The Confidential

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Archive for the tag “Paterno”

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”: Review of Penalty. 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) 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. 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. 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. 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.

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!

Penn State Penalties: The Day After

The Confidential has spent more than 24 hours digesting the NCAA sanctions imposed on Penn State by the NCAA yesterday.  As part of that digestion, the Confidential engaged in debate with neutral observers and Penn State fans alike regarding the sanctions.  While the Confidential still approves the NCAA penalties and believes them just–there are a few aspects where the NCAA seems to have erred.

As a preliminary matter, as it relates to the NCAA imposing ANY sanctions, the Confidential remains steadfast in its opinion that the NCAA was free to sanction Penn State for the sheer embarrassment alone.  What happened at Penn State hurt the image of college football.  We applaud when the NBA suspends Ron Artest for jumping into the stands; we should similarly applaud when the NCAA seeks to protect its image against this embarrassment.  After all, it was the adults at Penn State–the leaders, in fact–that committed the errors.  It is a bit troubling that a school can be punished for the prior sins of a young man (see USC & Reggie Bush), but there is no such sympathy for Penn State here.  Guys in suits made big mistakes.  Punishment was appropriate… sorry.

As for the punishments themselves, here is a copy of the summary of the penalties:

  • $60,000,000 fine, with the funds used to support an endowment for child abuse victims.  1 year’s gross revenue of the football program.
  • Bowl ban for 4 years
  • 10 less scholarships per year for four years.  Maximum of 65 scholarship players on team for four years, beginning in 2014-2015.
  • Current players may transfer
  • Vacated all wins from 1998 to 2011.
  • Athletic department–5 years probation, with an athletic integrity monitor.

There is no real quarrel with the fine, the bowl ban, the loss of scholarships and the probation.  While the fine is heavy, it is only one year of gross revenue.  And spread out over five years, the cost is not that damaging–perhaps 1/2 of the TV revenue Penn State derives.  The bowl bans, loss of scholarships, and the probation are hefty, but not unprecedented in form.

The issue with these punishments relate to the transfer of players and the vacating of wins.  The Confidential agrees that players should be allowed to transfer.  It is certainly not THEIR fault that this punishment was handed down.  HOWEVER, the NCAA is going way too far with respect to the rules governing this transfer process.  Specifically, the NCAA is allowing schools to contact Penn State players.   While the schools must inform Penn State of the contact, this remains an absurd policy.  If players want to leave, so be it.  They can contact the schools.  There is no need to allow open-recruitment of Penn State players.  That just adds insult to injury.

Even worse, the NCAA will apparently allow punished programs like USC and Ohio State to add Penn State players:

And finally, a school already facing scholarship limits because of NCAA infractions, such as Ohio State or USC, may add a Penn State player as long as it doesn’t exceed the limits specified in its infractions ruling. So USC can add Penn State running back Silas Redd as long as it doesn’t exceed its NCAA-mandated scholarship limit of 75.

What?  The NCAA is punishing Ohio State and USC.  There is simply NO logical explanation for allowing these programs to even consider adding former Penn State players.  The whole purpose of punishing those programs was to impose a penalty on them for prior violations.  Those penalties have not ended yet.  They should be prohibited from sharing in the feast on the Penn State players.  This is simple common sense and fairness.

Finally, the Confidential opposes the vacating of wins from 1998 to 2011.  Of course, vacating wins is a stupid and pointless penalty anyway.  If a school cheats, then perhaps they should forfeit the game–with the losing team becoming the winner and vice-versa.  But vacating the wins is a useless gesture.  Whether it is applied to Joe Paterno, Bobby Bowden, or anyone else, it is simply a fiction.

Here, it is obvious that the cover-up of Sandusky’s deeds staved off a public relations disaster that arguably would have damaged the football program.  But those kids still went on the field and won (or lost) the games that they played.  The kids played within the rules and did not cheat.  The games were legitimate and should not be removed from the record simply because of the misdeeds of the administration unrelated to the games themselves.  Even the coaches/opponents must agree that vacating wins is pointless.  In the context of Joe Paterno, vacating the wins seems like a twisting of the knife in Penn State.  Perhaps the NCAA could have vacated the wins from 2001–the year that Penn State should have done more.  Had Penn State endured the negative public relations that year, the season might have been disappointing.  In striking 1998 to 2011, the NCAA simply went too far.

What do you think?  Did the NCAA get it all right?  All wrong?  Partially right?  Feel free to share your opinion!


