As the layers of the tragedy at Penn State get pulled back more with each passing day, people keep trying to turn a legal issue into a football one. On the night Jerry Sandusky was convicted, some called for the Death Penalty. Not for Sandusky -- for whom a quick, painless death is far too lenient -- but for Penn State's football program. When CNN obtained e-mails June 29 from the administrators who teamed with coach Joe Paterno to either cover up or ignore an accusation that would have led to Sandusky's arrest in 2001, people wanted jail time for the men involved and an NCAA hammer for the football program.
To use a term the NCAA coined, how can this not represent a Lack of Institutional Control? Because it doesn't -- at least not in the NCAA sense. It is a case of a university having too much control. It is a case of a massive abuse of power with horrific consequences, and the perpetrators of that abuse of power deserve jail time. It is not a case of broken NCAA bylaws, though.
There is a reason the IRS doesn't punish murderers who pay their taxes. That same reason applies here.
This may seem cold, but nowhere in the 426-page Division I manual is there a rule forbidding the cover-up of a violation of state statute. There is no obstruction of justice charge, no way to punish someone for his or her failure to call the police. The NCAA has rules to handle free tattoos, excessive phone calls and couch surfing (maybe not even that), but it is way out of its league here. So even though NCAA president Mark Emmert inserted the organization into the case with one of the most misguided missives ever to emerge from NCAA headquarters,* please stop suggesting the NCAA needs to crush Penn State's football program because of the Sandusky tragedy. It may make a bunch of rival fans feel better if a bunch of players who were in elementary school in 2001 suffer, but it won't solve anything. It won't help anyone heal. It won't send any message that matters.
* Here is how these things work. Something awful such as the Sandusky case happens, and people at powerful organizations such as the NCAA feel they have to say something. This is partially the fault of people in my business who constantly call for comment and partially the fault of the people inside NCAA headquarters who failed to realize that they needed to butt out of this issue in the absence of actual NCAA violations.
The messages that matter will come from the juries who convict and the judges who sentence. If former Penn State athletic director Tim Curley and former vice president Gary Schultz are convicted of perjury, then hopefully they'll get thrown in the general population of a state prison and forced to wear signs around their necks advertising that they helped a child molester. If former president Graham Spanier is found to have helped the cover-up, then hopefully he'll be charged appropriately, convicted and mistreated in a similar manner while in prison. (I'm aware part of this is unconstitutional. So they probably shouldn't do that part. Still, a relatively comfortable imprisonment is better than what someone who would do these things deserves.)
When arguing with NCAA Death Penalty advocates on Twitter, a common refrain from them is that if the NCAA doesn't punish Penn State's football program, no one will learn the proper lesson from this case. Canceling football games and revoking scholarships will do nothing to teach the necessary lesson -- which is that if a man doesn't exercise human decency and do the right thing to protect those who can't protect themselves, then he'll be fired and could go to jail.
As for Paterno, he is gone. Some seem to think the e-mails leaked to CNN exposed something, but anyone with common sense and a rudimentary knowledge of how a major college football program works wasn't surprised. Besides, little that emerges from this point forward will change anyone's opinion of the man. There will forever be two camps with few people in between. If Penn Staters want a statue on their campus of a man who won a lot of football games, graduated a lot of players, raised a lot of money and -- either through his action or his inaction -- helped a child rapist keep operating, that is their prerogative.
Those in favor of an NCAA attack on Penn State believe this only happened because of the football program. Did the men act to protect the football program? Yes, but only because they either worked for it or were closely aligned with it. This was about self-preservation. Had they gone to the authorities, this would have been a major scandal in 2001. Curley almost certainly would have been gone for signing off on any plan that allowed Sandusky access to the facilities. Paterno, coming off a 5-7 season in 2000 and hearing calls for his retirement, could have lost his job as well. They weren't protecting the program. They were protecting themselves.
Think of it this way: If Sandusky was a recently retired surgeon, Paterno was the chief of surgery and Curley was the dean of Penn State's College of Medicine, would you be asking the Liaison Committee on Medical Education to make it impossible for Penn State to continue training physicians 11 years after the fact? Of course you wouldn't.
