Should NCAA Deliver Death Penalty to Penn State, Ban Joe Paterno?

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NCAA President Mark Emmert told Tavis Smiley of PBS that his organization is looking into whether or not the Penn State University football program will be sanctioned based on Jerry Sandusky's abuse of young boys on the school grounds. At this time, Emmert has not made a decision on the matter.

"What the appropriate penalties are — if there are determinations of violations — we'll have to decide," Emmert said, sounding very familiar to Yoda. "And we'll hold in abeyance all of those decisions until we decide what we want to do with the actual charges, if there should be any."

Emmert's remarks were made after a scathing investigatory report of Penn State was released by Louis Freeh, former head of the FBI. The Freeh report — as it's being called now — indicts the top Penn State officials in an unflinching manner: “Four of the most powerful people at The Pennsylvania State University — President Graham B. Spanier, Senior Vice President-Finance and Business Gary C. Schultz, Athletic Director Timothy M. Curley and Head Football Coach Joseph V. Paterno — failed to protect against a child sexual predator harming children for over a decade," Freeh wrote. "These men concealed Sandusky’s activities from the Board of Trustees, the University community and authorities. They exhibited a striking lack of empathy for Sandusky’s victims."

Even with the horrific abuse that Sandusky perpetrated upon his victims, the NCAA may not file charges against the university. Whether Emmert chooses to pursue sanctions against Penn State depends on whether or not the NCAA determines that the abuse — and cover-up — are related to the football program. 

Emmert recognized his charge of determining if this is a football issue. "This is completely different than an impermissible benefits scandal than what happened at SMU," Emmert remarked.

What Emmert is referring to is when the NCAA delivered the "death penalty" (canceling an entire season) to SMU for having a fund that paid players for over a ten-year period. SMU's football program was shut down for two seasons (one by the NCAA and one by the school's choice). The school had only a single winning season in 20 years after getting the "death penalty."

The impermissible benefits issue is one the NCAA has dealt with for decades. It's nothing new for Emmert. The Penn State abuse, however, is an issue that breaks new ground within the halls of the NCAA. As Emmert admitted, "It's an unprecedented problem." 

So while the problem may be unprecedented, the question remains: is it indeed the NCAA's problem, or one that is better handled by prosecutors in a courtroom? The answer hinges on how related the abuse was to the football program.

The ties to the football program are obvious. Sandusky served as a defensive coach for the Nittany Lions for 30 years ('69-'99). Joe Paterno was the head coach of Penn State since the release of the very first episode of Star Trek and networks began televising in color. And of course, President Graham Spanier and Senior Vice-President Gary Schultz oversaw the entire university, including the football program and police. 

Then the question must be asked: is Sandusky's abuse — and Paterno, Spanier and Schultz' cover-up — attributable back to the football program because of their ties to the program? In some cases, the answer would be no. The answer depends entirely on whether the act at issue was an isolated incident of unforeseeable behavior. If the abuse was something the Penn State officials could not have foreseen, then they will be left bowed, but not broken. 

The Grand Jury identified abuse occurring as early as 1994 while Sandusky was defensive coordinator with the Nittany Lions. The Freeh report stated that Sandusky perpetrated at least 20 acts of abuse on young boys on Penn State's campus while he was coaching. The report also stated that Paterno, Spanier and Schultz first became aware of Sandusky's pedophile tendencies in 1998 when the mother of an 11-year-old boy complained to police that Sandusky abused her child in the showers at Penn State. 

So in 1998, Paterno, Spanier and Schultz were put on notice. They knew there might be a problem with Sandusky. After all, Freeh got ahold of a note written by Schultz that stated, "Is this the opening of Pandora's box? Other children?"

Sandusky Note1

If Paterno, Spanier and Schultz didn't believe Sandusky was a pedophile in 1998, they cannot deny that they knew in 2002. In 2002, then graduate assistant coach Mike McQueary personally observed Sandusky sodomizing a 10-year-old boy in the football locker room showers. McQueary informed Paterno, who then informed Spanier and Schultz. With the 1998 investigation serving as a backdrop to their emails, The Trio (Paterno, Spanier and Schultz) concocted a plan to throw a veil of secrecy over Sandusky and his abuse.

Yes, Sandusky and The Trio's behavior is inexcusable, but does it give the NCAA the right to discipline the football program? The answer to that question is an unequivocal, yes. Not only does the NCAA have the right to discipline Penn State, it has an obligation to do so.

Even giving Sandusky and The Trio the benefit of the doubt after the 1998 investigation (after all, no charges were filed based on the mother's report), there is absolutely no reasonable argument against the Penn State officials being aware of Sandusky's abuse after 2002. From that date on, Penn State becomes liable for Sandusky's actions. 

