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January 3, 2013

A Political Twist to the Penn State Scandal

In July, relying on the findings of the university's own report penned by former FBI director Louis Freeh, the NCAA imposed sanctions against Penn State, citing senior administrators' mishandling of the allegations against former assistant football coach Jerry Sandusky and the football culture that caused these administrators to look the other way. At the time, Pennsylvania governor Tom Corbett released a statement indicating that accepting "the serious penalties imposed today by the NCAA on Penn State University and its football program" formed part of the "corrective process" required to "repair the damage to this university."

The governor also expressed his gratitude to the NCAA for not imposing the "death penalty" (terminating Penn State's football program for a period of time), since such a move "would have also had a severe detrimental impact on the citizens of State College, Centre County and the entire Commonwealth of Pennsylvania."

At a Wednesday news conference announcing the state's intent to file suit to invalidate the sanctions, Corbett took a quite different approach. He accused NCAA leaders of inserting themselves "into an issue they had no authority to police under their own bylaws and one that was clearly being handled by the justice system." Corbett added that the sanctions were "harsh, unjustified and unprecedented."

The governor did not identify precisely when he concluded that sanctions he once had considered a necessary part of the corrective process had become harsh, unjustified, and unprecedented.

Up for Re-election Next Year

It's not hard to determine Corbett's likely motive for filing the suit. The governor needs a political boost: he's up for re-election in 2014, and he joins Maine's Paul LePage (who was elected with less than 40 percent of the vote) as the two most unpopular GOP governors in the country. And Corbett is particularly vulnerable on the Sandusky issue: Democrats have attacked him for slow-walking the criminal investigation during his tenure as attorney general, and his election as governor gave him a slot on the Penn State board of trustees, which so spectacularly failed in its oversight responsibilities. For the governor, the lawsuit allows him to build support among the Penn State alumni community while also potentially neutralizing a political vulnerability.

The suit itself raises interesting legal questions, particularly on matters of standing. Sports law expert Michael McCann wrote in si.com that for the NCAA, "this argument would be simple: Corbett does not work for Penn State, and the Pennsylvania government's relationship to Penn State is mainly based on financial assistance rather than in direction. Therefore, they lack the right to file a lawsuit over Penn State's sanction." (McCann suggested that either side could prevail if the case ever reaches trial.) In his filing, Corbett tries but largely fails to address the standing issue by discussing at great length the economic benefits to the state of Pennsylvania and its citizens from Penn State football games. But, of course, these football games continue unabated. The only game-related sanctions against Penn State were multi-year prohibitions on Penn State appearing in out-of-state venues: the Big Ten championship game in Indiana and in bowl games, none of which are based in Pennsylvania.

On the other hand, a successful lawsuit could threaten the NCAA's ability to discipline any of its member institutions, and the organization (which isn't exactly known for its general respect of due process rights) might have good reason to want to avoid discovery. The procedure used in the Penn State case--accepting a university's self-investigation (the Freeh Report) because the outside investigator had access to far more material than would be open to any NCAA investigation--was unprecedented.

Corbett's 43-page filing stresses this procedural angle--namely, that the NCAA relied on Penn State's own investigation rather than an NCAA investigation supervised by the body's Committee on Infractions in handing down the penalty against Penn State.


Hard to Root for Either Side

Corbett made (or at least attempted to make) one other procedural point, claiming that "the NCAA has punished Penn State without citing a single concrete NCAA rule that Penn State has broken, for conduct that in no way compromised the NCAA's mission of fair competition." Yet a bit later in his filing, the governor managed to contradict this claim, noting that "up until the revelation of the sexual abuse scandal that rocked the campus in November 2011, Penn State football's reputation for 'success with honor' made it the envy of its peers." In short, the governor conceded a key implication of the Freeh Report: that revelation of the allegations against Sandusky harmed the football program's reputation. Between 2001 and 2011, would Penn State have been able to maintain the competitive advantage it received in recruiting from its "success with honor" if its leaders had admitted in 2001 that the team's former state quarterback had witnessed the team's former star assistant coach raping a boy in the football locker room?

Beyond these two issues, the governor's filing is heavy on rhetoric (Corbett hailed "the students who help pay tuition by waiting tables filled with alumni and fans who patronize restaurants and bars before and after games") and short on substance. It's also marinated in the self-victimization theme that has been all too common among Penn State's most ardent defenders throughout this affair. Given all the negative publicity Penn State was facing, Corbett lamented, "the NCAA . . . was not about to miss an opportunity to bring Penn State down even further." The filing also suggested that Penn State was victimized by an organization that "consisted of presidents and chancellors of Penn State's competitor colleges and universities," and compared universities that accepted Penn State transfers to "children looting a newly broken piƱata."

In his public remarks, but not in his filing, Corbett also took issue with the Freeh Report. Mirroring the usual pattern of the report's critics--suggesting Freeh got things wrong without revealing what those things were--the governor proclaimed that the Freeh Report was "incomplete." (Naturally, he didn't say how the document was incomplete.) The Paterno family praised the governor for recognizing that the report manifested "an inexcusable rush to judgment"--without, of course, revealing how the report's multi-month process of research wasn't long enough.

This is an unusual lawsuit: on one side, the NCAA, a highly unsympathetic bureaucracy notorious for the lack of due process it grants to student-athletes; and on the other, a governor seemingly using the legal process to bolster his political standing among bitter-enders in his state. Is there a way for both sides to lose?

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