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College Sports, Division I

Michael L. Buckner Law Firm Response to NCAA Penalties in Penn State Case

On July 23, 2012, the National Collegiate Athletic Association (NCAA) announced sanctions against Pennsylvania State University (Penn State) in response to the sexual-abuse scandal involving former Penn State football coach Jerry Sandusky. The sanctions include: (a) a $60 million fine; (b) a four-year postseason ban; (c) a four-year reduction of grants-in-aid; (d) five years of probation; and (e) vacation of wins in the football program since 1998. Further, the NCAA announced a blanket waiver of transfer rules and grant-in-aid retention for any entering or returning football student-athlete, as well as reserved “the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved”.

[Note: The Michael L. Buckner Law Firm extends its sympathy to the victims in this scandal (who should always be at the forefront of any conversation in this case). The firm believes in the rule of law and, as a result, supports the sanctioning of any organization or individual who commits a crime or engages in misconduct through an established process and by an entity that possesses proper jurisdiction.]

The NCAA’s actions, no matter how noble and justified to address the egregious behavior in the Penn State case, have charted an unprecedented course of action and created a “slippery slope” for future incidents. This statement will provide three areas of concern.

First, the NCAA cited its Executive Committee had the authority to act “on behalf of the entire Association and implements policies to resolve core issues, pursuant to its authority under the NCAA constitution and Bylaw 4.1.2(e)”. This constitutional provision states “the Executive Committee shall. . . Act on behalf of the Association by adopting and implementing policies to resolve core issues and other Association-wide matters”. However, Proposal 2007-12, which amended Constitution 4.1.2-(e) by adding the phrase “adopting and implementing policies” noted “the Executive Committee has authority to act by adopting and implementing policies. … Neither does the amendment expand the Executive Committee’s authority or power.” However, the Michael L. Buckner Law Firm’s review of the Executive Committee’s motion did not adopt and implement a policy to resolve core issues, but directed NCAA president Mark Emmert to address one specific incident (i.e., “to enter into a consent decree” with Penn State that “contains sanctions and corrective measures”). If the Executive Committee properly exercised its authority under Constitution 4.1.2-(e), then a more comprehensive objective policy affecting Penn State and other future instances involving major felonies at other NCAA member institutions would have been developed and passed by the body.

Second, the Executive Committee’s action failed to establish an objective standard to determine when the NCAA president can circumvent the established enforcement process. In the past 20 years, employees and student-athletes have engaged in, been convicted of, or charged with serious criminal misconduct. However, the NCAA did not intercede in such matters and, in some instances, deferred to the expert judgments of judicial proceedings and government investigations. After today’s decision, the NCAA membership does not know what behavior or conduct will trigger the newly-awarded discretionary authority of the NCAA president to issue punitive sanctions.

Third, the conduct of Penn State and its employees, no matter how egregious, is not a violation of an existing NCAA rule. The NCAA has never interpreted, or issued sanctions under, the rules it cited to address only criminal violations (or the cover-up of criminal violations). In fact, until today, the activities described in the report by former FBI director Louis J. Freeh are not addressed in the NCAA Division I Manual.

As legal counsel for colleges and universities before NCAA committees, we are extremely concerned about the process the NCAA utilized to issue its sanctions. We urge the NCAA to comply with its existing processes and procedures in future scandals involving alleged criminal misconduct. For example, after a review of the Freeh report in the Penn State sexual-abuse case, we conclude the issues the institution would be best left in the expert hands of the criminal and civil courts, the federal Departments of Justice and Education, the Pennsylvania General Assembly and the relevant accrediting agencies.

About Michael L. Buckner, Esquire

An attorney who provides clients with internal investigation, compliance, professional development and legal services.

Discussion

18 thoughts on “Michael L. Buckner Law Firm Response to NCAA Penalties in Penn State Case

  1. excellent analysis

    Posted by Biff Loman | July 23, 2012, 5:14 pm
  2. Excellent work. While I am no expert in NCAA matters, I have read the Freeh report and saw no mention of football or any NCAA rules violations. I am convinced the NCAA acted out of turn on this. It’s nice to know that people familiar with NCAA rules feel the same way.

    Posted by Andrew | July 23, 2012, 5:42 pm
  3. sadly, the power in this matter rests with the wrongdoer, the BOT

    Posted by jonathan | July 23, 2012, 6:22 pm
  4. What about Article 2 Section 4 and Article 10 of the Division 1 NCAA Constitution and Bylaws?

    Specifically 2.4, 10.01.1, and 10.1?

    And more specifically the following in 2.4 makes it abundantly clear that the rules were broken in a pretty substantial way:

    “For intercollegiate athletics[...] to promote civility in society [...] coaches [...] should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility. These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program”

    I am not an attorney, but doesn’t this qualify as unethical conduct?

    Posted by Justin Cred | July 23, 2012, 8:09 pm
    • His point is there have been numerous instances in the past when the NCAA could have invoked Article 2 Section 4 for “unethical conduct” and chose not to do so. Why start in this case? Was an unseen threshhold crossed over? If it was, is that threshhold mentioned in the Constitution and Bylaws? I think you know the answer is, it is not. Hence the failure to follow due process.

