The Penn State fiasco has undoubtedly been the black eye that the NCAA never ever would want to touch with a 10 foot pole but alas here we are and with the letter sent by NCAA president Mark Emmert, there seems to be a collision course mapped out that might make the inevitable, a reality.  With such a polarizing topic there seems to be two diverging views upon what comes next for Penn State.  Both sides of the opinion are passionate and valid to a degree.  I however think with the evidence available and the precursor to a looming investigation from the NCAA on the Penn State football program, those calling for the death penalty have a lot more weight behind them than the naysayers and those who wish to protect Penn State's overall image as they try to separate the acts of one individual from the totality of the values and virtues that embody what it is to be a member of the Penn State university.  Unfortunately, one cannot remove Penn State and only persecute the individual who was found guilty by the Grand Jury.  Especially not all those who actively worked to shield the public from that knowledge in order to preserve the brand and image of the football program and the university as a whole.  Let me repeat that, "To preserve the brand and image of the football program and the university as a whole."  Before anyone bothers to state that those were not the words spoken in an email from Curley to Schultz (after speaking with Joe Paterno) about whether to inform Second Mile and the Department of Public Welfare, you do not have to be a rocket scientist to deduce that the reasoning for not telling the proper authorities was to keep that information under wraps unless it gets out and then Spanier surmises that, and now I quote, "The only downside for us is if the message isn't 'heard' and acted upon, and we then become vulnerable for not having reported it.  But that can be assessed down the road.  The approach you outline is humane and a reasonable way to proceed".  The Freeh report points out specifically that this was the exact reason why information was withheld.

Now with that being said, the main question and debate is what can the NCAA do about it?  What should they do about it?  It’s a criminal matter so does the NCAA even have jurisdiction to act?  The answer is an emphatic "YES!!”  Below I will show you why and how Penn State has violated NCAA Rules and thus can be subjected to sanctions, punishment and possibly even the death penalty.  The rules and bylaws of the NCAA Division I Manual can be found here:  http://www.ncaapublications.com/productdownloads/D112.pdf

Sean Peick from NESN.com wrote an article on July 15th outlining why Penn State Football program shouldn't be punished by the NCAA.  This is my response to his article and my rebuttal to his perception of the NCAA's bylaws and enforceability of those bylaws.  I will only use the facts and queries that the NCAA has already made public to illustrate my points and stray from subjective rationalizing of the situation.

Peick states that "despite Jerry Sandusky's 45 counts of child sex abuse convictions and a preponderance of evidence that Joe Paterno and high-ranking university officials withheld information on his crimes, the NCAA cannot and should not punish the Nittany Lions football program -- much less hand down the death penalty for which many are calling."

Read more at: http://www.nesn.com/2012/07/penn-state-football-program-shouldnt-be-punished-by-ncaa-despite-heinous-nature-of-crimes.html

Peick goes on to state that: "It (Penn State) is not untouchable because of the nature of its crimes. Those are so far beyond any scandal in the history of college sports as to not even be comparable. Rather, it is untouchable simply because the NCAA has nothing in place to deal with this."

This is where Peick is incorrect.  What confuses me is even though Peick uses the letter sent by Emmert to Penn State with queries on why the NCAA would consider investigating this situation, Peick fails to take into context the bylaws that the NCAA are inquiring violations on.  Maybe it's to bring in more of a debate for his readers or perhaps it just doesn't help illustrate his point, but I'll go and ahead cover what Peick decided to leave out.  Below is the letter that the NCAA sent to now President Erickson on its stance so far on the Sandusky Cover-Up.  I will break from the letter from time to time to expound on the bylaws the NCAA list as topics of concern on whether a violation occurred or not.

Excerpts from the letter by NCAA to Penn State

On November 5, 2011, the NCAA first learned about allegations of sexual abuse of young boys occurring in the athletic facilities of Pennsylvania State University, perpetrated by a former assistant head football coach.  Further, at the same time the NCAA learned that these alleged acts occurred over two decades and that individuals with present or former administrative or coaching responsibilities may have been aware of this behavior.  The recount of these tragic events in the Grand Jury Report is deeply troubling, and if true, individuals who were in a position to monitor and act upon learning of potential abuses appear to have been acting starkly contrary to the values of higher education, as well as the NCAA.  I am writing to notify you that the NCAA will examine Penn State's exercise of institutional control over its intercollegiate athletics program, as well as the actions and inactions, of relevant responsible personnel.

As you undoubtedly are aware, the NCAA Constitution contains principles regarding institutional control and responsibility, as well as ethical conduct.  Specifically, under Article 2.1, "it is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulation of the Association.  The institution's president or chancellor is responsible for the administration of all aspects of the athletics program..." Further, that "includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution."

