NCAA's Penn State Sanctions are Disproportionate, Unfair and Hypocritical

"The sanctions announced by the NCAA today defame the legacy and contributions of a great coach and educator without any input from our family or those who knew him best. That the President, the Athletic Director and the Board of Trustees accepted this unprecedented action by the NCAA without requiring a full due process hearing before the Committee on Infractions is an abdication of their responsibilities and a breach of their fiduciary duties to the University and the 500,000 alumni."--Paterno family statement

Jerry Sandusky's sex abuse crimes are abhorrent and he deserves the severest possible penalty under the law--but even he deserved and received due process and his day in court. Sandusky received justice but his case has now shifted into a witch hunt that appears to be designed to consume and destroy the reputation and legacy of Joe Paterno. Paterno is an easy target because he is deceased and thus not able to defend himself and his actions/alleged actions. Although a Pennsylvania grand jury declined to charge Paterno and there is no direct evidence that Paterno knowingly covered up Sandusky's crimes, Paterno's name is being smeared based on the words "reasonable to conclude": the Freeh Report interviewed hundreds of people and reviewed over three million documents but failed to find a single proverbial "smoking gun" implicating Paterno. Instead, the Freeh Report engaged in some form of literary interpretation and determined that it would be, in Freeh's repeatedly stated words, "reasonable to conclude" that Paterno actively sought to cover up Sandusky's crimes--even dating back to a time when law enforcement authorities had investigated Sandusky and been unable to prove that Sandusky had in fact committed any crimes.

The accusations against Paterno simply do not make much sense; why would Paterno report Mike McQueary's allegations about Sandusky to Tim Curley and Gary Schultz if Paterno's primary motivation was to cover things up at all costs? Paterno has a well documented history of suspending players for even minor infractions and for emphasizing academics/integrity over wins. Paterno did not cover up or whitewash small, technical NCAA violations so why would he actively cover up heinous crimes? Paterno said that in retrospect he wishes that he had done more; it is reasonable to suggest that Paterno should have taken a more active role to ensure that his superiors properly handled the Sandusky matter but it is more than a bit of a reach to assert that Paterno deliberately covered up child sex abuse just so that he could win more football games.

Would you want the sum total worth of your life to be defined by what other people think is "reasonable to conclude" based on reading emails that you did not write and that were composed by people who currently are facing charges of perjury (former Penn State administrators Gary Schultz and Tim Curley)? There certainly appears to be plenty of direct evidence to implicate those two individuals; at the very least, decisions permanently affecting Paterno's legacy and status should wait until the Curley and Schultz trials hopefully shed more light on what exactly Paterno did and did not do.

The NCAA sanctions against Penn State are unprecedented. The NCAA fined Penn State $60 million, with those funds to be dedicated to an endowment to help child abuse victims. That is certainly a worthy endeavor, although it is not clear how it was decided what amount the fine should be or who specifically will bear that cost; if money is being taken away from the education of innocent Penn State students (as opposed to be taken away from people who actually committed crimes) then that is not right no matter how noble the cause is.

The NCAA also banned the Penn State football program from postseason play for four years, enforced scholarship reductions lasting for four years and placed the athletic department on probation for five years. Perhaps the most stunning decision is that the NCAA vacated 112 Penn State wins from 1998-2011, 111 of which had been credited to Paterno's personal record. The cumulative effect of these NCAA punishments hurts Paterno, his former players and current/future Penn State players but it does nothing to punish the men responsible for the actual crimes: Sandusky (whose fate correctly lies in the hands of the justice system), Curley and Schultz. Also left unscathed is former Penn State President Graham Spanier, who was heavily criticized in the Freeh Report but has not been charged with a crime and has vehemently denied that he knew about and covered up Sandusky's crimes.

