Steve Thompson quoted in Chicago Daily Law Bulletin article, "Lawyers express doubts on NCAA sanction process"
Local lawyers agreed that PennState University deserved punishment for the negligent role a report said it played in Jerry Sandusky's sexual abuse of children.
But the NCAA faced a unique problem. Its rules do not expressly describe how to punish what occurred at Penn State.
"This is so egregious that nobody thought of it when they wrote the rules," said Eldon L. Ham, an IIT Chicago-Kent College of Law adjunct professor of sports law and society.
So, the NCAA worked up a list of disparate rules it said Penn State broke. They range from a lack of institutional control to its employees not displaying "exemplary conduct" in the Sandusky case.
Instead of its traditional approach of leveling penalties through its Committee on Infractions, NCAA President Mark Emmert levied a $60 million fine, a four-year ban on bowl games and scholarships cuts to Penn State.
He did it all under a disciplinary process unique to this case.
Local sports lawyers who deal with college infractions posed a question: Can the NCAA do this?
The answer in the Penn State case is yes — at the very least because the university agreed to the sanctions, lawyers said.
But they also said the NCAA's legal rationale might not hold up in the future if a university facing similar sanctions puts up a fight.
"(The NCAA) have cited a provision authorizing this …, which I'm not sure really fits," said Steven J. Thompson, a partner at Ungaretti & Harris LLP who represents universities in the infractions process.
The NCAA issued its punishments in a "consent decree," which Penn State's president signed. The NCAA said the power to do that came from a provision in its bylaws that says the executive committee "act(s) on behalf of the (NCAA) by adopting and implementing policies to resolve core issues and other (NCAA)-wide matters."
Thompson said he took issue with aspects of that justification.
"I'm not sure this is a policy, this really seems to be a punitive action," he said. "I'm not sure it's some core issue and I'm not really sure this is an (NCAA)-wide matter. I think these are actions that really took place at one NCAA institution."
Ham said one possible legal complaint to this new process could arise from the NCAA straying from its traditional rules in punishing member organizations.
Rather than providing due process to its member organizations, private associations like the NCAA must follow a "fundamental fairness" doctrine, Ham said. That requires the NCAA to follow the guidelines it created for itself and to provide "some kind of opportunity" for an appeal.
In the Penn State case, Ham said some people may argue that the NCAA sidestepped its traditional enforcement procedures.
In addition, the NCAA did not say how an accused party could mount a defense, he said, which together "would provide some grounds for a lawsuit," Ham said.
Stuart L. Brown, Indianapolis-based of counsel at Ice, Miller LLP and counsel to universities, said an NCAA-wide vote on whether to expel or suspend a school could prove the closest way to appeal an executive committee ruling.
Different from the so-called "Death Penalty," where a team sits out a season or more, the membership vote Brown described would lead to the entire university leaving the NCAA, he said.
Brown said he suspected that both the NCAA and Penn State "reached a pre-agreement on the basic scope of what these sanctions and corrective measures would be so that they were extremely severe and made the point. But (also so) that kind of disagreement between (Penn State) and the (NCAA) would not occur, because I don't think that would have served anybody's interest."
Timothy L. Epstein, chairman of SmithAmundsen LLC's sports law practice and counsel to universities, said that although these arguments prove moot in the Penn State case, university leaders still want to know how this might affect future infractions cases.
"The worry is that the administrative law process that the NCAA has set up, including the infractions process, is now thrown out the window," he said.
Epstein said existing precedent for how the NCAA handles recruiting violations and doping allegations, for example, seem likely to stay in place.
"There's precedence for all of that, from no punishment to the death penalty," he said. "They've really never seen anything like Penn State before and hopefully will never see it again."
Reprinted with permission from Law Bulletin Publishing Company.