Penn State Penalties

The NCAA has announced its penalties against Penn State.  The goal was to reflect the magnitude of the “terrible acts” and allow Penn State to re-establish a proper football culture at the University.  The penalties are severe, but reflect the Confidential’s twin desires that (a) something be done to address abuse generally; and (b) avoid the death penalty.

The following sanctions were handed down (for the NCAA’s explanation–see link):

  • $60,000,000 fine, with the funds used to support an endowment for child abuse victims.  1 year’s gross revenue of the football program.
  • Bowl ban for 4 years
  • 10 less scholarships per year for four years.  Maximum of 65 scholarship players on team for four years, beginning in 2014-2015.
  • Current players may transfer
  • Vacated all wins from 1998 to 2011.
  • Athletic department–5 years probation, with an athletic integrity monitor.

The Confidential believes that the NCAA’s punishments are strong, but appropriate.  As evidenced by the comments by Penn State fans, they just do not “get” how backwards the culture is there (or at least WAS).  This should serve to restore the proper balance between football and school.

Penn State’s Future? Check Back in 14 Hours.

The NCAA has announced that it will be levying penalties against Penn State tomorrow morning at 9:00 a.m.  Previously, the Confidential has opined that the death penalty is inappropriate because it adds one more insult to the victims.  It appears that the NCAA has decided to eschew the death penalty.  However, the looming penalty is being described as “unprecedented” and so severe that a source said that Penn State “may prefer the death penalty.”  So, the college football world can brace itself for a serious set of sanctions against the football King of the Northeast.

What do we know?

Well, we know that Penn State will not appeal.  They do not have any interest in challenging the NCAA.

Nevertheless, we also know that many commentators seems to be tripping over themselves to state that the NCAA should not be punishing Penn State under NCAA rules.  Two weeks ago, everyone wanted the death penalty.  Now, the non-death-penalty is unwarranted.   Writers need to make up their minds, apparently.

The Penn State community remains in denial–arguing that the NCAA should not concern itself with the Nittany Lions’ athletic program’s failure to keep a recidivist pedofile out of its locker rooms and subsequent cover-up.  Yes, Joe Paterno did great things.  We all get it.  But his program terrorized a number of young boys.  It might not be JoePa’s FAULT, but he missed several opportunities to prevent it from happening.  Stop worrying about Paterno’s legacy and instead clean up your program.

Finally, let’s speculate about penalties.  Huge fines?  Guarantee it.  The aforementioned article even speculates that the money will be donated to charity.  Bowl bans?  Count on it.  Lost scholarships?  Absolutely.  More?  Who knows.  Tune in tomorrow at 9:00 a.m. to find out just how unprecedented it is.

Penn State, the Death Penalty, and Such

The long-awaited Freeh report is out in public.  This allows everyone to start debating Penn State.  Some have even thrown around the idea of the death penalty for Penn State.  There are too many writers suggesting that to bother citing to any one of them.  The Confidential does not want to minimize what happened at Penn State, but fails to see how the death penalty serves anyone’s interests.

Nobody wins if Penn State football is killed.  Penn State and its fans obviously lose.  The Big 10 loses.  Anyone who enjoys playing and defeating (whether often or not) Penn State loses.  The NCAA loses–demonstrating that it cannot prevent wrongful conduct, only punish it long after it occurs.  Seriously, who wins?

Most importantly, there are victims of these crimes.  These victims have friends and relatives.  These victims want justice, surely, but do not want to be responsible for the death of the Penn State football program that entertains so many people they know and care about, and is so integral to local life.  The victims have suffered enough.

A better justice for these victims would be a cleaned-up Penn State program that takes the lead on preventing this from happening again anywhere.  Actually, there is a rather obvious institutional problem as it relates to sexual abuse, especially child sexual abuse.  People do not want to believe that colleagues, particularly respected colleagues, can be abusive.  This is not limited to football programs, but happens in churches, businesses, and government.  However, there are some very smart people who get paid to research at Penn State.  Perhaps Penn State could devote some significant resources from its Big Ten television revenue to putting its smartest sociologist, psychologist and business minds together on how to create an institutional system that allows for a rational, proper response to accusations of sexual abuse.  Not laws or regulations that defer responsibility to the government, but a system that allows entities to self-police long before it reaches the stage of punishment.  This would not be as financially lucrative as sucking on the teat of Monsanto, but this would be Penn State’s greatest gift to the victims–preventing future victims in more places than merely Penn State.

