The Confidential

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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”:

19.5.2.8 Review of Penalty.

19.5.2.8.1 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)

19.5.2.8.1.1 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.

19.5.2.8.1.2 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.

19.5.2.8.1.3 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.

19.5.2.8.2 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.

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9 thoughts on “PSU: The United States Supreme Court Notes Your REAL Option

  1. Marta on said:

    Thank you for your articles, they have been very informative. What makes me angry is 2 fold….One, despite the fact that the NCAA isn’t a federal/state entity and therefore doesn’t require due process, they made a call based on a shoddy report with a sensational “conclusion” instead of finding the truth. Regardless of whether or not that’s illegal, it’s still wrong. But then again, when has an un-policed organization ever had to be right? Secondly, I am angry at Penn State, as you pointed out already, for just taking the punishment instead of standing up against the “fact Freeh” report. I understand that the NCAA pretty much had Erickson on his knees by waving the daeth penalty in his face but if the University had stood up soon against the media’s broad brush then maybe it wouldn’t have come to this. We will have to wait and see…

    • I have reviewed significant portions of the Freeh report and disagree with your assessment that it is “shoddy.” While there was some unnecessary editorializing within it, I think at least a portion of the justification for that was to make sure that Penn State officials were not emboldened by the circumstantial evidence or evidence that could not be appended because of the investigations. I fully disagree with the suggestion that this is the maximum evidence against Penn State.

      I also think that current Penn State officials are being treated unfairly. They were not the ones that made the wrong calls in 1998 and 2001. I think that they have handled this well because they DO have members of the media and college football fan base on their side. If Penn State fans cannot see that, then they really are not looking hard enough. Fighting this and engaging in a lengthy appeal would not have helped in the short or long run.

      • PSU-Fan on said:

        What specific “evidence” in the Freeh report justifies stripping Penn State of wins from 1998, when the DA investigated Sandusky and found no cause to file charges, to 2011? Keep in mind that Joe followed PSU procedure and Pennsylvania law to a “T” and was commended by the AG for his handling of the situation. What “evidence” is in that report proving “beyond doubt” that Joe Paterno was part of a coverup?

        • PSU-Fan,

          See https://atlanticcoastconfidential.com/2012/07/24/penn-state-penalties-the-day-after/

          I do not think vacating the wins was a good penalty. I think vacating the wins FOR 2001 would have been appropriate given that a proper inquiring into sandusky would have been a black eye for the program and hurt somewhat.

          Also, who cares about JoePa? Wins are an institutional success. If some kid had taken money from an agent without his knowledge, he might have lost the wins that way too. There was enough institutional knowledge to hit Penn State for wins with or without JoePa’s specific contributions.

          May I also add that there is no “beyond doubt” standard in these matters. It is, at best, a preponderance of evidence standard. So you are mixing apples and oranges.

      • mschaefer on said:

        I think the bigger issue with the new PSU leadership…is that they ARE NOT different. AD Joyner and President Erickson have been a part of PSU for some time. Erickson was actually one of the ones that bestowed the ‘Emeritus’ status to Sandusky (This is the status that quite literally gave him the keys to the kingdom.) So when this leadership rolls over..you have to wonder why. They seem quite content to let the blame fall on those that have yet to have their day in court. The Freeh report is shoddy… and has been rolling out Errata sheets since the day it was released.

        There is more to this and many do not feel that the current leadership is any difference. Doesnt anyone think it is odd that the Board of Trustees got out without so much ‘benefit of the doubt’ and they also happen to be the ones who recommended and paid Freeh’s bill??

        • I don’t think anyone really cares whose specific fault it was. Whether it was the President, the Trustees, the AD, Paterno, Sandusky, McQueary, anyone. It was everyone who failed to do SOMETHING to stop it. Different people had different responsibilities and arguable failures. Shifting blame within Penn State does not disturb the need for a penalty of some sort.

  2. Frank Buchanan on said:

    Regarding vacation of wins. Agreed, by itself this is a meaningless penalty. However, the fact that this particular penalty was assessed for a period that includes 1998-2001 suggests that some portion of the remaining penalty is also based on actions in that time frame. If in fact there were no punishable actions in that time frame, it seems natural to conclude that some portion of the remaining penalties is unwarranted.

    The answer to that angle though, is in the sanctions report and is briefly alluded to in the post news conference Q&A. The sanctions report parrots the Freeh report, which concludes that in 1998 Spanier failed in his duty to report that a high profile employee was being (or had been) investigated for the possibility of sexual abuse. Even though it appears there was never any contemporary assertion by the victims or parent that abuse had occurred (at least, I don’t see such in the report), Freeh asserts that this should have been reported (that may sound like I’m making a judgement, but I’m not). I think it also lists a failure for the same non-report, on the part of the board, for not having rules in place that would require the president to make them aware of events such as this.

    • Frank Buchanan on said:

      I’m unable to edit my previous post. When I wrote “Spanier failed in his duty to report”, I should have added “to the board of trustees”.

  3. In your commentary you have left out the changes that have occurred regarding how the NCAA operates today and court decisions since Tarkanian. nEW YOrK LaW sChOOL LaW rEViEW VOLUME 54 | 2009/10
    the UNaUthorized Practice oF Law, the Ncaa, aNd athLetic coMPLiaNce directorS
    disciplinary action, or alternatively, the school could discontinue its membership in the NCAA the contrasted the NCAA operation with high school athletic associations.  “In the high school athletics context, the Supreme Court has declined to apply Tarkanian. In Brentwood Academy v. Tennessee Secondary Schools Athletic Association, the Supreme Court held that a high school athletic association was a state actor when the association enforced its rules against a member school because there was “pervasive entwinement of public institutions and public officials” in the association’s composition.  The Court found that Tarkanian was not controlling because the schools that were members of the association at issue were located in the same state, while NCAA member schools are in various states.  The fact that the schools were located in the same state was dispositive for the Court in determining state action.  Notably, the Court declined to elaborate on this crucial factor, even though college and high school athletic associations are nearly indistinguishable in terms of purpose, structure, and organization.  Due to these similarities, it is clear that the logic used in Brentwood could and should be extended to the NCAA state action cases. Public schools predominately govern the NCAA, generate the most revenue for the organization, and carry out most of the enforcement of NCAA rules using state resources.  The issue of whether the NCAA is a state actor may come before the Supreme Court again.  In 2007, the Second Circuit held in Cohane v. NCAA that the NCAA “could be deemed a state actor if the allegations in a coach’s complaint were proven.”  Although the Supreme Court denied certiorari,162 it is likely that this issue may resurface in the near future. 

    Also, see:  Journal of Legal Aspects of Sport
    ARTICLE: Revisiting Tarkanian: The Entwinement and Interdependence of the NCAA and State Universities and Colleges 20 Years Later*
    * This article is based, in part, on a presentation given at the College Sport Research Institute conference on April 18, 2008.

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