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Archive for the tag “scandal”

19 Sep 2012
2 Comments

The NCAA: Screwing Student-Athletes Whenever Possible

With the denial of John Raymon’s transfer waiver request, the NCAA has proven that, once again, it is a completely out-of-touch organization looking out for everyone EXCEPT the student-athletes it purports to care about.  The Confidential does not know all the details of why Raymon sought a waiver and does not care.  The bottom line is that a kid of roughly 20-years-old was denied the right of changing his mind in a way that virtually no other segment of American society has to endure. If he was a 50-year-old coach, the move from Iowa to Syracuse would be swift and without penalty.

Look, the Confidential understands the transfer rule generally.  If there was no transfer penalty, then the recruitment process would be ongoing year-after-year for players already on rosters.  If that happened, every star player at Iowa State could be “recruited” to finish his final two seasons at Nebraska.  And so on.  That’s just not how American society chooses to operate.

Except… that is EXACTLY how American society chooses to operate.  If an accountant wants to leave his firm, he can give two weeks notice.  If a lawyer wants to start her own practice, she can give two weeks notice and do so.  If an engineering major wants to transfer from Iowa State to Nebraska, he or she can do so without having to defer pondering differential equations for one year.  If the President of Iowa State wants to become the President of Nebraska, he can do so without “sitting out a year.”

Of course, the response to that is that the NCAA is not a normal business.  No, it is not normal.  It is simply made up of institutions, dozens of whom now make $20,000,000 a year in television revenue.  It is made up of institutions who do not balk at asking alums for money to build stadiums.  It is made up of institutions that are willing to pay coaches $1,000,000+ to tell a bunch of young adults what to do on the athletic field.  The NCAA is not “normal business” anymore, it is big business now.  So, NCAA, spare the world your 19th century morals.  You gave those up long ago.

Indeed, the hypocrisy is astounding.  The NCAA does not punish a coach who chooses to take a job at a new institution.  But it DOES impose a transfer penalty on the players that were recruited to play for that very coach at that very school.  So there is freedom of movement for adult coaches, but not the young adult players who foolishly chose to play for a guy that abandons the program.  And that is just the head coach.  What about the assistants that are on the front lines of recruitment and in many cases closer to the players.  Assistant coaches are even more likely to switch universities–voluntarily or involuntarily.  Just ask the coordinators at Houston and Wisconsin that were fired before mid-September.

So… if a 50-year old coach decides to abandon his $1,400,000 a year job at College A to take a $2,200,000 a year job at College B, he can do so without penalty.  If an 19-year old kid second guesses his decision to attend College A, and wants to transfer to College B, he must sit out a year.  Sure, the kid can still transfer.  But he cannot play his sport for one year.  The coach of that same sport need not sit out a year.  The NCAA is holding kids to decisions made on or before reaching adulthood, but allowing adults to have greater freedom of movement.

By the way, the NCAA has only recently decided that multi-year scholarships might be, say, a fair idea.  In the absence of multi-year scholarships, College A has been able to recruit a kid and decide after his first year that his athletic scholarship is revoked.  But the kid cannot revoke his own scholarship and seek one elsewhere.  Again, anything to screw student-athletes.  Fortunately, the vote to allow multi-year scholarships barely passed.  So at least now the kids restrained from transferring have a chance to bind the schools that bind them.

Of course, now the NCAA might want to drop the term “student-athlete.”  The Confidential is not sure what term will be used to describe who the NCAA screws in the future, but the screwing will likely continue unabated.   That’s just what the NCAA does.

 

Posted by acaffrey in Other Sports, Scandal, Uncategorized and tagged , , , ,
08 Sep 2012

Al Pacino to Play JoePa In Movie? The Confidential Predicts the Rest of the Cast…

Word on the Interwebs is that Al Pacino is attached to play Joe Paterno in a movie based on Joe Posnanski’s biography Paterno.  Ok, so be it.  But the Confidential cannot help wonder who will play all the other major players in the Penn State scandal.  Here are the Confidential’s recommendations.

To make life easier, we’ll borrow from the SI.com article listing the key individuals involved with the scandal:

JERRY SANDUSKY:

Jerry Sandusky

THE CONFIDENTIAL RECOMMENDS:

It’s hard to argue with the great work that William Shatner has done with the Priceline.com commercials.

