WASHINGTON, July 23, 2012 — The penalties imposed by the NCAA against Penn State and its football program are severe and unprecedented. They send the message that they should. Unfortunately, they violate the NCAA’s own standards and procedures for imposing sanctions.
The NCAA is empowered to enforce NCAA rules. From its website, “The NCAA enforcement program strives to maintain a level playing field for the more than 400,000 student-athletes. Commitment to fair play is a bedrock principle of the NCAA. The NCAA upholds that principle by enforcing membership-created rules that ensure equitable competition and protect the well-being of student-athletes at all member institutions.”
The NCAA website describes a process that includes an investigation, charges, hearings, and then penalties. The university facing sanctions is given a notice of allegations, then has 90 days to respond in writing. When all parties have had an opportunity to respond to the charges, a hearing is set before the Committee on Infractions. The school is represented by legal counsel, its president or chancellor. If it wishes, the university may appeal before penalties are imposed.
The Penn State penalties don’t involve a “level playing field” for NCAA’s “student-athletes.” There are no “membership-created rules” designed to deal with criminal behavior by university officials and athletic personnel. Those are in the purview of the courts. The NCAA has imposed penalties for legal and moral failings by Penn State, not infractions of NCAA rules. It did so without pursuing an investigation (it relied on the Freeh report), without giving Penn State the opportunity to respond to the charges, without a hearing, without legal representation from the university.
The NCAA decision was arbitrary and lawless, even by the standards of the NCAA.
The NCAA is not a government body. Its power rests on the cooperation of the member schools, and if they acquiesce, it can impose any penalties it likes for whatever reasons. But it does have rules in place, and it has decided to ignore them. Penn State administrators, feeling the weight of public disgust for the failures of Coach Paterno and other leaders, have decided to acquiesce. Other schools in its conference have likewise acquiesced and are considering penalties of their own.
The harshness of the penalties is widely applauded. The failure of Penn State officials to protect the children molested by Jerry Sandusky was enormous, and the punishments meted out should be sufficient to deter other university administrators from contemplating that kind of coverup. But they should happen within the rules and laws established by the organizations that impose them.
We don’t like seeing bad guys get away with things. We don’t like seeing good ideas throttled by bureaucracy and political wrangling. We want justice now, we want results now.
We want, it seems, an end to law.
The DREAM act is, in my opinion, an excellent idea. Providing means to allow people who were brought to the U.S. as children to stay, contingent on their good behavior, military service, and education, is both humane and good for America. But Congress refused to act on it, and so it remains a dream.
That’s the way it’s supposed to work in a society of laws. President Obama, weary of the obstructionism of Republicans in Congress and eager to do pursue a policy that many see as good and useful, decided to act without a law. He decided to selectively enforce the law to get the results he couldn’t get in Congress.
No matter how good the idea or how popular the policy, we have rules set out in our Constitution and our laws to make it reality. If you go around them, you can achieve something good, but at a serious price. If the president is allowed to create rules on his own to do something good without Congress, he can create rules on his own to do something less popular and less good. Our system isn’t designed so that the president is only constrained by the law when he likes the law, but also when he does not like the law. Otherwise, we have no law.
The NCAA sanctions against Penn State and the president’s decision to not enforce immigration laws so that he can get a “DREAM Act lite” are both popular, but they’re also both part of an approach that throws rules out the window if they’re inconvenient. Once that precedent is allowed, it is hard to turn back. The member schools, by acquiescing to the Penn State sanctions, have granted the NCAA enormous power over them that it did not have. It can punish them for any failings, moral, legal, or athletic, regardless of membership-created rules. Likewise, if Congress and the courts acquiesce to the president’s decision to read and enforce the law as he likes, we can expect him to do it even when we happen to like the law as it was written.
The Administration has decided to enforce the welfare reform law as it likes. The president has taken the authority to mark Americans abroad for death, and the power to choose Americans at home for indefinite detention without charges has been granted him by Congress. We want action without messy political and legal processes getting in the way, and we’re getting it. The NCAA is simply following the same lead down that same path.
We should remember that rules that keep bad guys from getting their just desserts protect good guys from unjust punishment. A system that allows one Party to keep popular legislation tied up and bring legislation to a crawl is a system that helps prevent tyrannies of the majority. If we want instant results and gratification, we should be prepared for very bad unintended effects as well.
James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the professor of Romance languages, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade. He thinks that the NCAA and all its works, especially the BCS, are an abomination. He tweets, hangs out on Facebook, and has a blog he totally neglects at pichtblog.blogspot.com.
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