Nothing meaningful will be learned if the NCAA crushes Penn State's football program despite a lack of evidence that any NCAA rules were actually broken. This could change if Judge Louis Freeh's investigation turns up evidence of actual NCAA violations. If the Freeh Report contains evidence of academic fraud to keep athletes eligible or any other chicanery banned in the NCAA's manual, then the NCAA will have jurisdiction. Failing that, all the NCAA could do is commit a massive abuse of power -- which is exactly the same thing that got Penn State in trouble in the first place.
The NCAA's own rules seem to forbid it from applying the Death Penalty in this case. The Death Penalty consists of several major elements: a one- or two-year ban on outside competition and a two-year ban on new scholarships and recruiting. But, according to NCAA rules, the Death Penalty can only be applied to a school that has "Repeat Violator" status. To achieve that status, a school must have been convicted of a major violation in the five years preceding the current violation. Penn State had no such violation. That might not matter, though.
Even without Repeat Violator status, the NCAA has the latitude to apply penalties that would mimic the Death Penalty and effectively cripple Penn State's football program. John Infante, the author of the excellent Bylaw Blog, explained that any major violation that reflects a lack of institutional control would allow the NCAA to issue a one-year ban on outside competition. Infante added that the NCAA's Committee on Infractions also could impose scholarship sanctions. If the committee chose, it could wipe out an entire recruiting class.
What rule would the NCAA claim Penn State broke? Ohio State fans should be intimately familiar with Bylaw 10.1, which forbids Unethical Conduct. The NCAA manual includes a list of circumstances in which 10.1 would apply, but makes sure to leave it open-ended by using the phrase "may include, but is not limited to." This bylaw is the NCAA's catch-all, and it usually is used to hammer coaches or administrators who lie to NCAA investigators. Conceivably, the NCAA could tag former athletic department employees Paterno, Curley and Mike McQueary with violations of Bylaw 10.1 for their failure to act after McQueary said he witnessed Sandusky raping a boy in a shower. (Cumulatively, these violations could draw the Lack of Institutional Control charge.) I studied 177 cases involving violations of 10.1 last year for a column about Jim Tressel, and every one of those 10.1 violations was attached to another violation of an existing NCAA rule. To apply it without attaching it to another violation would also be an extraordinary precedent.
An extraordinarily dangerous precedent.
If the schools that run the NCAA alter their own rules for an ex post facto smashing of Penn State, they would essentially empower the NCAA for all sorts of retroactive enforcement. How would Oregon feel if the NCAA could rewrite the rulebook after the fact to ban payments to street agents? Oregon has mounted a defense of its $25,000 payment in 2010 to bogus recruiting service operator Will Lyles, and the program just might get away with it without suffering dire consequences. Existing NCAA rules manage dealings with boosters, but they say little about handlers. Given the power to juke the rules, the NCAA could say it always meant to outlaw payments to handlers. Since Oregon paid Lyles by check, it wouldn't have any defense. You may consider that justice in the Oregon case, but it would be patently un-American justice. The framers of the U.S. Constitution didn't even wait until the Bill of Rights to ban ex post facto laws, which would allow the government to punish someone for an act that was legal when the person committed it. That ban applies only to the justice system and not private entities such as the NCAA, but most private entities respect the concept because it is one of our nation's core principles.
Besides, Penn State may have bigger problems. While this case doesn't fall under the jurisdiction of the NCAA, it does fall under the jurisdiction of the U.S. Department of Education. A Department of Education investigation that results in a termination of Penn State's accreditation would essentially amount to the Death Penalty for the entire university. Given the fact that such a punishment would put thousands of people out of work, Penn State might fall into the "too big to fail" category. Still, the possibility must fray the nerves of the thousands in State College who had nothing to do with this atrocity.
Unless Freeh's inquiry turns up actual violations of NCAA bylaws, Penn Staters should not have to worry about the NCAA destroying their football team. That doesn't help anyone. Hopefully, the people involved in the cover-up at Penn State will pay dearly. Hopefully, that will send the necessary message that protecting children always outweighs professional concerns. Given the weight of the other aspects of this case, tearing down the football program would just be petty.