FORMER PENN STATE PRESIDENT, GRAHAM SPANIER:
Graham Spanier

THE CONFIDENTIAL RECOMMENDS:

How about Sir Ian McKellan… from Gandalf to Graham.  Just needs to lose the hat and perhaps darken the hair a bit.  Child’s play for Hollywood makeup artists.

Ian McKellen Picture

LOUIS FREEH, AUTHOR OF THE FREEH REPORT THAT LED TO NCAA SANCTIONS:

Louis Freeh

THE CONFIDENTIAL RECOMMENDS:

Sydney Pollack was made for this role.

Sydney Pollack Picture

But with his unfortunate passing, we’ll go with someone a little more Italian-American, Armand Assante.  He will probably have a nice watch, which is essential for the role.

 

TIM CURLEY, FORMER PENN STATE ATHLETIC DIRECTOR:

Tim Curley

THE CONFIDENTIAL RECOMMENDS:

Victor Garber, best known as Agent Jack Bristow on Alias.  Of course, he was also in Titanic–which had a more successful ending than Paterno’s career.   All he needs is some glasses.

Victor Garber Picture

GARY SCHULTZ, FORMER VICE PRESIDENT OF BUSINESS AND FINANCE:

Gary Schultz

THE CONFIDENTIAL RECOMMENDS:

Jeffrey Jones, best known as Principal Rooney from Ferris Bueller’s Day Off

We also might have considered John Banner, who played Sergeant Schultz on Hogan’s Heroes.  But he passed away 30 years ago.  Oh well.

MIKE MCQUEARY, ASSISTANT COACH/EYEWITNESS:

Mike McQueary

THE CONFIDENTIAL RECOMMENDS:

Crap, they don’t hire red-headed actors anymore.  Ron Howard ruined it for everyone.  By default, the Confidential will go with some guy named Damian Lewis that most of you have probably heard of.

 

SUE PATERNO, FIRST LADY OF PENN STATE FOOTBALL:

Sue Paterno

THE CONFIDENTIAL RECOMMENDS:

Talia Shire.  She was the wife in Rocky.  She was the sister in The Godfather.  I think she is required to be the wife in any movies regarding Italian-Americans.  She’s probably too young, but so is Al Pacino.  Whatever.  Not the Confidential’s problem.

NCAA PRESIDENT MARK EMMERT:

THE CONFIDENTIAL RECOMMENDS:

Jon Voight.  C’mon, he can pull it off.

 

What do you think?  Any better suggestions???

Posted by acaffrey in Football, Non-Serious, Sarcasm, Scandal and tagged , , , ,
04 Sep 2012
1 Comment

North Carolina Academic Issues: No Punishment Looming For Now

Previously, the Confidential observed that North Carolina’s academic “scandal” seemed highly overblown.  Then, the Confidential had some fun at North Carolina’s expense.  But now it looks like North Carolina has a good chance of being cleared of any wrongdoing.  Indeed, it issued a statement yesterday indicating that the university and the NCAA did not find any violations.  This means no punishment is currently looming for North Carolina.

The key parts of the statement are as follows:

The University first notified the NCAA that it had identified potential academic issues involving student-athletes in African and Afro-American Studies courses on August 24, 2011.  We asked the NCAA to join us in our investigation of these issues, and they agreed to do that. A member of the NCAA enforcement staff traveled to Chapel Hill several times in the fall of 2011 and participated throughout the investigation.

* * *

Based on the joint review, UNC and the NCAA staff concluded there were no violations of current NCAA rules or student-athlete eligibility issues related to courses in African and Afro-American Studies. As a result, the NCAA did not add any allegations or include this issue during the University’s appearance in October 2011 before the Committee on Infractions.

* * *

On Aug. 23, 2012, University Counsel Leslie Strohm and Senior Associate Dean Jonathan Hartlyn provided an update to the enforcement staff.  The NCAA staff reaffirmed to University officials that no NCAA rules appeared to have been broken.

The boldface was added by the Confidential.  The import is that the NCAA will not be punishing North Carolina.

Yet.  Indeed, the statement concludes that North Carolina will keep the NCAA informed as developments warrant.  So, if anything new develops, the Tar Heels may yet run into trouble.

But, for now, Tar Heels fans can rest easily.

Posted by acaffrey in ACC only, Scandal and tagged , ,
18 Aug 2012
5 Comments

North Carolina Academic Probe: Shocking New Details Emerge

(Where FSU Fans Think All The ACC Evil is Concentrated, North Carolina)  Well, the Confidential may end up having the proverbial “egg” on its face.  The Confidential was just defending North Carolina in its academic probe.  However, shocking new details are emerging that suggest the Confidential was, simply, 100% wrong.  Please accept our apology.

