in compliance with NCAA legislation.”

The silk-tie, old-boy NCAA investigation and enforcement system likes to pretend this form doesn’t exist, because using it would lead to making school presidents  “accountable” if things go awry at their university; in contrast, the de facto rule applied by the NCAA is that “Presidents and AD’s do no wrong, underlings always do.”  It’s time for that de facto rule to be thrown out the window. People like Spanier, and other college presidents, need to be worried about the threat of public sanctions.  Spanier needs to be censured by the NCAA for his role in the scandal, which results substantially from his failure to “do his best” to determine and root out evil in his midst. Some of the many examples:

a. In 2004 he lobbied against efforts to initiate institutional reform at PSU, which would’ve given the PSU BOT greater control over Spanier and Paterno. One Trustee during that era specifically has said that “we just knew there wasn’t enough accountability.”

b. He lobbied hard to exempt PSU from the “Sunshine” open-records laws which govern every other public university in the country.

c. PSU did Clery Act training, campus-wide, in 2004, but Spanier — for some unexplained reason, which we might surmise had to do with Spanier’s knowledge that PSU had already illegally coverup criminal acts in violation of that Clery Act —  allowed the Athletic Department to “opt out.

All the above leaves unspoken the lie which undergirds most of the NCAA’s structure, because rational people should now, in this age of billion dollar budgets, presume that every big time College football school “lacks institutional control” as defined by the bylaws. If everyone just admitted that college football is a trade conducted by employee-athletes, and that college football is a profit-making entertainment business near and dear to the hearts and wallets of millions of Americans, then one might be able to see that this college Athletics/Entertainment complex which is the NCAA is not lacking institutional control, but operating a a real live business, making money all along the way. As it should.  If the NCAA would eliminate its’ grand premise that it is non-profit, we could leave all these issues to the criminal and civil courts. Until then, the NCAA must act to further investigate and sanction. School Presidents do commit wrongs, and should be held accountable.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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