The Confidential

The ACC Sports Blog

Due Process, Penn State, Blah Blah Blah

The Confidential has seen an argument in various places that Penn State was somehow deprived of due process.  For example, Tony Barnhart of CBS Sports has this nice article about how he is comfortable with the penalties imposed on Penn State, but not the due process.  Please note that the Confidential writes from the perspective of a licensed, practicing attorney, but is not the product of substantial research.  Nevertheless, a quick bit of research confirmed that it seems highly unlikely that there was a due process violation here.

First, what is due process anyway?  The Fourteenth Amendment to the United States Constitution provides as follows in Section 1: “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”  The concept of “due process” has emerged over the decades to involve two components: substantive due process and procedural due process.  Procedural due process generally requires that, “when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.”  See e.g.  Substantive due process generally “prohibits the government from infringing on fundamental constitutional liberties.”

Setting aside these meanings, the question is whether the NCAA is somehow equivalent to a government.  Some courts have answered that question with a “no.”  See NCAA Due Process, Its Past and Its Future, Christopher V. Carlyle, Entertainment and Sports Lawyer, Vol. 12, No. 1 (Spring 1994).  In fact, no less than the United States Supreme Court ruled that the NCAA was not a state actor subject to the 14th amendment in National Collegiate Athletics Association v. Tarkanian, 488 U.S. 179; 109 S. Ct. 454; 102 L. Ed. 2d 469 (1988).  Later, when Nevada tried to legislate a due process requirement into Nevada state law, the Ninth Circuit Court of Appeals ruled that the legislation violated two separate provisions of the United States constitution: the Commerce Clause and the Contract Clause.   National Collegiate Athletics Association v. Miller, 10 F.3d 633 (9th Cir. 1993).  In other words, it is unclear how Penn State could argue that the NCAA is required to afford them due process as a matter of law.  The NCAA is a private entity, not a state actor.

Second, even if the NCAA were somehow a state actor, the protests at issue surround the procedural tactics chosen by the NCAA, such as not taking sufficient time after reviewing the Freeh report to decide the sanctions and not conducting its own investigation.  There is no suggestion that Penn State has been deprived of substantive due process.  This is a procedural due process issue.

The problem for Penn State is that, as noted above, procedural due process only requires notice and the opportunity to be heard.  It is beyond dispute that the NCAA provided notice to Penn State in the form of a letter on November 17, 2011.  NCAA letter to PSU.  In this letter, the NCAA:

  • Provides notice to Penn State that it deems the Sandusky matter and its sequellae to be a lack of institutional control
  • Sets forth that the matter violated several NCAA provisions in its Bylaws and Constitution
  • Lists several questions
  • Gives Penn State until December 16, 2011, to respond.

Under the circumstances, it certainly appears that Penn State was given “notice” and an “opportunity to be heard.”  It does not appear, however, that Penn State ever took advantage of that notice/opportunity.  That does not equate to a deprivation of procedural due process.  It is up to the party claiming such a deprivation to exercise its rights once it is given notice and the opportunity to be heard.  Due process does not guarantee that you must be heard, after all.  As such, the Confidential is perplexed by the suggestion that Penn State was somehow deprived of due process.

Do you disagree?  Feel free to share some law supporting your argument.  The Confidential is opinionated, but on an issue like this, there may be a colorable argument that someone with more time to research this issue can come up with.  If so, the Confidential is free to change its opinion!

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3 thoughts on “Due Process, Penn State, Blah Blah Blah

  1. Pingback: PSU: The United States Supreme Court Notes Your REAL Option | ATLANTIC COAST CONFIDENTIAL

  2. Frank Buchanan on said:

    When a non-lawyer such as Barnhart uses the term “due process”, he doesn’t intend the legal meaning of that term, and he probably doesn’t understand the legal meaning of the term.

    My guess is what he intends this term to mean is a sense of Penn State having ro not having an opportunity to perform an investigation to refute the claims in the Freeh report (but you’d have to ask him if that’s what he meant, not me). In a non-legal sense, to someone like myself who has no experience with the legal system, it appears that Penn State was given little opportunity to perform such a defense, given that the penalties were announced 1 week after the Freeh report was made, that nobody at PSU was (supposedly) given any knowledge of the progress of the investigation prior to that (admittedly, that was PSU’s choice, no one mandated that), and that post-sanction interviews with both Emmert and Erickson suggest Erickson was coerced into signing the consent decree (though, after seeing the video of the interview attached to the ESPN article that claims Emmert admitted this, I’m not convinced that he does admit it).

    • Well, if Penn State disagrees with the Freeh report’s accuracy or evidence supporting same, there are provisions in the NCAA bylaws that allow them to petition for reduced penalties. That is another discussion on here.

      Penn State should have known many of these facts long before the penalties were handed down. If the complaint about the Freeh report is that there is nothing new and insufficient evidence–then there is nothing new for Penn State to ponder.

      If Penn State truly needed more time, they could have asked for it: “Mr. Emmert, I understand your zeal to impose penalties, but we need to digest this report, consult with legal counsel, and consult with the trustees before we can accept any penalties.” My sense is that the Freeh report was NOT a surprise to anyone and there was no need to digest its contents at all. The fans may have needed time, but not the decision-makers.

      No doubt this stinks for Penn State football fans. But I am just not seeing a due process argument (legally or otherwise) if the NCAA put PSU on notice in November 2011 and issued penalties in July 2012.

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