The reason for this about-face is that the Confidential was able to obtain a copy of the secret North Carolina Athletic Department’s Course Guide.  Although the Confidential promised its fictional sources not to distribute a copy of the guide, the Confidential does have permission to provide some excerpts.  Judge for yourself just how ridiculous the course offerings were for athletes at North Carolina in recent years:

  • ENGLISH 106: LIMERICKS, HAIKU, and BATHROOM GRAFFITI.  Description: Not just for the Irish, Japanese, and people who use urinals, students in this class will hone their creative skills by writing short, attention getting pieces.  This class involves a midterm, as well as a field trip involving bar hopping so that students to demonstrate their skills in real life situations.  Note: This class is a prerequisite for ENGLISH 107: RAP FOR WHITE GUYS/ADVANCED RHYMING.
  • BIOLOGY 108: NATURE -n- STUFF.  Description: This class provides students an opportunity to check out nature.  Whether you like looking at the sky, looking at animals, looking at plants, or looking at rocks, you’ll get to check it all out in this class.  Note: Now that the Lab requirement has been removed, this class is only 3 credit hours.
  • PSYCHOLOGY 221: STRIPPERS, LEVEL 1.  Description: The strippers series of classes focuses on trying to determine why strippers became strippers, a complex interplay of both psychology and sociology.  The entry level class is tailored so that students can begin to identify strippers and distinguish them from non-strippers.  Note: Class Fee of $50, which provides a 3-month pass to The Chapel Hill Gentlemen’s Club, two non-alcoholic beverages, and one lap dance.
  • STATISTICS 111: SPORTS STATS.   Description: The use of statistics to measure performance in sports is well known.  This class focuses on how to calculate various sports statistics, including (a) simple categories, such as wins and touchdowns; (b) average categories, such as points per game; and (c) advanced stats, such as slugging percentage.  Note: Prerequisite for Sports Stats II, which covers earned run average, QB rating, and win-shares.
  • ART 108: LEGOS(R).  Description: Once merely a child’s toy, Legos are now a well-recognized medium for artistic expression.  Students will have to demonstrate the ability to both secure the blocks together and to do so in a way that makes some sort of sense.
  • COMMUNICATIONS 122: DISCUSSING TV.  Description: Students will have the opportunity to survey and analyze television shows and discuss them with other classmates.  Note: This class requires biweekly 140 character essays to be submitted via twitter and/or text message.
  • HEALTH 114: JOCKS FOR JOCKS.  Description: Beginning with a historical look at the athletic protector and protective cup in primitive times, students will study the evolution of these safety devices as well as the proper way to purchase, wear, and clean same.

And the Confidential did not even bother to print the descriptions for classes, such as HISTORY 155: NEWS TODAY; ECONOMICS 144: AGENTS AND BOOKIES; GEOLOGY 113: GEODES AND MARBLES; and SOCIOLOGY 130: UNDERSTANDING YOUR POSSE.  Needless to say, this curriculum guide truly does call into question the education that athletes are receiving at North Carolina.

Posted by acaffrey in Non-Serious, Sarcasm and tagged , , ,
17 Aug 2012
2 Comments

North Carolina Academic Probe: Much Ado About Nothing?

When it comes to academics, it is hard to argue that the Atlantic Coast Conference is second to only the B1G in academic prestige.  On the football field, the ACC teams have had their fair share of NCAA trouble lately, with issues at Miami and North Carolina garnering the most attention.  An academic fraud situation at North Carolina is even more troubling.  Or is it?

The details of the North Carolina academic issue and its status was recently summarized by ESPN as follows:

But as an offshoot of the NCAA investigation, a UNC internal probe found that 54 AFAM [African-American Studies] classes were either “aberrant” or “irregularly” taught from summer 2007 to summer 2011. That included unauthorized grade changes, forged faculty signatures on grade rolls and limited or no class time.

* * *

A four-member UNC Board of Governors panel is reviewing UNC’s original investigation into the AFAM department. The State Bureau of Investigation is looking into whether any computer fraud, forgery or conspiracy to commit those crimes in the AFAM department took place. June’s faculty report called for an independent commission of outside experts in higher education to take a forward-looking review of athletics and academics at the university.

Meanwhile, the NCAA, fresh off imposing sanctions on the football team for non-academic reasons, is going to have an interest in the North Carolina self-study.

