Can’t lose what you never had.

Yes, the Paterno family is borderline delusional for believing they had standing to appeal the Penn State sanctions, but the rationale the NCAA pointed to in its backhand to the Paternos should make you take pause.

The NCAA quickly acted saying, “The Penn State sanctions are not subject to appeal.” That sentence appeared in the Twitter account of Bob Williams, NCAA vice president of communications…

In essence, there can be no appeal because there was no formal investigation. [Emphasis added.] The NCAA board and executive committee, along with president Mark Emmert, acted alone in the case.

I’ll say it again:  if you’re the president or chancellor an institution that counts itself among the NCAA membership, you’d be a certified fool to agree to any investigation of your athletic department that didn’t include direct NCAA involvement.

From a former NCAA infractions committee chairman:  “When you do things in an unusual way, it’s hard to evaluate it in the regular process … The other response to it, I suppose, they would be avoiding the bylaws to do the original penalties at Penn State, why not avoid them again [with an appeal].”

Don’t say you weren’t warned.

60 Comments

Filed under The NCAA

60 responses to “Can’t lose what you never had.

  1. gastr1

    I would have thought another reason there could be no appeal is because Penn State agreed to the penalty.

    I am left wondering, yet again, who these Paterno people think they are, exactly–their actions are outrageous. How can a party appeal a penalty given to an organization the party has no ties to? Are they going to sue the NCAA for defamation?

    • Dave

      Penn St. did agree to go outside the normal process on this one. I believe they did have the option.

  2. Just Chuck

    According to the article, the Paterno family is considering suing Penn State. What would be the basis for that?

    • gastr1

      If they did actually do that, it might finally sway all the “Paterno was a victim” apostles away from the altar.

  3. GaskillDawg

    The message to the schools is hire a lawyer to head the investigation (as is Fresh) then claim attorney client priviligr and release the results when it is advantageous.

  4. Apparently some high muckety-muck at NAMBLA issued a statement in support of the Paterno family the other day. I’m not kidding.

  5. Always Someone Else's Fault

    Honestly, I don’t think we’re ever going to see something like the NCAA-PSU case again. If we do, it’s going to involve a similar set of circumstances: innocent victims lured by the glitter of the program, systemic cover-up of the crimes, and a legal process that creates an exhaustive base of evidence.

    I don’t think this is the way anyone wants the system to work. But most high-profile NCAA penalties cases draw media fire for 12-24 months. This one would have been off the charts, with a faction of die-hard PSU trustees playing the role of the clowns. I think PSU and the NCAA decided this was the only way around that group and peeling the scabs off those wounds over and over again for two years.

    Does that benefit outweigh sacrificing “the process”? IMO, the process is so screwed up to begin with, it’s an impossible question to answer.

    • Dave

      see below, from my understanding they did have an option for the normal process. This was more attractive than that.

    • gastr1

      Right, ASEF. You have to consider that there are two kinds of foolishness at stake here: One is to accept the penalties sans investigation, as the Senator points out; another is to ignore the external and internal pressure on an institution to not wallow in a scandal (or risk wallowing in it–for who knows how long). One may outweigh the other, contingent upon circumstances.

      • Jon Lovitz

        You know, this Penn State business has made me realize that it sure is a waste of money and publicity trying those troublesome murder cases, too. Who needs the aggravation. Not to mention that every time there is a pretrial motion the thing gets brought up again in the press when everybody (the victim’s family, the State, the DA’s office, the overworked Public Defender’s staff) just wants to put this all behind them and move on. And the TRIAL! Shit–everybody will have to relive that nightmare again.So let’s just get a rope and hang the accused without having a thorough investigation and one of those pesky trial-thingies. After all, it’s what everyone wants.Isn’t it? Hey, I got an idea. Let’s just do this in every criminal case. It’ll save time, money and all that heartburn. Yeah, that’s the ticket.

        • Always Someone Else's Fault

          There was a thorough investigation. Several, in fact.

          PSU waived their rights. Does a murderer sometimes plea to his crime and ask for expedited sentencing, waiving his right to argue that phase of the trial and surrendering any basis of appeal in the process. Yes. They sometimes do.