The NCAA claims that it is acting so harshly against Penn State to make a statement proving that collegiate sports should never be elevated over academics and should not become "too big to fail" in the words of NCAA President Mark Emmert. Are we really supposed to believe that Penn State and Penn State alone stood for the worst of what college sports represents? Jerry Sandusky was a serial child sexual predator who manipulated and deceived his family, the people at the Second Mile charity and others around him but his crimes do not represent the totality of what Penn State stood for during Paterno's era; Paterno guided many players who became productive members of society and his teams were consistently successful on the field without committing violations off of the field. Instead of self-righteously singling out Penn State the NCAA should take down the entire bloated system that has essentially transformed college sports into minor leagues for football and basketball in which all of the profits go to the NCAA, the athletic departments and the coaches while the players are not paid anything other than scholarships. Why should college football and basketball coaches be the highest paid state employees in any state? Paterno ran his program with more integrity than just about anyone else--based on the documented record, not based on what someone decides it is "reasonable to conclude"--but if the NCAA feels that big time college sports are somehow inherently corrupt (which is certainly "reasonable to conclude" at this point) then Emmert and his cohorts should refund all of the television and sponsorship money that they receive and let some other organization take over minor league football and minor league basketball in this country while the NCAA sets up a new structure in which college sports consists entirely of intramural games that are not sources of billions of dollars in revenue.

The NCAA is a self-appointed judge, jury and executioner--but who judges the NCAA? The NCAA has a huge book filled with Byzantine rules that it enforces or fails to enforce solely at its own discretion, with no outside oversight. Big name programs like Miami (the infamous "U"), Oklahoma, Nebraska and others had endemic problems/crimes/violations yet their wins and championships have not been vacated; to cite just one example, Nebraska's sainted Coach Tom Osborne kept Lawrence Phillips on the team despite the fact that Phillips assaulted his girlfriend. Phillips ultimately played a major role when Nebraska won the 1995 national championship. Phillips has since faced numerous criminal charges and is currently serving a term of at least 26 years in prison for committing various assaults. Did Osborne, Nebraska and the NCAA ultimately do right by Phillips--coddling him instead of insisting that he be punished for his crimes and possibly get help for his anger issues--and his victims? Perhaps you say that Phillips' numerous assault cases are not as bad as Sandusky's child abuse crimes; well, what about murder? Is murder worse? In 2003, Baylor basketball player Carlton Dotson murdered his teammate Patrick Dennehy; the ensuing criminal and NCAA investigations turned up a host of crimes and NCAA violations committed by Coach Dave Bliss and other members of the coaching staff/athletic department. NCAA history is full of murder, mayhem, point shaving, academic fraud and grown men lining their pockets while taking advantage of the athletic talents of the young men in their charge, young men who often do not receive much academic, moral or social instruction during their college days.

The NCAA's swift and unprecedented action against Penn State and against Paterno's coaching record is not about justice or morality. This is really about two things: (1) public relations and (2) taking preemptive action to prevent lawsuits against the NCAA. The NCAA is a greedy and inherently corrupt organization that is more concerned about preserving its revenue streams than anything else.

Not only is the NCAA acting with breathtaking hypocrisy, it is doubtful that the NCAA's actions are legal. ESPN's Jay Bilas, a former Duke basketball player who is also a practicing attorney, says that the NCAA's actions set a precedent that the NCAA is "willing to violate its own rules and act without going through the normal course." Florida-based attorney Michael Buckner goes even further, telling ESPN's Mike Fish that what the NCAA did is "perhaps unconstitutional." Fish reports that Iowa attorney Jerry Crawford says that the NCAA made a "rush to judgment.'' Crawford adds, "I don't know any reason for the NCAA to feel they needed to rush in other than they were getting bullied in the court of public opinion, which they obviously didn't like. What I believe I know is Joe Paterno ran an NCAA sanction[ed] football program that didn't just play within the rules, but played well within the rules. Recruited good people. Got them educations. I thought it was a program the country needed to emulate, not ostracize.''

In Christopher Nolan's recently concluded Batman film trilogy, Batman takes the fall for Harvey Dent (the maniacal "Two Face") so that Dent can be viewed by Gotham's citizens as a hero and as a symbol for justice--but propagating that lie turned out to be very costly for all involved. Jerry Sandusky must be punished for his crimes and anyone who knowingly covered up his crimes should also be punished--but making Joe Paterno and the entire Penn State football program take the fall to supposedly prove the integrity of the NCAA is as bold a lie as saying that Batman is a criminal while Harvey Dent is a hero. Such lies always have dreadful consequences.

Freeh Report Condemns Penn State's Handling of Sandusky Case

The Freeh Report about the Jerry Sandusky child abuse case unilaterally condemns the university--including President Graham Spanier, top ranking officials Gary Schultz and Tim Curley, the Board of Trustees and football coach Joe Paterno--for completely failing to handle the matter appropriately and indeed covering up Sandusky's crimes instead of following federal laws requiring the reporting of accusations against Sandusky. The press release announcing the findings of the Freeh Report includes this statement that will likely forever alter how Penn State and Coach Paterno are viewed:

Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky’s child victims by the most senior leaders at Penn State. The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized. Messrs. Spanier, Schultz, Paterno and Curley never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky’s victims until after Sandusky's arrest.

