PSU: The United States Supreme Court Notes Your REAL Option
As previously discussed, the argument that the NCAA deprived Penn State of due process is weak. It is even more weak given that Penn State agreed to the NCAA’s penalties. Penn State is fully capable of marshaling a legal team to challenge the NCAA’s rulings, but chose not to do so. The idea of appealing somehow is simply absurd. However, Penn State fans have expressed concern that the Freeh report may be wrong–making the penalties unjust. Fortunately, in the circumstance where the Freeh report is deemed inaccurate, Penn State would have options.
During the press conference by the NCAA to announce the penalties, a question was posed as to whether Penn State could do anything to reduce the penalties. The question was not answered because of a desire not to delve into “hypotheticals.” However, a secondary concern by Penn State fans is what happens if the Freeh report is deemed to be wrong. Apparently, this has happened with a Freeh report in the past. And the upcoming trials may shed additional light on what the “evidence” is. Is there anything that Penn State can do at that point? The answer appears to be “yes.”
In National Collegiate Athletics Association v. Tarkanian, 488 U.S. 179; 109 S. Ct. 454; 102 L. Ed. 2d 469 (1988), the United States Supreme Court ruled that popular UNLV basketball coach Jerry Tarkanian could not pursue a due process claim against the NCAA. The Supreme Court observed, properly in the Confidential’s opinion, that the NCAA simply was not a government entity or somehow the equivalent of one because of its relationship with government entities. However, in so ruling, the Supreme Court noted as follows:
Furthermore, the NCAA’s bylaws permit review of penalties, even after they are imposed, “upon a showing of newly discovered evidence which is directly related to the findings in the case, or that there was a prejudicial error in the procedure which was followed in the processing of the case by the Committee.” App. 107. UNLV could have sought such a review, perhaps on the theory that the NCAA’s investigator was biased against Tarkanian, as the Nevada trial court found in 1984. The NCAA Committee on Infractions was authorized to “reduce or eliminate any penalty” if the university had prevailed. [See Tarkanian, supra at 195 n.15 (citations omitted).]
Sure enough, the NCAA bylaws DO contemplate that an imposed penalty may be reviewed if there is “newly discovered evidence” or a “prejudicial error in the procedure”:
184.108.40.206 Review of Penalty.
220.127.116.11.1 Newly Discovered Evidence or Prejudicial Error. When a penalty has been imposed and publicly announced and the appeal opportunity has been exhausted, there shall be no review of the penalty
except upon a showing of newly discovered evidence (per Bylaw 19.02.3) that is directly related the findings in the case or that there was prejudicial error in the procedure that was followed in the processing of the case
by the committee. (Revised: 1/9/96)
18.104.22.168.1.1 Review Process. Any institution that initiates such a review shall be required to submit a brief of its appeal to the committee and to furnish sufficient copies of the brief for distribution
to all members of the committee. The committee shall review the brief and decide by majority vote whether it shall grant a hearing of the appeal.
22.214.171.124.1.2 Institution or Conference Discipline as New Evidence. Disciplinary measures imposed by the institution or its conference following the NCAA’s action may be considered to be
“newly discovered evidence” for the purposes of this section.
126.96.36.199.1.3 No Imposition of New Penalty. If a hearing of the appeal is granted, the committee may reduce or eliminate any penalty but may not impose any new penalty. The committee’s decision
with respect to the penalty shall be final and conclusive for all purposes.
188.8.131.52.2 Reconsideration of Penalty. The institution shall be notified that should any portion of the penalty in the case be set aside for any reason other than by appropriate action of the Association, the
penalty shall be reconsidered by the NCAA. In such cases, any extension or adjustment of a penalty shall be proposed by the Committee on Infractions after notice to the institution and hearing. Any such action by
the committee shall be subject to appeal.
It is difficult to envision a successful challenge to the procedure after the fact and given the agreement to the penalties by Penn State. But the newly discovered evidence options provides hope. If the Freeh report is ultimately deemed inaccurate, there ARE steps that Penn State can take to have the NCAA re-review the penalties. If Penn State has been fully compliant, and if the NCAA agrees that there were errors in the Freeh report, the NCAA bylaws would grant the NCAA the discretion to reduce the penalties.
So all is not lost for Penn State. If the evidence changes, the NCAA has the power to revisit the penalties.