Reining in the NCAA

One of my least favorite organizations has always been the National Collegiate Athletic Association, which is, by any account, blessed with inordinate power over intercollegiate athletics. It is how being given a taste of its own medicine in a lawsuit that Governor Tom Corbett has filed on behalf of the state of Pennsylvania, alleging that the NCAA overstepped its powers in imposing sanctions on Penn State in the wake of the Jerry Sandusky scandal . Everyone should take notice of this case, as I note the New York Times has this morning. 

True to form, the Times has written an editorial that denounces the lawsuit in the strongest possible terms. It certainly has a point that it is odd that the suit is brought by the governor on behalf of the state, with university officials remaining mute on the sidelines. Indeed, this entire matter could well be dismissed on the grounds that the state has no standing to sue if Penn State will not. 

Yet, by the same token, it would be a serious mistake to assume that the NCAA, and its President, Dr. Mark A. Emmert, should receive a free pass if the lawsuit goes away for this reason. All investigations have two sides, and what the Times ignores is the charges of bad behavior against the NCAA that are wrapped up in this odd lawsuit. 

To be sure, the NCAA has been subject to multiple antitrust suits for its efforts to control, for example, the television market for college football, for which it has been slapped down by the Supreme Court. But the dangers of monopoly power do not only arise in connection with economic arrangements, but also with respect to matters of fundamental fairness that are comprised in the notion that no person should be deprived of life, liberty, or property without due process of law.

The words chosen echo those found in the United States Constitution, where it is understood that these procedural protections are afforded against the actions of the federal and state governments. Normally, private associations are free to operate as they choose, without being burdened by any form of constitutional constraint. The explanation for that dichotomy lies in the simple fact — not true for the NCAA — that most associations operate in competitive markets, so that individuals who are denied access to one firm by its house rules can decide to go elsewhere. 

The NCAA, however, is not just another private organization. It occupies an intermediate status because of its power to discipline all the colleges who are its members for infractions of its rules. It is, so to say, the only game in town, so that the college that does not want to play by its rules has no other association to which it can turn. It is for just this reason that the due process claims merge into the antitrust claims that the complaint urged.

Quite simply, it is the presence of that strong coercive power that should impose on the NCAA a correlative duty of fair treatment of those parties on whom it wants to impose sanctions. In dealing with this issue, the matter is most troublesome not because of the sanctions that befell Jerry Sandusky, who was properly sentenced to 30 to 60 years in prison for what he did. What is at stake here is the blowback of the Sandusky affair on Penn State’s athletic programs.

One of the constant difficulties in dealing with criminal conduct is the extent to which the wrongdoing of individuals should be imputed to the institutions that they represent, so that these are subject to an extensive set of sanctions that hurt many innocent members of those organizations. That problem is most acute with Penn State, for the sanctions will fall on the next generation of coaches and students, who had nothing to do with the terrible actions that took place before they arrived.

Now, it can be said with much force that individual sanctions against wrongdoers do not suffice, so that strong penalties can be imposed on the institution to see that its responsible members take care to police the internal operations of their business. But even if we accept that argument, Governor Corbett’s complaint draws blood because it stresses that the NCAA did not follow its own internal procedures before meting out the punishments, and it did not specify the rule or rules that were violated by Penn State. 

More concretely, the complaint lodges very serious charges against Dr. Emmert for circumventing all the procedural safeguards that are built into the NCAA Manual that vests control over enforcement of NCAA rules in a Committee on Infractions, not in the President of the operation. The complaint also gave instances of other serious actions, including murder, that did not spark this type of institutional response. The inconsistency only aggravates the want of due process.

Wholly apart from this lawsuit, these issues should not be brushed aside. In my judgment, it is not sufficient to say that imperative necessity justified the departure from standard rules in ways that allow the President and his confederates to impose serious sanctions for the violation of what the complaint calls “vague principles of ‘institutional control,’ and ‘individual integrity’”. Indeed, precisely the opposite is the case. On serious criminal charges, vagueness is always to be disfavored, and the legal system, in the name of due process, offers greater protection than it does in dealing with minor offenses. 

Why should the NCAA be any different? Perhaps it could impose temporary sanctions to make sure that a bad situation does not get worse, but there is no need for a rush to judgment to impose a $60 million fine on the institution, a four-year ban on postseason bowl games, or a reduction in scholarships. There is ample time to make those decisions after gathering all the evidence from all sides under the standard rules of procedure that are used elsewhere before imposing sanctions of the magnitude involved in this case.

If this claim draws blood, then what is the best remedy? Here, for starters, the entire set of sanctions should be vacated until some independent panel actually hears the case. I would not trust the same people in the NCAA who ran the first hearing to conduct the second. There is too much of a risk that they will just reach the same conclusion. But, by all means, refer the matter to independent arbitrators to get a better fix on the situation. 

I don’t want to prejudge the merits of the case. But the shoddy procedures used by the NCAA are unworthy of any organization that wields such enormous power. President Emmert deserves more than a slap on the wrist. From this point of view, it appears as though he has forfeited the moral high ground. It would be best for all concerned if Dr. Emmert were to resign. It is only not Penn State that needs (as it has acknowledged on many occasions) a thorough housing clean. The same is true of the NCAA.