          • Hackerdog

            Actually, the investigators said that the investigation was limited and the NCAA should not have relied upon it to determine sanctions.

            • Always Someone Else's Fault

              No – one anonymous source who claimed to be close to the Freeh investigation said that, and the Freeh group emphatically denies that quote came from anyone in their group. No one on the public side of the investigation has said boo about their investigations being used by the NCAA.

  6. Dave

    Senator, They actually did have a chance to have NCAA involvement. Behind closed doors, they were told that a 4 YEAR DEATH PENALTY would be sought if they went that direction. The board was initially dead set against the ultimately accepted penalty, which Erickson brought to them, but then agreed quickly when they found out the alternative would have been a four year death penalty. At the end of the day, this was a power grab by the NCAA, and Penn St. really had no option. The next school MAY be in similar situation, so I’m not sure they would be a fool if left with two very undesirable options. That said, all of your points about how bad the NCAA really are still spot on and the fact they are making this grab does not and should not sit too well with anyone not named Mark Emmert.

    • But in either case, there was no NCAA investigation.

    • Mayor of Dawgtown

      Plus, Emmert was not correctly authorized to impose the penalties by the NCAA in the first place. That would take a vote of all member institutions to adopt “Special Legislation,” which was not done. The Committee that voted to give Emmert that power did not have the authority to do so. The method used to impose the sanctions violated the NCAA’s own constitution.

  7. ChicagoDawg

    “you’d be a certified fool to agree to any investigation of your athletic department that didn’t include direct NCAA involvement.”

    Right, as we know NCAA investigations are the way to go. An opaque two and half year slow-drip investigative process led by nameless, faceless NCAA bureaucrats would be a great way to start the process of getting this behind them. A lengthy investigation that surely would have ended in a more favorable ruling for PSU. Yeah.

    • If you can hold up on the sarcasm for a minute… mind explaining to me how the NCAA could conduct a criminal investigation?

      • ChicagoDawg

        We have re-hashed this ad nauseum. We clearly are not going to agree on whether the NCAA should have been involved. Be that as it may, it was a moot point as it pertained to PSU’s response. They were going to act. Now, you are suggesting that PSU were fools for opting out of prolonnging this affair and should have insisted on an official NCAA investigation. Again, we are past the point of whether they should have been involved and are now on what PSU should have done in response to said involvement. They were anything but fools for taking the immediate medicine they took and if anything, it would be totally foolish to assume that an NCAA-led investigation would end well.

        • gastr1

          I think that no matter how a person feels about the wisdom of accepting the penalties sans investigation, a drawn-out process like the kind typical for the NCAA, and the appearance of challenging said drawn-out process, would have been terrible for Penn State. I think that has to considered both in the NCAA’s decision to act so swiftly and in Penn State’s decision to accept.

          The Paternos, obviously, intend to fight. If Penn State had taken that position it would have been a nightmare of even more epic proportions for the school and the football program.

          • ChicagoDawg

            Agreed. This has been one of my larger guiding thoughts on this whole affair. Notwithstanding Emmertt’s motives, questionable as they may have been, I think there had to be some action taken. While I am typically as driven by logical consistency as anyone, this circumstance cried out for some decisive action that would give the public, PSU and all involved some way to begin the process for bringing this tragedy to an end — to the extent that can ever be possible. Yeah, there was no by-law that said it was illegal to enable pedophilia, but at some point there has to be a place where decency and judgment are allowed to prevail where by-laws may fail. Such circumstances should be rare, but if there was ever a situation where it was warranted this was it. I think this, as much as anything was the best outcome of the unprecedented quick action. I also believe that the use of external investigative process, which was led by credible professionals, was healthy and much needed innovation. So, I think quick action, imperfect as it may have been, was the best course for all parties.

            • Mayor of Dawgtown

              Look, what you guys are all missing is that there may be others (i.e. the new Penn State President) who were involved who wanted the thing to end so they would not be exposed. The method used smells to high heaven. There is a reason why procedure exists.

              • Always Someone Else's Fault

                And there all also reasons why sometimes both parties waive said procedures. True?