If the NCAA wants to kill Penn State football, it can.  Then we can start talking about what happens next in the conference scheme.  Frankly, the Confidential thinks that those discussions are designed more to inflame passions and entice viewership than any real possibility of the NCAA implementing the death penalty.  The problem is that arguments can detract from solutions.  Until Penn State folks stop worrying about legacies, can anything good be accomplished.  Non-Penn State folks need to stop provoking the Penn State folks.  And so on.

The Confidential has never much cared for Penn State.  They belonged in the Big East.  They would fit nicely in the ACC today.  But that does not mean that it supports the death of its football program.  And without an explanation as to how it benefits all, or even anyone, the Confidential cannot support it.  Punishment can be cathartic, but it can also be pointless.

Bernie Fine Fired–Jim Boeheim Likely Safe

Bernie Fine has been fired, but Jim Boeheim’s job appears to be safe.  Although the Confidential previously opined that Jim Boeheim was taking a huge risk in going “all-in” with respect to the Bernie Fine molestation accusations, it now appears that there is stronger evidence against Bernie Fine AND that Jim Boeheim is nevertheless going to survive.  So much for the “all in” analogy.  At least, the Confidential beat the rest of the blogosphere with that analogy (prove us wrong).

The Confidential’s primary concern was that Boeheim could face serious trouble for calling the accusers liars and suggesting that they were making the accusations for the money.  He was also extremely confident that Bernie Fine would be vindicated.  Well, so much for that.  The latest news is that Bernie Fine’s wife is on tape essentially admitting that Fine was very much capable of these acts.  Feel free to read the details elsewhere.  In addition, there is a now a third accuser too.  Not surprisingly, the University wasted little time in firing Fine, which Boeheim concurred with in a statement that he obviously did not write himself.

The upshot is that Boeheim was wrong about Bernie Fine.  Barring some sort of series of conspiracies, it would appear that Fine is going to have a permanent cloud over his name, which tarnishes Boeheim.  If Joe Paterno got fired for simply being morally deficient, where does calling the accusers of child sexual abuse liars out for money rank?  One would think that Boeheim would be in trouble.  As usual, there are commentators who got their name in the press today opining accordingly.

But, overall, it has been surprisingly quiet.  It does not appear that there is a groundswell of momentum against Boeheim.  The question is why?  The Confidential believes that there are five key points that aid Boeheim’s position:

  1. The Penn State matter involved an assistant coach observing the rape of a 10-year old, without anyone bothering to have the police notified.  Ever.  In contrast, the Syracuse matter involves allegations that nobody affiliated with Syracuse has ever witnessed.  Also, while the evidence is mounting against Fine, there is not one piece of evidence that is not questionable–be it the credibility of the accusers or the allegations that the tape of Mrs. Fine was doctored.  This is simply not open and shut.  Nobody knows if Fine can even be convicted due to statutes of limitation, much less whether he will be.  There may never be any trial.  While things have gotten worse, they are still far below the evidence in the Penn State matter.
  2. Boeheim’s harshest comments were very much a knee-jerk reaction to an accusation against him seeing one of the accusers in Bernie Fine’s hotel room in the 1980’s.  There was no sense that Boeheim would have seen any activity, and even the accused later clarified that Boeheim did not have knowledge.  In between, however, Boeheim’s harsh response also addressed this misleading statement by the accuser.  While the import of the allegations against Fine were the real news story, Boeheim had a legitimate right to respond to the one statement involving him.  Unfortunately, he got carried away and commented on things that he should have left to the school to address.  But because he had a fair reason to respond, going too far in his response is at least somewhat understandable.
  3. To his credit, Boeheim wisely backtracked from his harsh statements by at least allowing for the possibility of changing his mind if he was wrong.  He had used harsh words, but the totality of his words did leave an opening for him to be wrong.  Even if he never expected to be wrong, this was helpful in showing that he was not 100% dismissing the possibility that the allegations were true.  In retrospect, this may have been very important.
  4. The Syracuse University response has been outstanding.  Boeheim may not have lived up to what his bosses wanted in the first hours, but there is absolutely no indication that his bosses were beholden to him.  In a strange way, Boeheim’s harsh remarks demonstrated that he absolutely does not tell the administration what to do.  He was harsh, but the Chancellor has been very measured.  And then the decision to fire Fine was swift, appropriate, and agreed-upon by all.  Within hours of Syracuse University learning about the audio tape, Fine was done.  And, most importantly, Boeheim apologized.  The words were likely written by another, but he did what he needed to do.
  5. ESPN’s failure to release the tape earlier.  Had ESPN provided the tape originally, Boeheim’s response may have been very different.  Because ESPN didn’t show their entire hand, Boeheim probably deserves a mulligan on his “all in” approach.  Everyone was misled by the veracity of these allegations.  Nobody was 100% convinced it happened when first reported.  Even with the tapes, the holes in this story are such that reasonable doubt may always exist.  Because we all got fooled, Boeheim’s remarks go from a terminable offense (perhaps) to a regrettable statement.