***2.1 THE PRINCIPLE OF INSTITUTIONAL CONTROL AND RESPONSIBILITY [*]

2.1.1 Responsibility for Control. [*] It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the Association. The institution’s president or chancellor is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures. (Revised: 3/8/06)

2.1.2 Scope of Responsibility. [*] The institution’s responsibility for the conduct of its intercollegiate athletics program includes responsibility for the actions of its staff members and for the actions of any other individual or organization engaged in activities promoting the athletics interests of the institution.

For those who do not know, to enable the NCAA to go for the death penalty there has to be clear evidence of "Lack of Institutional Control" and the ideal of this notion many argue has been written in a vague manner to which enables the ability to maneuver around in.  Well from what was written above it seems pretty cut and dry that the responsibility lies solely on the university members to control its athletics programs in compliance with the rules and regulations of the association.  This coupled with a bylaw of 10.1 which we will cover later about unethical conduct would get the NCAA grounds to impose sanctions on Penn State for not taking the proper responsibility in reporting a FELONY for sexual abuse of a child, then unethically covering up that heinous event.  Not only is their collusion from the Head Football coach, but the paper trial evidence rises all the way up to the tip of the spear with the President of the University.  So for those counting:  Principle of Institutional Control: Violated ***

These principles of institutional control are further elaborated on the Articles 6.01.1 and 6.4 of the Constitution, and universities are often held accountable in our infractions process for failure to meet them.

***6.01 GENERAL PRINCIPLE

6.01.1 Institutional Control. The control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself and by the conference(s), if any, of which it is a member. Administrative control or faculty control, or a combination of the two, shall constitute institutional control.

6.4 RESPONSIBILITY FOR ACTIONS OF OUTSIDE ENTITIES

6.4.1 Independent Agencies or Organizations. An institution’s “responsibility” for the conduct of its intercollegiate athletics program shall include responsibility for the acts of an independent agency, corporate entity (e.g., apparel or equipment manufacturer) or other organization when a member of the institution’s executive or athletics administration, or an athletics department staff member, has knowledge that such agency, corporate entity or other organization is promoting the institution’s intercollegiate athletics program. (Revised: 2/16/00)

6.4.2 Representatives of Athletics Interests. An institution’s “responsibility” for the conduct of its intercollegiate athletics program shall include responsibility for the acts of individuals, a corporate entity (e.g., apparel or equipment manufacturer) or other organization when a member of the institution’s executive or athletics administration or an athletics department staff member has knowledge or should have knowledge that such an individual, corporate entity or other organization: (Revised: 2/16/00)

(a) Has participated in or is a member of an agency or organization as described in Constitution 6.4.1;

(b) Has made financial contributions to the athletics department or to an athletics booster organization of that institution;

(c) Has been requested by the athletics department staff to assist in the recruitment of prospective student athletes or is assisting in the recruitment of prospective student-athletes;

(d) Has assisted or is assisting in providing benefits to enrolled student-athletes; or

(e) Is otherwise involved in promoting the institution’s athletics program.

6.4.2.1 Agreement to Provide Benefit or Privilege. Any agreement between an institution (or any organization that promotes, assists or augments in any way the athletics interests of the member institution, including those identified per Constitution 6.4.1) and an individual who, for any consideration, is or may be entitled under the terms of the agreement to any benefit or privilege relating to the institution’s athletics program, shall contain a specific clause providing that any such benefit or privilege may be withheld if the individual has engaged in conduct that is determined to be a violation of NCAA legislation. The clause shall provide for the withholding of the benefit or privilege from a party to the agreement and any other person who may be entitled to a benefit or privilege under the terms of the agreement. (Adopted: 1/10/95)

6.4.2.2 Retention of Identity as “Representative.” Any individual participating in the activities set forth in Constitution 6.4.2 shall be considered a “representative of the institution’s athletics interests,” and once so identified as a representative, it is presumed the person retains that identity.

This one is important because in a nutshell, Bylaw 6.01 and 6.4 were written to include all members of the university whether it is official or unofficial "be considered a "representative of the institution’s athletics interests," and once someone identified as a representative, it is presumed the person retains that identity.  Sandusky was a member of the institution when the first felony occurred.  He was then kept on with "emeritus" rank to access the universities recreational facilities along with other privileges which included un-chaperoned visits to the locker room facilities after hours. So the NCAA is identifying Sandusky as a member of the university which therefore the university must assume responsible control over as per the guidelines of the NCAA guidelines.  So those who argue that it was an isolated event from one individual and the university shouldn't be punished for the wrong doings on one person, herein lies the evidence that the NCAA can use to connect the dots between Sandusky and Penn State thus holding them accountable for his actions. Responsibility for actions of outside entities: Direct Violation***

Under Article 2.4, the NCAA Constitution requires that "for intercollegiate athletics to promote the character development of participants, to enhance the integrity of higher education and to promote civility in society, student-athletes, coaches, and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility,  These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program." These principles are bedrock to the foundation of intercollegiate athletics; and the membership of the Association has made clear through the enactment of relevant bylaws that they are expected to be respected and followed.

