Sports Nut

Down With the Penn State Penalty

It’s time for the NCAA to end its pointless punishment of the Nittany Lions football program.

Photo by Justin K. Aller/Getty Images
Brandon Felder and Geno Lewis of the Penn State Nittany Lions celebrate after a 12-yard first-half touchdown against the Michigan Wolverines on Oct. 12, 2013, at Beaver Stadium in State College, Pennsylvania.

Photo by Justin K. Aller/Getty Images

In July 2012, in the wake of the horrific Jerry Sandusky child sexual abuse scandal and subsequent cover-up, the NCAA announced sweeping sanctions against Penn State University. Some targeted the university as a whole, including a $60 million fine and five years of oversight by former Sen. George Mitchell. The most visible were specifically directed at the football team: reducing scholarships, banning postseason play through the 2015–16 season, vacating past wins, and allowing players to transfer without penalty.

Last summer, recognizing the progress cited in Mitchell’s first yearly report, the NCAA gave back some scholarships: Penn State will have 75 this year (up from the compulsory reduction to 65), 80 next year, and the full allowable number of 85 scholarship players in 2016. While NCAA President Mark Emmert has said there will be no further reduction of the sanctions, the Sporting News recently reported that sources within the NCAA believe that Penn State would have a “strong case” for lifting the sanctions if it continues to earn positive progress reports. Let’s hope that comes to pass: It’s time to end the football-specific sanctions—to allow Penn State to have a full complement of scholarships and to play in a bowl game as soon as this year.

When announcing the sanctions back in 2012, the NCAA pointed to former FBI Director Louis Freeh’s finding that the “culture of reverence for the football program” contributed to university officials’ failures to report Sandusky’s sexual abuse. The NCAA Consent Decree, which formalized the sanctions, noted that, while “sexual abuse of children … ordinarily would not be actionable by the NCAA … it was the fear of or deference to the omnipotent football program that enabled” the longtime assistant coach to get away with his crimes for so many years.

At the time, many commentators believed the bowl ban and scholarship reduction—and the hit to the university’s and the football team’s prestige—would force the Penn State community to re-evaluate football’s on-campus prominence. Yahoo’s Dan Wetzel even suggested that the sanctions were worse for Penn State than the “death penalty”—the rarely invoked NCAA punishment by which a team must cease to exist entirely for a period of time.

In reality, the Nittany Lions football program hasn’t suffered much at all. In the first two years after the sanctions were announced, the football team has gone 8–4 and 7–5—not sterling records, but certainly respectable. The sanctions aren’t discouraging top high school players from coming to Penn State. And the head coaching gig remains prestigious enough that Bill O’Brien left State College to graduate to the NFL and was replaced by James Franklin, who reportedly ignored interest from the NFL and other sanction-free college programs to take the job. Attendance is down by Penn State standards but still the fifth-highest in the country, and a reported 72,000 fans came out to watch a practice game this spring. Alumni donations have stayed steady; in 2013, more individual alumni gave to the university than ever before, and this spring the alumni association received its largest ever single donation. So it is hard to say that the NCAA achieved its goal of decreasing the influence of football at Penn State, and keeping the sanctions in place will clearly do nothing to change that.

What, then, is the best argument for retaining the sanctions? Tufts University philosophy professor Erin Kelly, who has written extensively on the theory of punishment, told me there are two ways that we could look at the NCAA’s Penn State penalty. The retributive theory says that “offenders of some unlawful acts should suffer because they were wrong.” The second theory looks at the consequences of punishment, especially whether it meets society’s aim of deterring future bad acts. Here, Kelly noted that the “best rationale for the sanctions is to bring about change.”

How do those rationales fit here? The criminal justice system and the civil courts either have already provided or are in the process of providing retribution against individual bad actors and the university at large. By the time the NCAA announced its sanctions, Jerry Sandusky had already been convicted of 45 counts of sexual abuse and was facing up to 65 years in prison. He was later sentenced to 30 to 60 years in prison; now that the 70-year-old Sandusky’s final appeal was denied, he will likely remain there for the rest of his life.

Penn State Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz—who allegedly knew of Sandusky’s crimes—had resigned and were facing prosecution at the time the NCAA dropped the hammer. They are now awaiting trial on charges of perjury, obstruction of justice, failure to report abuse, child endangerment, and conspiracy. Despite loud public support, head coach Joe Paterno was fired on Nov. 9, 2011, four days after Sandusky’s arrest and just hours after Paterno said he would retire at the end of the season. The Board of Trustees forced university President Graham Spanier out on the same day Paterno was fired. Paterno died of cancer in January 2012, six months before the sanctions were issued, and a statue of the coach outside the football stadium was taken down. Four months after the sanctions were announced, Spanier was charged with covering up Sandusky’s abuse, and today he is awaiting trial with Curley and Schultz. The university is facing numerous civil lawsuits, so far paying out nearly $60 million in settlements to victims of Sandusky’s abuse, while spending $45 million on legal, consulting, and PR fees. All of this would have happened without the NCAA’s involvement.