When the information about the Sandusky case initially became publicly known last November and the Penn State Board of Trustees reacted swiftly by firing Coach Paterno without even meeting with him, I felt that Paterno was being made into a scapegoat for others' failures. Obviously, if it is true that Paterno clearly knew about Sandusky's criminal actions and participated in a cover-up--as the Freeh Report alleges--then it was correct to fire Paterno. Unfortunately, Paterno became ill and passed away before Freeh's investigators could interview him--and Freeh himself said that he believed that Paterno intended to fully cooperate with the investigation if his health had permitted him to do so. Freeh and his associates reviewed over 3 million documents/emails and conducted more than 430 interviews but--while it is easily confirmed that Spanier, Curley and Schultz directly acted to conceal evidence of Sandusky's crimes--it seems that the main evidence against Paterno is circumstantial: Freeh interpreted the contents of various emails to mean that Paterno had urged Penn State officials--Paterno's superiors, it must be emphasized--to handle the Sandusky matter internally instead of reporting it to outside authorities. Even if that is true--and there is no "smoking gun" that confirms this interpretation of events--the Penn State President and the university's other leaders had a legal and moral obligation to report the allegations about Sandusky to the proper authorities. The idea that Paterno was more concerned about bad publicity than doing the right thing is belied by the high standards that Paterno set for himself and his football program for several decades. In retrospect it is clear that Paterno should have taken a more active role in addressing the Sandusky allegations--Paterno himself expressed regret that he had not done more--but I still find it hard to believe that Paterno knowingly and deliberately covered up child abuse merely to avoid bad publicity for his football program.

Whether Paterno passively let matters take their course or took an active role in Penn State's deplorable handling of the Sandusky case, this is a sad day not just in college football history but in the history of American sports. If Paterno's "Grand Experiment" is in fact tainted then what hope is there for the future of amateur athletics as a positive force in our society? The influx of big money into amateur athletics has perhaps had an irredeemably corrupting influence; that statement is not meant to justify anything that Paterno failed to do but rather to indicate that if even someone who--over the course of several decades--proved himself to be a fundamentally decent and morally upright person could not stay on the right path then perhaps the entire culture of amateur athletics is inherently corrupt. It is simply inexcusable for the football coach to be the most powerful figure on any college campus--and it is indisputable that this is the case, in practice if not in theory, on many, many college campuses.

Here is a statement from the Paterno family regarding the Freeh Report:

We are in the process of reviewing the Freeh report and will need some time before we can comment in depth on its findings and conclusions. From the moment this crisis broke, Joe Paterno supported a comprehensive, fair investigation. He always believed, as we do, that the full truth should be uncovered.

From what we have been able to assess at this time, it appears that after reviewing 3 million documents and conducting more than 400 interviews, the underlying facts as summarized in the report are almost entirely consistent with what we understood them to be. The 1998 incident was reported to law enforcement and investigated. Joe Paterno reported what he was told about the 2001 incident to Penn State authorities and he believed it would be fully investigated. The investigation also confirmed that Sandusky's retirement in 1999 was unrelated to these events.

One great risk in this situation is a replaying of events from the last 15 years or so in a way that makes it look obvious what everyone must have known and should have done. The idea that any sane, responsible adult would knowingly cover up for a child predator is impossible to accept. The far more realistic conclusion is that many people didn't fully understand what was happening and underestimated or misinterpreted events. Sandusky was a great deceiver. He fooled everyone--law enforcement, his family, coaches, players, neighbors, university officials, and everyone at Second Mile.

Joe Paterno wasn't perfect. He made mistakes and he regretted them. He is still the only leader to step forward and say that with the benefit of hindsight he wished he had done more. To think, however, that he would have protected Jerry Sandusky to avoid bad publicity is simply not realistic. If Joe Paterno had understood what Sandusky was, a fear of bad publicity would not have factored into his actions.

We appreciate the effort that was put into this investigation. The issue we have with some of the conclusions is that they represent a judgment on motives and intentions and we think this is impossible. We have said from the beginning that Joe Paterno did not know Jerry Sandusky was a child predator. Moreover, Joe Paterno never interfered with any investigation. He immediately and accurately reported the incident he was told about in 2001.