***2.4 THE PRINCIPLE OF SPORTSMANSHIP AND ETHICAL CONDUCT [*]

For intercollegiate athletics to promote the character development of participants, to enhance the integrity of higher education and to promote civility in society, student-athletes, coaches, and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility. These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program. It is the responsibility of each institution to: (Revised: 1/9/96)

(a) Establish policies for sportsmanship and ethical conduct in intercollegiate athletics consistent with the educational mission and goals of the institution; and (Adopted: 1/9/96)

(b) Educate, on a continuing basis, all constituencies about the policies in Constitution 2.4-(a). (Adopted: 1/9/96)

The NCAA is specifically pointing out that because of the cover-up, there seems to be a direct violation of bylaw 2.4 for the principles of sportsmanship and ethical conduct.  It's obvious that Sandusky fail on all points of this bylaw but it also illustrates that the University and its executive team also did not uphold the fundamental values to enhance the integrity of higher education by failing to do the right thing once the information was available to them.  If one wanted to argue this bylaw, then they should consider this line from that bylaw which states: "These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program."  The broad spectrum reference could definitely encompass the current situation if the NCAA deems it necessary to pursue. Principle of Sportsmanship and ethical conduct: Violated***

Indeed, NCAA Bylaw 10.1 identifies 10 types of unethical conduct, but specifically makes clear that the list of 10 is not limited to those delineated.  Among other things, that list captures the general principle of honesty embedded in Bylaw 10.01.1, which requires individuals to "act with honesty and sportsmanship at all time so that intercollegiate athletics as a whole, their institutions and they, as individuals, shall represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports."  While admittedly, the actions alleged to have occurred in this instance are not specifically listed in the bylaw, it is clear that deceitful and dishonest behavior can be found to be unethical conduct.  Surely, the spirit of this bylaw also constrains behavior that endangers young people.

***10.01 GENERAL PRINCIPLE

10.01.1 Honesty and Sportsmanship. Individuals employed by (or associated with) a member institution to administer, conduct or coach intercollegiate athletics and all participating student-athletes shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, shall represent the honor and dignity of fair play and the generally recognized high standards associated with wholesome competitive sports.

10.1 UNETHICAL CONDUCT

Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member, which includes any individual who performs work for the institution or the athletics department even if he or she does not receive compensation for such work, may include, but is not limited to, the following: (Revised: 1/10/90, 1/9/96, 2/22/01, 10/5/10)

(a) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution;

(b) Knowing involvement in arranging for fraudulent academic credit or false transcripts for a prospective or an enrolled student-athlete;

(c) Knowing involvement in offering or providing a prospective or an enrolled student-athlete an improper inducement or extra benefit or improper financial aid; (Revised: 1/9/96)

(d) Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation; (Revised: 1/16/10)

(e) Receipt of benefits by an institutional staff member for facilitating or arranging a meeting between a student athlete and an agent, financial advisor or a representative of an agent or advisor (e.g., “runner”); (Adopted: 1/9/96, Revised: 8/4/05)

(f ) Knowing involvement in providing a banned substance or impermissible supplement to student-athletes, or knowingly providing medications to student-athletes contrary to medical licensure, commonly accepted standards of care in sports medicine practice, or state and federal law. This provision shall not apply to banned substances for which the student-athlete has received a medical exception per Bylaw 31.2.3.5; however, the substance must be provided in accordance with medical licensure, commonly accepted standards of care and state or federal law; (Adopted: 8/4/05, Revised: 5/6/08)

(g) Failure to provide complete and accurate information to the NCAA, the NCAA Eligibility Center or an institution’s admissions office regarding an individual’s academic record (e.g., schools attended, completion of coursework, grades and test scores); (Adopted: 4/27/06, Revised: 10/23/07)

(h) Fraudulence or misconduct in connection with entrance or placement examinations; (Adopted: 4/27/06)

(i) Engaging in any athletics competition under an assumed name or with intent to otherwise deceive; or (Adopted: 4/27/06)

(j) Failure to provide complete and accurate information to the NCAA, the NCAA Eligibility Center or the institution’s athletics department regarding an individual’s amateur status. (Adopted: 1/8/07, Revised: 5/9/07)