In the end, it would appear that the Confidential’s concern that Boeheim was going too far will not be realized.  At least today.  Nobody knows what the news will bring tomorrow will bring.  This story gets weirder by the day.

The good news is that the news media did not choose to punish Jim Boeheim for merely his words.  This happens in society and Boeheim would not be the first to suffer a severe penalty for the wrong words.  Syracuse University would have been well within its rights to have a zero tolerance approach to insensitive statements.  But this was not so severe that he HAD to be fired.  And this country has always been quick to forgive the truly contrite–and with Boeheim being part of the decision to fire Fine AND issuing an apology–the healing process began before anyone could jump in to say he should be fired.

But the best news is that Boeheim is now in a position to advocate from a position of strength for all of us to be a bit more careful when assuming that allegations are false.  Although we can think of motives to lie and reasons to disbelieve, Boeheim can go on the speaking circuit and advocate that we all be a little more sensitive.  Kind of like Michael Vick and the pro-dog promos.  Not all incredible stories are false.  Not all people who report abuse are doing it because they plan to sue.  If he can share that message going forward, this is a great opportunity for meaningful change to happen.  And that’s something that the accusers and Boeheim should be able to agree on as a silver lining of this very strange situation.

Syracuse Assistant B-Ball Coach Fine Being Investigated for Molestation

Longtime Syracuse University Assistant Basketball Coach Bernie Fine has been placed on administrative leave based on an investigation into possible child molestation.  On the heels of a major scandal at Penn State (as well as an issue at The Citadel), this report hits close to home, as Syracuse University is set to join the ACC in the near future.

While the Penn State and Syracuse situations share the common bond of accusations of molestation against a person associated with the program, it should be noted that there are substantial differences between what is known about the situation at Syracuse and the situation at Penn State.  As the New York Times has reported, Syracuse University conducted its own investigation into these allegations in 2005:

In a statement, the university said that “an adult male” came to them in 2005 and the university started its own four-month investigation into the allegations. The statement said that the university’s legal counsel spoke with people who “the complainant said would support his claims” and that “all of those identified by the complainant denied any wrongful conduct” by Fine. The statement also said that Fine “vehemently denied the allegations.”

In other words, Syracuse investigated after the police declined to investigate.  So this is not a matter of Syracuse not informing the police.  By the time it got to Syracuse, it was post-police.  And Syracuse still investigated.  Syracuse was apparently unable to corroborate the information that the alleged victim said would be corroborated.  The alleged victim suggested that certain witnesses be interviewed and those witnesses did not confirm the accusations.

Significantly, in order for this matter to rise to the level of Penn State, it would require an assistant coach to witness an incident and report it to Jim Boeheim, who would have to then pass the matter upstream and lose interest.  This certainly is not alleged to have happened at Syracuse.  And there is no sense that Jim Boeheim or anyone at Syracuse University was ever presented with enough to conclude that the report was credible. Most importantly, the report is not grand jury findings, but the version of events provided by a 39-year old victim, not under oath at the time.  No third party has deemed them credible yet.

And these are just some of the differences.  Under the circumstances, while there might be a rush to judgment to criticize Syracuse, there should be an equally compelling rush to judgment to not criticize Syracuse.

At least at this early juncture.  There is certainly more to come.

In fact, the Confidential certainly does not want to suggest that the alleged victim is not being truthful.  Only the victim and Fine know for sure.  All that can be hoped for is that any investigation that takes place uncovers the truth–whether it is the alleged victim’s allegations or Fine’s denials.  In the wake of the Penn State situation, it is understandable that this might be the environment that would persuade a victim to feel more comfortable coming forward.  Perhaps the alleged victim is hoping for same.  But nobody really knows.  And in the absence of numerous allegations by victims, as in the Sandusky situation, it is harder to rush to judgment for any side.

