As a human being affiliated with Penn State, I feel all the sadness and anger that everyone else has felt since the exposure of the failure to intervene to protect young boys from former assistant football coach Jerry Sandusky.
As a specialist in sports law, I find it is somewhat of an out-of-body experience to objectively analyze the legal issues arising from the scandal.
The recent federal lawsuit filed by Gov. Tom Corbett against the NCAA to have all of Penn State’s sanctions lifted, is no exception.
Penn State President Rodney Erickson accepted the sanctions, which included a $60 million fine, scholarship reductions, 112 vacated wins and four-year bowl game ban, because the NCAA threatened to give the Penn State football program the death penalty.
It is too early for this expert to analyze the many antitrust issues raised by Corbett’s novel complaint.
Typically, antitrust laws prevent the defendant —in this case the NCAA — from ganging up to disadvantage any party — in this case Penn State. Corbett alleges that the NCAA, which is suffering from diminished popularity because of various hypocritical acts and misdeeds, has sought to improve its image at Penn State’s expense.
Only after the lawyers brief the case can we analyze exactly what Corbett’s antitrust theory is this situation. If the lawsuit simply forces the NCAA to explain itself, then it would beneficial. But it is not clear why federal antitrust litigation is the best vehicle to learn the information.
Why not simply hold a legislative investigation and subpoena top NCAA officials?
Antitrust complaints do not have to be filed by someone with “clean hands.” In fact, disaffected members of price-fixing cartels have been known to sue their former conspirators. In this case, Corbett’s role in filing the lawsuit does raise some questions. The complaint speaks of Penn State’s vital importance to the economy of Pennsylvania, but Corbett has constantly tried to undercut public support for the state’s flagship university.
I do share Corbett’s outrage that the NCAA strong-armed a “guilty plea” from Erickson when the legal case to impose any sanctions, much less the death penalty, on Penn State’s football program was fairly weak.
It’s important to recall in considering the general issue of “institutional control” that, scandal aside, Penn State remains a leader in financial prudency, graduation rates for student-athletes, minimal recruiting violations, stable coaching staffs and everything else the NCAA claims to value.
Unlike me, Corbett is a former prosecutor, and there are likely countless individuals currently behind bars for pleading guilty when faced with the threat of heavy sentencing, which is the method the NCAA used to pressure Erickson — this tactic is commonplace among prosecutors.
As a matter of NCAA law, Corbett is correct that the Penn State sanctions for lack of “institutional control,” without violations of any specific NCAA rules, is unprecedented. Contrary to sentiments in (un)Happy Valley, it actually could be a good precedent if the NCAA starts attacking practices at other schools that violate ethical principles, without violating specific rules.
It is too soon to tell if this event propels genuine NCAA leadership, or rather, like the Supreme Court’s partisan decision in Bush v. Gore in 2000, it is just an abusive one-off, with the only disturbing justification that the ends justify the means.
Who is really being punished by the NCAA’s punitive overreaching?
For one, all of us in Nittany Nation are not guaranteed bowl trips — we are entitled to 7 afternoons of pre-game parties with friends and glorious football, cheering on those who play for those who came before them. The players who are deprived of bowl game trips still receive a great education and the elite receive outstanding training from well-qualified coaches to advance professional careers.
The real problem with the NCAA order is that it requires Penn State to maintain its huge menu of non-revenue sports, so that general university funds that could go to hire more professors or teaching assistants will have to support the athletic budget. Requiring that ordinary students be harmed because of the misdeeds of Penn State officials is the real hypocrisy. That is not a matter for litigation but for moral outrage.
Stephen Ross is a professor of law and director of the Institute for Sports Law, Policy and Research at Penn State and is The Daily Collegian’s guest columnist. Email him at sfr10@psu.edu.