The Confidential does not want to defend North Carolina, but this issue seems very overblown.  About half of the students in these easy classes were athletes.  The idea of classes like “Rocks for Jocks”  was invented long before ESPN and billion-dollar TV deals.  Is one easy class REALLY the end of the world?

Frankly, even a non-athlete can obtain a college degree without ever truly challenging himself or herself.  That is part of the beauty of college–you have a lot of freedom to determine what you want to learn.  Some students become engineers or architects and devote massive effort into difficult undergraduate curricula.  Other students (ahem, the Confidential, ahem) choose to take a broader spectrum of classes (i.e. not challenging themselves sufficiently).  But there is always graduate school.  And part of college is the learning that takes place outside the academic corridors.  So taking one or more easy classes is actually quite normal.

The Confidential believes that the fraud issues are certainly worth looking into.  Athletes’ grades should not be changed.  Everyone has an obligation to be ethical.  But if this is just a matter of steering athletes towards easier classes, it needs to just go away.

 

 

 

Posted by acaffrey in ACC only, Football, Scandal and tagged , , , ,
03 Aug 2012
7 Comments

Miami Hurricanes Facing Truly Unprecedented Penalties!

(BORING METROPOLIS IN MIDWEST)   Emboldened by the support it received from all NCAA Presidents following the imposition of harsh penalties against Penn State Univeristy, the NCAA’s executive committee is apparently set to announce penalties for the Miami Hurricanes that are even more unprecedented.  The Confidential has learned that the executive committee is set to offer Miami the choice of (a) the death penalty to its football team for three years; (b) actual death to all people affiliated with the University; or (c) the following more overreaching and creative penalties than those imposed on Penn State:

FOOTBALL SANCTIONS:

  • The football team must hire Greg Robinson and place him in charge, completely and unequivocally, of the defense from 2013 to 2015, and then again in 2017 (just to offset the obvious gains that will be made in 2016).  Further, Greg Robinson will be prohibited from using stuffed animals to motivate his defense for one year.  He will, however, be allowed to read children’s books as desired
  • The football team is required to use morbidly obese female “hosts” for all official and unofficial recruiting trips.  Further, Janet Reno will be appointed as a special consultant to the program to ensure that no host with a BMI of less than 40 comes close to hosting a recruit
  • The football team must change its colors to pink and sky blue
  • The football team must stay in the Atlantic Coast Conference for the next 30 years, even if Florida State leaves.  Also, Miami cannot vote against South Florida or Central Florida taking Florida State’s place in the ACC
  • The football team must continue to lose to Boston College annually
  • Lane Kiffin is allowed to take the team’s best player every year, regardless of where he coaches
  • SCHOLARSHIP LIMITS: For all odd years from 2013 to 2017, the football team can only sign 100% Caucasian defensive backs and running backs, and must give 1 scholarship per year to a female kicker (provided she is not hot like Kathy Ireland).  During even years from 2014 to 2018, the team must give 1 scholarship per year to a quarterback from Samoa, 2 scholarships per year to offensive linemen of 100% Chinese descent (provided they are not able to do cool thinks like in the movie Big Trouble in Little China), and 1 scholarship per year to a non-human.
  • BOWLS: The above restrictions should take care of bowl eligibility.  If not, Miami is only allowed to go to bowl games if they have a tie-in with the Big East (if any) or take place in crappy places like Idaho or Detroit.

BASKETBALL SANCTIONS:

  • Upon further review, the basketball team must continue doing whatever it is currently doing to remain entirely irrelevant
  • Just in case, John Calipari is allowed to take the team’s best player every year, regardless of where he coaches

ATHLETIC DEPARTMENT/UNIVERSITY-WIDE SANCTIONS

  • The football team must pay annual fines of $10,000,000 dollars and 10,000,000 Cuban pesos, which will be earmarked for a pretend charity that devotes itself to something along the lines of rehabilitating prostitutes and/or supporting retired NCAA Presidents, from 2013 to 2015.
  • Effective immediately and permanently, Miami must refer to itself as “Miami (FL)” and Miami of Ohio is allowed to refer to itself as simply “Miami”
  • Luther Campbell loses Professor Emeritus status until 2018

At present, it is unclear what option will be selected by Miami.  Needless to say, the athletic culture in Miami is about to change radically.