Nevertheless, the Confidential does take issue with Jim Boeheim opining on this issue.  He should probably let his University leaders do most of the talking here.  He cannot be objective when it comes to his long-time assistant.  And, from a strategic standpoint, does he really want to go “all in” by taking a position.  A more reasoned approach would have been to at least hedge his bets somewhat.  You never really know anyone.  He may be confident that Fine is innocent.  But can he be 100% sure?   According to ESPN, Boeheim responded strongly to the alleged victim’s statement that Boeheim might have seen him:

“He makes the point that he was around and traveling with the team,” Boeheim said. “Not that I know of. I never saw him. He is quoted — (that) I saw him in the room. I have never been in Bernie Fine’s room in my life. That is an outright lie.”

Yep, that’s going “all in.”  He better be right.

Finally, the Confidential was strong in its criticism of Penn State in opinions such as this, this, and this.   The Confidential will be equally critical if facts come out demonstrating that this is closer to the Penn State situation than it seems right now.  Needless to say, this will be newsworthy for quite some time.  A major university, and its various departments, cannot support child molesters.  They also cannot cover-up instances of child molestation.  But the current “facts” just do not come anywhere close to suggesting that anything of that sort has occurred at Syracuse.

What do you think?

Penn State & Death Penalty

Wow.  Already we have a respected commentator suggesting that Penn State should drop football for a year or two.  ESPN’s Lester Munson states as follows:

Consider the cancellation of the football program for a period of at least two years. It might not be possible to establish a new culture without the total elimination of the old one. A two-year hiatus might be the only way to eliminate a systemic problem. How important is football to an institution of higher learning that serves 95,000 students and is supposed to be dedicated to the pursuit of excellence? When Tulane University was caught in a basketball point-shaving scandal in the mid-1980s, the university leadership eliminated the sport for several years to allow a complete renewal of values. When the U.S. Congress discovered a series of abuses in 2008 in its page program, which was designed to offer opportunities to young people, the members of Congress agreed to eliminate it altogether.

He also notes just how hard that would be for the Board of Trustees to do.  So let’s not kid ourselves about the likelihood of that happening.

But it remains a possibility.  And, if it did happen, what would the repercussions be?

Your answer will be the “denial” answer.  Why even think about that which cannot happen?

To that, the Confidential notes that this is a scandal of unprecedented terms:

#1  The SMU scandal involved paying players.  To be sure, that is cheating.  However, it hardly violates the 10 Commandments.  It violates an NCAA rule that seeks to promote amateurism in sports.  Big difference.

#2 Another scandal involved the cover-up of a murder at Baylor.  The cover-up of a murder by the basketball coach is certainly reprehensible.  But it was a one-time incident, rather than systemic.  The murder victim was not a child.

Compare to the instant matter.  More than 99% of the country finds child sexual abuse reprehensible and disgusting.  Things get wishy-washy when a parent is criminally charged for a severe or unique punishment of a child.  That is partially why Bobby Knight remained a polarizing figure.  When it comes to discipline, things get murkier for some.  Child sexual abuse is never defended.  It is always taboo and properly so.  There is no excuse for not doing the maximum to prevent it.  It is newsworthy whenever it is reported.  There is no defense by those who commit it.

And that is where Penn State finds itself… straddling the line between committing it and enabling it.  If one imputes the conduct of Sandusky to the University, that is bad enough.  Molesting children on trips to watch bowl games or in the locker room is terrible.  Not ensuring that this repeat offender be criminally investigated is inexcusable. That’s the message that is being sent.  Sure, Joe Paterno may or may not be more culpable than others… but this all happened at Penn State. And the odds are that Sandusky did not start doing this in 1998.

But ask your grandmother what she thinks of this scandal?  She’ll know about it and have an opinion.  That is why this situation is drastic.

If you are Penn State, trying to make this go away quickly can have a backlash.  Those watching from afar will not be pleased if there is not an appropriate response. This is the type of no-lose situation for Congress to get involved in and hold hearings about: has college athletics gotten too big to police itself?  Who, other than the colleges, will oppose this?  In fact, there will be college professors supporting the inquiry.  And I am sure the IRS wouldn’t mind convincing folks that we should be done pretending that athletic departments are entitled to the same tax breaks as charities and churches.  The vultures will be circling.