                • Mayor of Dawgtown

                  Exactly. Why did the new Penn State Prez agree to what the NCAA did? Think about it.

                  • Always Someone Else's Fault

                    A – It was preferable to the alternative?
                    B – The alternative was a two-year, two-front war – the NCAA on one side, JoePa apologist trustees and boosters on the other, reasonable PSU stuck in the middle?
                    C – There was no way PSU was going to change the fact record or get the NCAA to walk away from the case during said two-year, two-front war?

                    Lets toss out the Freeh report. Pretend it doesn’t exist. What could/would PSU have accomplished by forcing standard NCAA procedures? Substantially lesser penalties? Exonerated in the court of public opinion? A more unified and determined PSU community?

              • ChicagoDawg

                There was a procedure applied here. Special powers were granted, PSU chose to accept the process offered up and waived the standard operating procedure available to the institution and the penalties were applied. You may not like it, but there was a procedure that was agreed upon by all.

                • Mayor of Dawgtown

                  All who? The NCAA Constitution and Bylaws requires that all member institutions agree to change the procedure. That didn’t happen. Now every member institution is at risk of having a penalty imposed on them. If you don’t see the potential for abuse here……….

                  • ChicagoDawg

                    If the institutions were/are as worried as you are about this they will opt out of the NCAA, fire Emmertt, or pass by-laws expressly prohibiting this process from ever occuring again. Whatever the case, the standard by-laws were set aside through an agreement by PSU and Emmert/Board of Governors (or whatever their title is) and basically this was an NCAA sanctioned/self-imposed punishment.

                • Cojones

                  Yessir CD. The Senator says that’s not due process. So you got an NCAA, who doesn’t have the force of law behind them, gotta give you due process of the law. That is the vein in which due process is used- the law. Did they not apply their investigation rules? They got it straight from the top of the power chain by the shortest route permitted by the power of the membership. They used the investigation of the former Head of the FBI. They applied it in their procedures.

                  I’m with you. What’s not to like?

                  • One of the few things that really irritates me is when people take my arguments out of context. I’ve even gone to the trouble to explain in another comment. When I use the term “due process” in this discussion, I’m not talking about constitutional due process, I’m talking about the NCAA’s established procedures being adhered to.

                    It’s fine that you want to try to rebut my argument. But if the best you can do is twist my words to make your point, perhaps it would be better if you’d just leave it alone.

                    • Cojones

                      Some of us were thinking the same thing about this meme about the NCAA (that we already don’t have a high opinion of all their dealings).

                      Those were my words I twisted, Senator, taken from our discussion of “due process”.

                      Your words on the 26th “ignore its (sic) usual process” is appropos for what the NCAA did and I agree. It was unusual, but still part of their process.

              • gastr1

                The new Penn State president? They conducted interviews with everybody but Paterno, from the reports I’ve read. Who else might have been involved?

        • I”m not suggesting anything about PSU. I’m suggesting that the next school chancellor who thinks that an independent investigation of a matter that isn’t clearly in the purview of the NCAA’s regulations is the way to go needs to rethink his or her position.

          • ChicagoDawg

            Fair enough. However, you seem to be suggesting one should not infer any conclusion of PSU’s judgement in settling this affair, but the example they provide would make the next school foolish should they choose to follow. Perhaps it is just the brevity of blog writing where complex topics get mis-understood or it is just my poor reading comprehension? Most likely it is the latter as it wouldn’t be the first time. :-)

            • I think the problem we’ve had seeing eye-to-eye in this debate is that most have tended to focus on the PSU/punishment side of things – certainly understandable – whereas I’ve been more concerned about the precedent this may set on the part of the NCAA. The punishment the school received doesn’t bother me in the slightest; the corner cutting Emmert engaged in to get there concerns me greatly.

              • ChicagoDawg

                Got it. I think the fast-track approach can be dangerous and it may indeed prove to have been an over correction. However, I still feel given PSU’s acknowledgement and acceptance of the approach, the adjudication of the Sandusky case and the credibility of a former judge and head of FBI makes it much more tolerable — from a concern of their having been rail-roaded. I think we can all agree that the NCAA needs to dramatically overhaul their investigative process to bring greater transparency and more timely resolution. Additionally, there needs to be some provision to allow for action on matters that are not covered by by-laws (i.e. Cam affair, pedophilia cover-up, etc.). I get the sanctity of prohibiting ex-post facto in the legal realm, but management of NCAA athletics is not a Constitutional issue.