 

Posted by acaffrey in Football, Sarcasm and tagged , ,
01 Aug 2012
5 Comments

The NCAA Hypocrisy

Fact: The University of Southern California (“USC”) is currently on probation for NCAA violations and forced to field a team of just 75 scholarship athletes.  The NCAA punished USC for infractions arising out of players getting special treatment.  Message: If you put your athletics programs above the rest of the University, your school is out of balance and the NCAA needs to step in to restore that balance with penalties.

Fact: Penn State University was just punished by the NCAA for putting football apparently above other considerations.  As punishment for Penn State, any of its players can transfer.  Message: If you put your athletics programs above the rest of the University, your school is out of balance and the NCAA needs to step in to restore that balance with penalties.

Fact: Silas Redd is going to transfer from one punished school, Penn State, to another punished school, USC.  While USC is bowl-eligible, they are still being penalized.  Message: The NCAA is a hypocritical organization.

If the NCAA had any desire to avoid hypocrisy, they should have said that Penn State players can transfer to any school not currently on probation.  The schools on probation should be focusing on improving their overall athletic department’s compliance with NCAA rules.  The schools on probation should NOT be focusing on improving their football product by taking on a player fleeing the sinking ship of Penn State.  Wasn’t that the whole gist of the press conference by the NCAA?

If Silas Redd wants to leave PSU, so be it.  Let’s not begrudge a kid for taking a step to help himself.  If he blows out his knee in August, nobody will be passing a collection plate for him on either coast.  He has to look out for himself.

But to go to USC?  What about the schools that are NOT on probation?  Many schools could have used him.  The NCAA should have forced Redd to pick a football factory that either plays clean or has not quite had its dirtyness exposed.

The NCAA dropped the ball on this one.  Two steps forward, one step backward for the NCAA in allowing this move.

 

Posted by acaffrey in Football and tagged , ,
28 Jul 2012
1 Comment

The Penn State Penalties and the ACC

The world has had plenty of time to digest the NCAA’s penalties against Penn State.  While there is no question that the situation in Penn State was factually unprecedented, the NCAA will soon turn its attention to its more familiar tasks of punishing schools for secondary and major violations.  The ACC cares.  After all, Miami–one of the ACC’s marquee football programs–is likely “next up” in feeling the wrath of the newly emboldened NCAA leadership.

Actually, it should be noted that the NCAA, via its Presidents, imposed a new model for sanctions that imposed tougher penalties before the Penn State penalties were announced.  See http://www.cbssports.com/mcc/blogs/entry/24156338/34441353.  In many instances, the penalties for violations will be tougher than what USC received for its penalties even!   This new model is effective as of August 1, 2012.  It is not clear whether these new penalties will apply to Miami, who does not expect to receive its penalties until next Spring (i.e. 2013).

But those penalties should be fairly severe.  Miami’s violations occurred over a several-year period and were well-publicized.  Although it is not clear that the evidence is as strong as claimed by incarcerated-informant Nevin Shapiro, there are recent reports that violations continued after Al Golden took over as coach.  Needless to say, there is going to be a lot of fingernail chewing in Coral Gables until the NCAA issues its ruling.

And, lest we forget, North Carolina was just issued penalties by the NCAA in May 2012.  Specifically, the NCAA ordered these as just part of its penalty for football violations:

  • Three years of probation from March 12, 2012, through March 11, 2015.
  • Three-year show-cause penalty for the former assistant football coach prohibiting any recruiting activity. The public report contains further details.
  • Postseason ban for the 2012 football season.
  • Reduction of football scholarships by a total of 15 during three academic years. The public report includes further details.
  • Vacation of wins during the 2008 and 2009 seasons (self-imposed by the university). The public report includes further details.

There is Internet scuttlebutt that a basketball scandal may now be brewing in Chapel Hill.  If so, the Tar Heels may find themselves in even bigger trouble.

And who knows what else is lurking out there for the NCAA to consider.  Although Penn State is not part of the ACC, the ACC needs to care about how the NCAA is punishing schools.

Posted by acaffrey in Other Sports and tagged , , ,
26 Jul 2012
9 Comments

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.

Posted by acaffrey in Football, Other Sports and tagged , , ,
25 Jul 2012
3 Comments

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. http://www.law.cornell.edu/wex/procedural_due_process.  Substantive due process generally “prohibits the government from infringing on fundamental constitutional liberties.”  http://legal-dictionary.thefreedictionary.com/Substantive+Due+Process.

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!

Posted by acaffrey in Football, Uncategorized and tagged , , ,

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