That accounts for the retributive theory. What about deterrence? The revelation that such a horrible thing happened at Penn State should have been deterrence enough for anyone with a shred of humanity. Then again, in February, the University of Connecticut released an independent report that found the university waited years before it properly investigated sexual abuse allegations against a music professor. One of the accusations against the professor came in a letter sent one month after Sandusky’s arrest that specifically compared Connecticut’s lack of response at that point to Penn State’s handling of Sandusky’s crimes. Yet neither the head of the Music Department nor the dean of the School of Fine Arts reported the letter for almost two more years.

It’s obviously absurd to expect that every university in America will now, as a consequence of the Sandusky case, report every instance of sexual abuse—that’s just not how the world works. But perhaps the Penn State sanctions did provide a broader deterrent. Professor Kelly suggested that if we “think about [the sanctions] in terms of a deterrence against actions that offend certain standards of decency, as a symbol upholding minimum standards of acceptable behavior, it makes more sense.” That is, by coming down hard on the most heinous crime that it will ever confront, the NCAA could show its members that it is serious about, as the NCAA’s Consent Decree in the Penn State case says, “serv[ing] as positive moral models for students.”

In reality, the NCAA has an exceedingly poor track record in this area. Three months before Sandusky’s arrest, Yahoo published a detailed account of flagrant violations of NCAA rules at the University of Miami. The NCAA completely bungled the investigation—admitting that the defense attorney for the main witness against the University of Miami was on the NCAA payroll. After Miami voluntarily sat out two postseasons, the NCAA eventually took away nine football and three basketball scholarships over three years, suspended the basketball coach for five games, and told Miami to fine and suspend coaches who send impermissible texts to recruits. Similarly, in 2012, the NCAA investigated allegations of academic fraud at the University of North Carolina—misdeeds at the heart of the group’s mission—and imposed a punishment so toothless that the NCAA is now reinvestigating the same charges at the same school.

Individual schools aren’t moral models either. Just last season, after star Florida State quarterback Jameis Winston was accused of rape, a damning New York Times investigation illustrated that there was “virtually no investigation at all, either by the police or the university.” In this case, the school clearly prioritized football glory, not at all deterred by the sanctions against Penn State. The University of Oklahoma recently lost an appeal to the NCAA, wherein the school asked that a player accused of assaulting a woman while at the University of Missouri be allowed to join the Sooners football team without sitting out for a year. (There were no criminal charges in Missouri because, as the victim told police, she feared the backlash that would result from accusing a star football player.)

Oklahoma’s head football coach will make $5.25 million this year. ESPN will pay $7.3 billion over the next 12 years to broadcast the college football postseason. The same “football first culture” the NCAA decried at Penn State exists at universities across the country precisely because football makes lots of money for lots of people. The NCAA ultimately has no interest in changing this culture.

But what if the culture of football isn’t the whole problem? University of Oregon psychology professor Jennifer Freyd, in her book Blind to Betrayal, calls Penn State’s reaction to Sandusky’s crimes “institutional blindness.” Freyd told me that when dealing with something traumatic, turning a blind eye “is a natural reaction, and it takes effort to counter this.” It can and does happen everywhere, with or without football. Freyd said the best way to address institutional blindness is to focus on prevention, to “take steps to make it less likely.”

Which brings us to rehabilitation. We dole out punishment for retribution and deterrence, but also to put bad actors on a better path. Last year the NCAA recognized that Penn State had made progress—not because Penn State students and fans changed their view of the importance of football, but because the university agreed to implement recommendations from the Freeh Report. In her book, Freyd encourages institutions to educate their communities about preventing and reporting crimes, and to create systems that support victims and whistleblowers. These are precisely the reforms that Penn State is implementing. Given that, continuing to target the football team serves no real purpose.

The Penn State scandal was so horrific that it gave the NCAA the chance, in a highly visible situation, to take a public stand against the worst kind of human behavior. While it has been unable to enforce its own rules, it could at least do something when a university provided extensive evidence against itself and was in no position to object to any sanctions.

Since the sanctions were announced, the NCAA has shown that this is absolutely the only circumstance under which it can be at all effectual. Two years ago there were some who wondered why the NCAA was getting involved, given the criminal justice system’s ability to address the crimes. The reason the NCAA did something was because, two years ago, it would’ve looked very bad to do nothing. Now, it has a chance to make a reasonable decision, to look at what’s happening at Penn State in 2014 and recognize that the sanctions no longer serve a purpose. Given the current state of the NCAA, reasonableness is probably the best that we can hope for.