Meanwhile, there sits Penn State.  If it says that it “cannot cancel football,” that fuels the fire of those who would see a college sports environment where the schools are simply unable or unwilling to police themselves.  If it cancels football, it will suffer financially and endure a major hit to its reputation.  But it will also begin the process of rebuilding its reputation.  And its leadership may conclude that it is the only way to truly rebuild its reputation.

And Penn State is better situated to recover than SMU.  Penn State is a major public institution.  It has a local and national following.  There will always be 45,000 students streaming through.  It has the markets.  It can survive.

So let’s not pretend it is impossible.  Even if unlikely, it is possible.

Then what?

Even if for two years, the 12-team Big 10 suddenly becomes an 11 team conference.  Under NCAA rules, no championship game.  Meanwhile, the biggest embarrassment in college sports took place within the Big 10. Compounding improbability upon improbability, could the Big 10 go in a different direction?  At that point, Penn State would be a shell of itself in the one thing that matters most–college football.  But the Big 10 prides itself on academics, and Penn State would not suffer there.  There would still be the research consortium.  And all the non-revenue-generating sports.  Just does not seem likely.

But as long as we are talking remote possibilities, how ironic would it be if Penn State ended up separating from the Big 10 and joining the Big East.  A Big East without Pitt and Syracuse.  A Big East without West Virginia and Boston College.   In this crazy world where the Big 10 has 12 teams, the Big 12 has 10 teams, and the Big East is considering San Diego St., we have long since moved past the idea of things working out in an orderly fashion.  So, yeah, we might as well throw irony into the mix too.  We are beyond the point of being surprised.

Joe Paterno the Victim? Please.

After a week full of drama, someone at Penn State finally had the good sense to do the right thing.  Joe Paterno–his legacy tarnished and being further tarnished–has been fired.  There are so many stories on this front that no link is necessary.  If you have a TV or the Internet, you know by now.

In fact, you also know that the Penn State campus was the scene of a riot/protest.  Indeed, the students protested because Paterno will not be allowed to earn a salary sitting upstairs watching the game this Saturday.  Instead, like them, he must watch as a fan rather than a coach.  The horror.

As if Joe Paterno is a victim in this mess.

In fact, let’s just make a list here of the potential victims of this drama:

A. Those kids sexually abused by Sandusky after 2002. 

Most decent people would consider these folks the victims here.  Because of the lack of a criminal investigation, Sandusky was never investigated regarding the 2002 incident.  That is clear.  This meant that there was no opportunity for Sandusky to go to jail.  And without Sandusky in jail, other children were abused.  Regardless of the act–several more children were sexually abused.  They have had their lives permanently harmed.  What was done to them is life-shattering to an adult.  Slide that back to preadolescence and try to imagine how life shattering that would be.  Really… do we need to go on?  If you cannot fathom the victimization here, you are non-human.  5 or more people at Penn State had the opportunity to intervene and did not do so–leading to these victims.

B.  Joe Paterno.

According to Paterno’s supporters, he is somehow the victim of a witch hunt or a scapegoat.  For all those years, Paterno did so many good things.  How could he be fired when the guy who witnessed the rape has not been fired yet?  Paterno said he would resign at the end of the season (January) and now he has to stop coaching in November.  No more game days.  He complied with the letter of the law.  It’s not his fault that others neglected to report the rape.  Paterno had other things to do.

Compare (A) and (B).

Which one merits a protest?  Look, a lot of us have been to college.  Protesting is part of the growth process.  You learn that authority can be challenged.

A protest was inevitable.  But can any reasonable person conclude that (B) was worth protesting for, especially if the students already determined that (A) was not worth protesting for? If the Penn State students had any rational thought, they would have been protesting against Paterno.  Even legends have moral duties.  Frankly, legends may have greater moral duties sometimes.  Comes with the territory.  But they at least have the same moral duties as the rest of us.  Nobody is every too busy or important to report child abuse.  That’s a protest message the world could support.

And if any student were to claim “woe is me,” they can be rightfully looked at with disgust.  A total lack of perspective.  One that cannot even be dismissed by mere youth or unbridled exuberance.  So what if this Saturday’s game is coached by Tom Bradley, rather than Joe Paterno.  Is that your tragedy?  So what if you didn’t get to give Joe Paterno a standing ovation on Saturday?  You’ll get over it.  All of this certainly pales in comparison to being raped in Joe Paterno’s locker room.

The right to protest is part of our guarantee of free speech.  But so is our right to speak out against it.

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