It can be argued that Joe Paterno should have gone further. He should have pushed his superiors to see that they were doing their jobs. We accept this criticism. At the same time, Joe Paterno and everyone else knew that Sandusky had been repeatedly investigated by authorities who approved his multiple adoptions and foster children. Joe Paterno mistakenly believed that investigators, law enforcement officials, university leaders and others would properly and fully investigate any issue and proceed as the facts dictated.

This didn't happen and everyone shares the responsibility.

Members of Penn State's Board Attempt to Justify Abrupt Paterno Firing

There has been mounting criticism of the manner and swiftness with which the Penn State Board of Trustees fired Coach Joe Paterno, so 13 of the 32 members of that Board spoke with The New York Times to try to justify their actions. It has almost been an afterthought that prior to firing Paterno the Board also fired Penn State President Graham Spanier but it should be abundantly clear why that decision was not in any way controversial: Spanier kept the Board largely uninformed about the grand jury investigation of former Penn State assistant coach Jerry Sandusky for multiple charges of child abuse and then when the story became public Spanier immediately issued a statement defending Athletic Director Tim Curley and one of the school's former Vice Presidents, Gary Schultz; the grand jury charged Curley and Schultz with failing to report Sandusky's alleged crimes to the authorities and with committing perjury when testifying to the grand jury.

Whether or not Spanier, Curley and Schultz are criminally guilty, it is obvious that Penn State should want to sever ties with those men. However, the grand jury found Joe Paterno's testimony to be credible and the grand jury concluded that Paterno fulfilled his responsibilities by informing Curley and Schultz--who was then in charge of, among other things, Penn State's campus police--about what Mike McQueary had told him regarding Sandusky's suspicious conduct with a young boy in the Penn State locker room shower area. McQueary did not explicitly tell Paterno that Sandusky had committed sexual assault and thus Paterno understandably turned the matter over to his superiors with the expectation that they would take whatever action was appropriate and necessary. The fact that Curley and Schultz failed to do so is why the grand jury indicted both men.

Paterno has a sterling record not just as a field general but also as a contributor--both in the literal sense of financial contributions and also in the sense of the standards he set for his players--to the Penn State community. Scientists often say that extraordinary theoretical claims require extraordinary proof; that kind of standard should have been applied when the Board of Trustees met to decide Paterno's fate: firing Paterno would place a large taint on his good name and such a decision should not be taken lightly or made hastily. The 2011 football season was almost over and it was pretty obvious that Paterno's physical condition would not permit him to coach the team much longer. Rather than publicly disgracing a man who had served so well for so long, the Board could have and should have permitted Paterno to finish out the season before retiring. Instead, the Board took the quick and easy path, dismissing Paterno with a dismissive phone call; the Board members were too cowardly to even deliver the news face to face.

It is easy for people to say that if they had been in Paterno's shoes they would have handled the situation better. For instance, several ESPN employees made that assertion on the air but their commentaries ring hollow in light of the fact that ESPN and other media outlets suppressed for nearly a decade an audio tape Bernie Fine accuser Bobby Davis made of Fine's wife admitting knowledge of Fine's homosexual/pedophilic proclivities and activities. Unlike ESPN, Paterno did not cover up anything; McQueary made a vague report of alleged improprieties to Paterno and Paterno immediately informed his superiors about what McQueary had said. Sandusky was not a member of Paterno's coaching staff at that time and there really is nothing more that Paterno could have or should have done. On what basis could Paterno have gone to the police based on what he knew? It was up to Curley and Schultz to investigate the situation and decide upon an appropriate course of action. Perhaps Paterno should have followed up with Curley and Schultz to find out what they did but I suspect that Paterno had a great degree of misplaced trust that those men would handle things the right way.

The Penn State Board of Trustees was asleep at the switch for a long time and when the Sandusky charges woke them up they decided to make Paterno a high profile scapegoat for their own inadequacies and for the allegedly criminal conduct of two men (Curley and Schultz) employed by their university.

**********

Further Reading:

Cowardly Lions: Penn State Acted Slowly on Sandusky Allegations but Swiftly Made Paterno a Scapegoat (November 10, 2011)

Christine Flowers Blasts Penn State for Hastily Firing Joe Paterno (November 11, 2011)

Joe Posnanski Criticizes the Media's Coverage of the Sandusky Scandal (November 11, 2011)