                • Care to guess who said this about JoePa in 2011?

                  “I am honored to present this award to coach Paterno,” [blank] said at the time. “His ‘total-person’ approach to student-athletes, emphasizing academics and personal accountability is a terrific example of everything the NCAA stands for. Coach Paterno has distinguished himself to the world by his wins on the field, but he has endeared himself to thousands of student-athletes who have learned through his leadership that success in the classroom and in life is the greatest accomplishment.

                  “For me, Coach Paterno is the definitive role model of what it means to be a college coach.”

                  Yep.

                  Think there’s any possibility Emmert was motivated at least partly out of a sense of personal pique over being embarrassed by that?

                  • Always Someone Else's Fault

                    What if he was? What if the presidents and commissioners who signed off on this were as well? Does that discredit their actions?

                  • ChicagoDawg

                    Senator, you may be right about Emmert being ultra petty. I don’t know the man and I suspect he could use some couch time, like many of us. However, it seems to me that you may be laboring under some measure of confirmation bias as pertains to the NCAA and Emmert in this whole affair. I am all about slamming the NCAA where needed and frankly that could be a full time job. Moreover, I certainly have no special affinity for Emmert. However, you seem to attribute the worst possible motives to every action and assume catastrophic outcomes will flow from this approach. Things are rarely so binary.

                    • Pastor Niemoller

                      “First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the Communists and I did not speak out because I was not a Communist.Then they came for the trade unionists and I did not speak out because I was not a trade unionist. Then they came for me and nobody was left to speak out for me.”

                  • Mayor of Dawgtown

                    Senator, have you noticed how the NCAA has treated Paterno like the old Soviet Union used to treat those who were decided to be a disgrace to the Revolution. The Soviets would make then into “non-persons.” All awards and other acknowledgements were taken away. All references to them were stricken from history books. All statues, paintings or busts of them were taken down. After awhile nobody spoke of them anymore. It was as if they never had existed. But then, the NCAA has always been a totalitarian organization. It shouldn’t surprise anyone that Emmert and company have adopted similar tactics.

      • Always Someone Else's Fault

        Senator – so is your position essentially the one of a good defense lawyer?

        1) “The NCAA can’t prove any of this, because they lack the requisite investigatory tools.”
        2) If they can’t prove any of this beyond a reasonable doubt, then we’re better off fighting it and not handing them anything.”

        That was USC’s strategy. And the NCAA penalties in that one were as much about USC’s recalcitrance as they were McNair’s relationship with Pappa Bush.

        I’m just saying the NCAA was going to crush PSU no matter which way this went. Once it became inarguable that people in power at PSU knew what Sandusky was up to and left him free rein at Second Mile, the jig was up. And that basic reality was exposed in the criminal investigation, not the Freeh report. No amount of procedural haggling or sand-bagging by PSU was going to change that reality.

        Procedure protects rights. Rights exist to protect individuals from the power of the state. The NCAA doesn’t have the power of the state. It’s subject to state and federal laws, but once it clears those hurdles, it’s free to do as it pleases, as is PSU.

        I don’t see the procedural precedent here that you do, I guess. I go back to your headline – “can’t lose what you never had.” You clearly think something has been lost in this. I don’t think we ever had it.

        • My position is that either the NCAA should have followed its regular procedure, or, if that was inadequate due to the nature of the offense involved, waited for the criminal justice system to take its course before crushing PSU.

          • gastr1

            Honestly, while that may be the letter of the law, it would hardly have been appropriate for the credibility of either Penn State or the NCAA.

            • Why? Because people were pushing for immediate action?

              • gastr1

                That is a reason that demands more legitimacy than you’ve given it. The other reason, I think, is that so much testimony and evidence had been gathered, and it all pointed one way. Reason “B” having likely influenced reason “A,” of course.