      Posted by Chris | July 23, 2012, 9:39 pm
      • I was replying to this portion of his posting “Third, the conduct of Penn State and its employees, no matter how egregious, is not a violation of an existing NCAA rule.”

        Posted by Justin Cred | July 23, 2012, 9:51 pm
  5. Once again, the football players have lost their wins & creditabllity because of the actions of higher ups. Will tution be raised on students to pay this $60 million dollar fine? Whatoccured was done by the “big guys” in charge not the players or students but they are the ones being punish while the “big guys ” pocket all the money for their discretions when it’s them who should be brought up on criminal charges & made to pay the $60 million fine

    Posted by T hassall | July 24, 2012, 12:06 pm
  6. Mr. Buckner, I’m wondering what your analysis be regarding whether the PSU current student-athletes would have standing to sue the NCAA, since PSU itself obviously does not intend to sue, having signed the consent decree? Could such a suit withstand summary judgment, or would privity between the NCAA and the student-athletes constitute a problem?

    Posted by Deb | July 24, 2012, 2:45 pm
  7. As far as how it affected penn states on the field performance, i’m sure a few less recruits would have come to penn state whenever the truth came to light.
    But they did break laws that have resulted in a tremendous cost to the NCAA in bad publicity.
    Why can’t the NCAA access the liability penn state has, force them to donate money to charity to pay back face value and contain the phrase “penn state football” to the civil courts and not espn till this ugliness is farther in the past?

    Posted by harry | July 24, 2012, 7:31 pm
  8. I agree with the post. The NCAA is completely hypocritical in its dishing out of justice. Where is the $60 million dollar fine and 4 year postseason ban for Syracuse for a near identical situation involving their basketball team???

    Posted by Mark | July 24, 2012, 10:26 pm
    • Mark Emmert is an alum of Syracuse, so I wouldn’t hold my breath if I were you.

      Posted by Mike | July 25, 2012, 1:20 am
      • Well that explains a lot, doesn’t it (LOL)? Completely agree with your post.

        BTW, to anyone out there, the fact that scholarships are being reduced for football, does that effect the women’s teams under Title IX? Just curious.

        Posted by Mark | July 25, 2012, 12:49 pm
    • I think to compare the Penn State situation to the Syracuse situation is a big stretch. With PSU, there are criminal convictions of a former football coach who used the football program and its facilities to commit criminal activity. There is a report that provides evidence that the folks in charged actually planned to do the right thing and then changed their mind after a chat between the AD and the football coach. There is also other evidence that a former higher-up at the university in charge of student discipline was interfered with by the football coach (and others) when she attempted to enforce the same discipline on student-athletes that she would upon other students.

      With the Syracuse situation, there are accusations but there is little in the way of evidence (as far as I know). Syracuse did perform an investigation when accusations were previously brought to light (they probably should have done more but they did investigate).

      The situation is not “near identical.” Not even close.

      Posted by mdak06 | July 26, 2012, 7:45 pm
  9. Please help spread the word and right the wrong that has been done to 14 classes of student athletes who embodied the ideal of Success With Honor. They were in no way complicit in this horrific case and shouldn’t have their accomplishments tarnished…

    http://www.change.org/petitions/tell-the-ncaa-to-restore-penn-state-football-s-111-victories

    Posted by Jeff Christian | July 26, 2012, 1:38 pm
  10. It appears that the NCAA’s quick action was taken to get ahead of any decision in the Tim Cohane case that is hopefully going to court this summer. The NCAA’s demand that Penn State waive any claim to further process, any appeal under NCAA rules and any judiicial process related to the subject of the Consent Decree has placed the NCAA on a slippery slope if the Federal Court finds the NCAA to be a state actor and subject to federal due process requirements. Even if the Federal Court does not find the NCAA to be a State actor, there appears that there is nothing to prevent the State of Pennsylvania and other parties with standing to make a new claim, based on the facts of the Penn State case.

    I think the NCAA issued the fine because of the belief that under the State’s Tort Claims Act the University and officers could claim immunity; claim that the boys were trespassers and not entitled to any claim; the maximum recoverable is inadequate, $500,000; and barred by the 6 month statute of limitations for claims.

    I believe that if things go as hoped in the Cohane case, the NCAA and Mr. Mark Emmert may have there day in court.

    P.S., check out the blogs regarding comments about Mr. Emmert while at Syracuse. Probably not true, but who knows, since it was a comment on a blog about the 2001 incident that led the football program to being punished.

    Posted by Dennis | July 28, 2012, 10:37 pm

Trackbacks/Pingbacks

  1. Pingback: NCAA Denies Paterno Family’s Appeal Request: Due and Fair Process « Michael L. Buckner Law Firm - August 6, 2012

  2. Pingback: ESPN States Penn State Expected to Ratify Sanctions « Michael L. Buckner Law Firm - August 10, 2012

  3. Pingback: Michael L. Buckner Law Firm Weekly NCAA Compliance and Enforcement Round-Up « Michael L. Buckner Law Firm - August 31, 2012

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