Former Penn State Officials Gary Schultz and Tim Curley. (AP)
If recent reports that Joe Paterno and Penn State worked together to cover up what they knew of Jerry Sandusky’s shower activities with young boys are true, sports law experts who spoke with The Patriot-News Saturday afternoon say there is merit for the Penn State football program to receive the death penalty.
The death penalty is the harshest punishment the NCAA can mete out. To date, only one Division I football program — Southern Methodist — has been dealt that punishment. It prohibits a program from competition for at least a year and usually is imposed only after repeated rules violations.
University of Toledo sports law professor Geoffrey Rapp said that until Saturday he didn’t think the crimes that resulted from the Jerry Sandusky child sex abuse scandal at Penn State fell under the purview of the NCAA.
But that changed with CNN reporting the discovery of an email chain from February 2001 where Penn State officials agreed to speak to Sandusky about “future appropriate use of the University facility” and then contact officials at The Second Mile, Sandusky’s charity, and the Department of Welfare about the case. A day later, after talking to Joe Paterno, they had changed their minds.
According to Rapp, if the football coach talked the athletic director, his direct superior, out of handling the situation a certain way, that presents a problem under NCAA regulations.
"Once you start hearing that the athletic department isn't responding to the chain of authority properly, that's an institutional control problem, and the NCAA is built around protecting that institutional control," Rapp said. "The problem is if Paterno was able to tell the school what to do and the school doesn't have in place the right kind of hierarchy from the NCAA's perspective."
"Right hierarchy" meaning the football coach reports to the athletic director, who reports to the university administration.
"If the coach has the final say, that's against NCAA rules," Rapp said. "The president has to be in charge of athletics, not the other way around."
"If they were trying to put something in place, and Paterno stopped it, that's a big problem."
This presents a very different scenario from what the NCAA appeared to be facing before: a situation where Sandusky, a former Penn State assistant football coach, had broken the law.
In that case, as long as it's not connected with the program, it's not the NCAA's concern," Rapp said.
Michael McCann, Director of the Sports Law Institute at the University of Vermont, saw another potential violation of NCAA bylaws.
"There's language in the NCAA regulations that requires ethical behavior by coaches," McCann said. Have we seen that enforced? No. But there's always a first time, and this could be a situation where the language of the regulations could be used in a way that it hasn't in the past." At this point, McCann said, the death penalty is a legitimate worst-case scenario for the Penn State football program.
If these emails are correct, athletic administrators knew about it but chose to not do the right thing or the legal thing, McCann said. I think, for the NCAA, this could be a defining moment.
WHAT WILL THE NCAA DO?
Even though the sports law experts contacted by The Patriot-News agree that the NCAA would be within its rights to impose the death penalty on Penn State at this point, they also say that this probably won't happen.
Rapp said he thinks the university probably will avoid the death penalty as long as it cooperates with the NCAA in its investigation and volunteers to institute self-imposed penalties.
Alan Milstein, a sports lawyer at the Moorestown, N.J.-based law firm Sherman Silverstein, who has represented athletes such as former Ohio State running back Maurice Clarett and NBA star Allen Iverson, said HE believes those penalties can't be retrospective in nature, such as an order to vacate wins.
Instead, he says they must affect the program going forward perhaps bowl suspensions or scholarship restrictions.
Regardless of what the NCAA does, the consensus is that it cannot afford to sit and do nothing.
With the email chain that has just surfaced, the argument that the Penn State scandal falls outside NCAA jurisdiction because it is criminal in nature no longer holds water.
I don't know how anybody can even make that statement, Milstein said. At the time [Sandusky] was charged and convicted, he's just been terminated as coach emeritus, using Penn State facilities as lord to these kids, taking them to bowl games and introducing them to players.
This took place in the Penn State locker room. You have an assistant coach who saw it and reported it to the vice president of finance. This was integrally a part of the Penn State football empire.
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Related topics: jerry sandusky, joe paterno, penn state, penn state football, tim curley
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