Prior to 2002, an argument can be made that Sandusky's action was entirely unforeseeable and an isolated incident. In fact, had Paterno, Spanier and Schultz went public and fired Sandusky at that time, they would have had the public support, not their scorn. Instead, we have emails like the one sent from Curley to Spanier where Curley indicates that it was Paterno who convinced him not to expose Sandusky as a pedophile:

"After giving it more thought and talking it over with Joe [Paterno] yesterday, I am uncomfortable with what we agreed were the next steps. I am having trouble with going to everyone, but the person involved. I would be more comfortable meeting with the person.. tell him the information we received... and tell him we are aware of the first situation."

And with that email — and Spanier's response agreeing with Curley — liability attached to Penn State and it's football program. After all, even following retirement, Sandusky was awarded emeritus status at the university and given full access to the football facilities, including the Lasch building where he committed most of his abuse. 

And regardless of where the abuse occurred, the focus needs to simply be on who committed the NCAA infraction and what that person's status was with the University when the infraction occurred. Because the infractions do not have to take place at the school in order to punish the school (Ohio State University football players received tattoos off-campus and were sanctioned). 

In this case, Sandusky was either an active coach or retained emeritus status with an office and full access to the Penn State football facilities while he committed sexual assault on young boys. Paterno knew about the abuse and was instrumental in concealing it during his tenure as head coach of the Nittany Lions. Those facts anchor the abuse to the football program and should sink it in its entirety for several years. 

In listening to Emmert's comments, he tends to agree: "There's been people who said this isn't a football scandal. Well, it was more than a football scandal, much more than a football scandal. It was that, but much more."

The only question for the NCAA should be how many years will the football program be suspended. ESPN's Stephen A. Smith opined that the Nittany Lions shouldn't take the field for five years. 

If the NCAA uses the SMU case as a barometer, then Penn State should brace for at least a two-year ban. As Emmert himself stated, "I've never seen anything as egregious as this."

And if Penn State's case is that much more egregious than SMU's case, and Emmert sees it as a "football scandal," then there should be no question that the Nittany Lions will be without football for at least two years. 

While some have argued against a ban of the football program because the current players on Penn State's roster are innocent, that fact is irrelevant to the discussion. Penn State, Sandusky, Paterno or any of the other officials who led this ring of abuse should not be able to prop up players currently on the roster to shield themselves from sanctions. The NCAA needs to impose the appropriate sanctions without hesitation as it did with SMU and every other university that has felt its relentless hammer.

JoePa Statue

And to answer the newest question that has birthed itself from the Penn State scandal about whether JoePa's statue should be taken down, of course it should. Statues are formed and hoisted to give honor to great events or persons. When Paterno shielded Sandusky from prosecution for raping young boys, he lost all honor as a man or coach. The statue needs to be removed from the campus where he helped Sandusky molest young boys.

But whether or not the statute comes down, people will know of the abuse that Paterno not only permitted, but helped Sandusky inflict. Those on the side of taking down the statute will see the statute and think JoePa is telling Sandusky, "One more victim!" Those still supporting Paterno will simply turn a blind-eye to the scandal and stand by their belief that he was one of the greatest coaches in college history. 

The real question in the offices of F&C is, should the NCAA ban Paterno from college football posthumously? Paterno was inducted into the College Football Hall of Fame on December 4, 2007. He gave his induction speech amidst the Sandusky rapes. He won championships while young boys lost their innocence at the unbridled, evil hands of a known child rapist.

Yes, Paterno should be posthumously banned from college football because he placed the football program above humanity and decency, and as a result, lost his.

Cedric Hopkins

Cedric Hopkins Bio

Cedric Hopkins runs this sports law/fantasy football blog. If you have issues with it, it's all his fault. Cedric was an athlete-student at the University of New Mexico (Basketball - Go Lobos!). He then morphed into a student-athlete when he attended law school in San Diego. Age replaced athleticism and now he writes appellate briefs for criminals (alleged criminals, of course) in state and federal cases, including writing U.S. Supreme Court briefs.

For years Cedric has researched and written about legal issues but maintained a love for sports. With FieldandCourt.com, he's combining his two passions: researching and writing about sports. When he's not in court arguing a case before a judge (or writing about himself in the third person), he'll be doing the same with his articles on FieldandCourt.com. Follow me, er, him on Twitter (opens in a new window).

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Cedric Hopkins

Cedric Hopkins runs this sports law/fantasy football blog. If you have issues with it, it's all his fault. Cedric was an athlete-student at the University of New Mexico (Basketball - Go Lobos!). He then morphed into a student-athlete when he attended law school in San Diego. Age replaced athleticism and now he writes appellate briefs for criminals (alleged criminals, of course) in state and federal cases, including writing U.S. Supreme Court briefs.

For years Cedric has researched and written about legal issues but maintained a love for sports. With FieldandCourt.com, he's combining his two passions: researching and writing about sports. When he's not in court arguing a case before a judge (or writing about himself in the third person), he'll be doing the same with his articles on FieldandCourt.com. Follow me, er, him on Twitter (opens in a new window).