                When you are a national institution (versus the corner grocery), the court of public opinion is a very real court indeed. May not be right, but it’s fact. The fact that actual court had already weighed in only increased said pressure.

                • The actual court only weighed in about Sandusky.

                  • Always Someone Else's Fault

                    And said court(s) generated a body of evidence that was overwhelmingly damning for PSU’s most prominent administrators.

                    Serious questions:
                    Are you suggesting that the NCAA should have waited for Curly, Shultz and Spanier to run the course within the criminal system? Or for the civil cases to wind their way through the courts? Or both?

                    And when those processes had run their course, would that have been a more appropriate time for the NCAA to act? A year or two down the road? And then initiated their own 2 year COI process? Handing down a ruling 2 or even 3 years down the road from now?

                    Maybe that would have made some by-standers more comfortable with the procedural sobriety of the NCAA, but it would have been even more of a disaster for PSU.

                    The other alternative, of course, was for the NCAA to say, “The courts will render their opinion. This isn’t our problem.” I understand those arguments, but I disagree with them. PSU was covering this up to keep the SS Paterno sailing in smooth waters to the finish line of all-time wins leader. PSU used Sandusky and Second Mile as a recruiting tool. This had everything to do with football. If you’re going to bust a program for failing to monitor how many textbooks a football player picks up at student stores but look the other way when children are getting raped in the shower by Ex-Coach Emeritus, then that, to me, is just ducking and running.

                    I appreciate your points, but I get frustrated with the idea that yours is a position of principle while others must be the product of some sort of lynch mob mentality. Maybe I’m misreading you.

                  • gastr1

                    “The actual court only weighed in about Sandusky.”
                    Yes, but in so doing it exacted significant testimony and evidence about the program, not just about Sandusky. Where and when the acts in question happened, for example, is evidence the grand jury and trial process uncovered that was quite central to the issue. In weighing in on Sandusky the court weighed in on Penn State to a great degree as well.

  8. Darrron Rovelll

    Read Don Sanna’s article on ESPN.com – here is the deal. This was never an infractions case – the NCAA Board of Directors were involved because they felt the institution violated Bylaw 2.4.

    I suspect that if Penn St put up too much of a fight then the NCAA BOD would have been prepared to go beyond a 4 year death penalty for football and kick the whole institution out of the NCAA.

    • Mayor of Dawgtown

      If that is true then maybe all colleges and universities need to be getting out of the NCAA. What you just described is blackmail by an institution that is morally bankrupt itself.

      • Cojones

        Got another Institution in mind? Hell, Mayor. We all are morally bankrupt if your not careful where you place your deposits. So do we form the United Us of America:

        “We, the Universities, being of sound mind and body….uuuh, never mind

        • Scorpio Jones, III

          Dayum….I missed all that lawyerly argumentation….all that latin, all that polite pique….this is better that Jack McCoy (minus the ADAbabe, of course.)

          Maybe there is the nut of a new show….Law and Order-College Football?

          Penn State is still a smoking hole in the ground, right?

  9. Macallanlover

    The Paterno family is now as embarrassing as the PSU fans who have been excusing the incredible behavior by their leadership. Just shut up folks, you have passed pathetic at this point, don’t draw any more attention to your cesspool.

  10. Dave

    Yeah – I do appreciate the point of view Senator. For once in a blue moon, I’m probably on the other side of you because of only one reason. PSU agreed to this (at least that’s my understanding). I mean, what’s to argue after that? It’s one thing if the NCAA does something weird that it is not empowered to do and you DON’T agree with it. Is someone really suggesting Erickson went off without the board knowing anything at all? If so, then PSU’s processes are even more flawed than the NCAA (and that’s saying something). My understanding was the board freaked out about these penalties, but then when Erickson told them the alternative, the room went quiet as a graveyard and everyone agreed to it.

    Again, I could be wrong, and maybe PSU is trying catch Emmert in a rules trap, but I’m not seeing any real issue. Poetry might be the NCAA reversing course, following process and handing down a 4 year death penalty. No one wants to destroy the entire town and the lives who depend on PSU football, but man, the PSU powers that be are sure trying to make that option more attractive.