Now this is the sticking point that many have formed heated debates over.  The question on what is considered ethical vs. whether unethical conduct served as a benefit and/or increased the competitive edge for that university.  This I feel is laughable because I think the argument in itself is irrelevant.  If one was to say that having that information come out in 1998 or even in 2001 would not have affected Penn State’s ability to recruit and accrue financial gain through the football program, that is absurd.  A member of the football coaching staff was molesting children, and not just any children but troubled children associated with the university through the Second Mile foundation whom should even have extra protection given the circumstances that they had been forced to live with.  He also was still highly involved with student athletes and the everyday business of a D1 athletic program which might not have attributed to a De Facto competitive edge, but not having it reported alleviated them from having to recruit around and clean up that situation which in fact would protect their investment (the Penn State football program) and circumvent having to place their own sanctions on the football program which un-doubtable would have had a negative effect.  So let’s not get confused with gaining a competitive edge over losing a competitive edge for doing something that go against the bylaws of the NCAA.  They are actually one in the same.  Also to add, sexually abusing children and then covering it up doesn’t not have to be expressly written in the NCAA bylaws for it to still be considered unethical. Unethical Conduct: Violated On All Levels***

To be clear, the requirement is so important that the language is repeated verbatim in Bylaw 11.1.1, governing the conduct of athletics personnel.  Bylaw 11.1.2.1 goes on to state that "it shall be the responsibility of an institution's head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach."  Under the same bylaw... it makes clear that "institutional staff members found in violation of NCAA regulations shall be subject to disciplinary or corrective action....whether such violations occurred at the certifying institution or during the individual's previous employment..."

***11.1 CONDUCT OF ATHLETICS PERSONNEL

11.1.1 Honesty and Sportsmanship. Individuals employed by or associated with a member institution to administer, conduct or coach intercollegiate athletics shall act with honesty and sportsmanship at all times so that intercollegiate athletics as a whole, their institutions and they, as individuals, represent the honor and dignity of fair play and the generally recognized high standards

11.1.2.1 Responsibility of Head Coach. It shall be the responsibility of an institution’s head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach. (Adopted: 4/28/05)

This is where Joe Paterno is in direct violation of the bylaws.  I do not think there is many ways this could be argued otherwise besides to say that he reported the events to his proper contacts and left it to them to do what they felt was the best thing for the university and the football program.  I will be willing to give a little here on this bylaw for the sake of argument but Joe Paterno did contribute to "repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities, the University's Board of Trustees, the Penn State Community and the public at large." -excerpt from Freeh Report page 16. Does that completely absolve him, in the court of public opinion, depends on who you ask, but as his duties to monitor all activities of all assistant coaches and other administrators, he fail miserably.***

Lastly, it is important to bring to your attention that Bylaw 19.01.2 affirmatively states that "individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts.  Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example.  Much more is expected of them than of the less critically placed citizen."  This provision has been cited by enforcement in at least a half dozen major infractions cases in the past.  Those who exhibit this behavior are meeting the ethical expectations of the NCAA membership.  Those who do not, fail us all.

***19.01 GENERAL PRINCIPLES

19.01.2 Exemplary Conduct. Individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their own moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.

This bylaw in itself embodies why Penn State should be eligible for the death penalty whether they receive it or not.  Their responsibility is to "do more than avoid improper conduct and questionable acts".  Not only did they not fulfill that bylaw, they actively worked against it thus making them liable for the consequences of what is now occurring.***

Many will say, why should all of the innocent people who had no fault in this, were completely unaware of what was going on, never had a chance to stop what was happening be subjected to the death penalties.  Well let’s roll back thorough history and take SMU as the obvious example.  I’m sure there were groundskeepers, athletic assistants, administrators and the like that had nothing to do with the good ole boy system but they were equally punished by not having a job when the NCAA imposed the death penalty on the university.  Does it make it right?!?  Heck no!  It's a horrible reality they had to face and what Penn State might have to face.  No one wins in a situation like this; collateral damage unfortunately is as inevitable as the backlash received from the media and the public.  I will agree with Peick on one thing however:  "Absolute power corrupts absolutely, and when faced with the chance to walk the walk after talking the talk for so many years, Paterno and company turned their backs on those kids -- inarguably the real victims in all this mess -- in order to win a few more football games and maintain the public integrity of the program."  That is where our agreement ends.

Peick goes on to write: "Anybody who tries to argue that this showed a lack of institutional control is warping the definition of that phrase into something completely untrue. In fact, this scandal is rather a prime example of too much institutional control."

Again we can argue over semantics but if you go by NCAA Bylaws, the NCAA is well within their right to exercise their own judgment on the Penn State Football Program.  Hey Peick, Too much institutional control over a program which is breaking laws and protecting themselves whilst doing it is in fact lack of creditability, lack of principle, lack of ethical conduct and lack of responsibility which outlined by the NCAA is exactly what Lack of Institutional Control is all about.  I rest my case.

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