By Johnny Ginter on July 23, 2012 at 3:00p
Did what he wanted

One of the most important and well-known decisions in Supreme Court history is Marbury v. Madison. For those of you who've forgotten the majority of your 11th grade government class, the story goes something like this:

Right before the John Adams administration peaced out of the presidency in 1801, it made a bunch of judicial appointments as political favors to guys they thought were cool. Adams' Secretary of State was supposed to ensure that all of the letters of commission got delivered, but he screwed up and some of them weren't, including one to a guy named William Marbury. So when the incoming Jefferson administration saw a bunch of appointments for dudes they thought were totally whack, they refused to deliver them.

Marbury, pissed as all hell at this point, took James Madison (Jefferson's Secretary of State) to court. Supreme Court, where Chief Justice John Marshall decided that yes, Marbury had the right the the commission, but the 1789 Judiciary Act that gave the Supreme Court the power to give it to him was unconstitutional so he was SOL.

Oh and PS: John Marshall was the Secretary of State that started this whole mess in the first place and probably should've recused himself but didn't and also didn't really need to say anything about the Judiciary Act but did anyway.

So let's recap: in one fell swoop, John Marshall a) cleaned up his own mess, b) gave the Supreme Court and by extension, himself, the power of judicial review (which didn't exist because it isn't anywhere in the Constitution, iiirroonnnyyy), and c) made Thomas Jefferson really really mad because of a and b. It's considered one of the best judicial decisions in Supreme Court history not because of how sound Marshall's arguments are, but because he brilliantly exploits a situation to give the Court more power than it had before.

NCAA president Mark Emmert has been taking notes.

Today, Emmert and the NCAA levied some severe penalties on Penn State, saying that they were warranted because of the "unprecedented" nature of what happened under the watch of their athletic department. And to be fair, the scope and awfulness of what Jerry Sandusky was allowed to do can't be diminished; he raped children and was allowed to continue to do so because Joe Paterno thought he could be sequestered away like some kind of well-meaning but dangerous Lennie Small instead of being prosecuted and thrown in jail like the monster he is.

But that really isn't what this is about. Neither the NCAA or Emmert can really do anything that will rectify or change what Sandusky did, and nor will their punishments do much to provide comfort to the victims of Sandusky's crimes.

And I think Emmert knows this, which is why they've framed their punishments through the lens of "cultural change:"

By perpetuating a "football first" culture that ultimately enabled serial child sexual abuse to occur, The Pennsylvania State University leadership failed to value and uphold institutional integrity, resulting in a breach of the NCAA constitution and rules.

[Said Emmert,] "...According to the NCAA conclusions and sanctions, the Freeh Report 'presents an unprecedented failure of institutional integrity leading to a culture in which a football program was held in higher esteem than the values of the institution, the values of the NCAA, the values of higher education, and most disturbingly the values of human decency.'"

All true, but what I want to point out is that the NCAA's authority to act as an agent of "cultural change" is a tenuous one at best. For those interested, the NCAA actually does cite bylaw precedent for the actions that they took, but as you read through them it becomes abundantly clear that those bylaws were written with the concept of educational integrity in mind, not criminal proceedings.

Does what he wants

Hence the John Marshall comparison. Emmert has said that this is a unique case that requires a unique punishment, but in giving himself and the NCAA the power to enact "cultural change," they now have given themselves a wide berth in terms of possible punishments that they can levy and violations that they feel they can address.

Suddenly a spate of arrests at one program might fall under their purview for punishments. Maybe an athlete was found to be selling drugs to his teammates. Maybe several football players are tweeting offensive things and broadcasting it all over the internet. Maybe a booster is taking several players to strip clubs and having boat parties for them.

This is why the University of Miami should be shaking in its boots. By setting this precedent, Emmert and the NCAA is making it clear that explicit violations of NCAA bylaws isn't enough for some problems. If the NCAA feels what had been going on in Miami constitutes a need for a "cultural change," they now have the leeway to give them basically whatever penalty they want.

A lot of people are mad about this. As I write this at 11am on Monday, Andy Staples has been going off on Twitter for the past hour or so about the lack of logic here, and wrote this yesterday. Spencer Hall has referred to the NCAA sanctions on Penn State as "petty tyranny." Our friend Luke Zimmermann threw down 1700 words about what's happened. Hell, even Tim May seems skeptical about everything.

I respect all of those guys, and I get the anger. The NCAA is an obtuse, weird organization that rarely operates on logic or sense, and the Penn State football program is now going to exist in a zombie state for the next decade as it shambles around the Big Ten to serve as a warning for others. It's the functional equivalent of a scarlet letter, an embarrassing way to show the Penn State community at large that their priorities have been misplaced for a long time. It's harsh, harsh stuff, and it's based on powers of authority that Emmert pulled out of thin air in the last few days. That's dangerous.

I have two final thoughts on that. First is that this is the NCAA responding to the biggest criticism we've had of them for a long, long time, which is their relative impotence and weakness. Frustrated because you felt that USC got off easy? Welp!

Secondly, I can't honestly say that I'm mad or sad or think that this punishment is a miscarriage of justice. Is this a slippery slope in terms of what the NCAA is able to do? Yeah, it is. But the culture at Penn State does need to change, and though it's unlikely that the NCAA sanctions will actually do anything to affect that, I don't really mind watching them try.

Still, let's not pretend that Ohio State fans and administration (or Michigan fans and administration, or Texas fans and administration, or LSU fans and administration) are somehow immune to the kind of blind support and sheer stupidity we've seen out of Happy Valley. All of us are guilty of putting sports before education, loyalty before sense, and pride before acceptance; some people even wear that fact as a badge of honor.

So maybe part of the anger that comes from this decision is because we all know that on some level we're vulnerable and in need of the same kind of "cultural change" that Penn State needs right now.

Is our kind of fanaticism on the same level of what happened and to some extent is still happening at PSU? God, I hope not, and I doubt it.

But I'm not sure.


Comments Show All Comments

20sider's picture

I have two final thoughts on that. First is that this is the NCAA responding to the biggest criticism we've had of them for a long, long time, which is their relative impotence and weakness. Frustrated because you felt that USC got off easy? Welp!  ...
                                                            ... Is our kind of fanaticism on the same level of what happened and to some extent is still happening at PSU? God, I hope not, and I doubt it.

But I'm not sure.

All of this seems to ring of a certain truth that I agree with.


O-H Kee Pa's picture

Well said, Johnny. Tat-gate opened my eyes to a bunch of things. Why am I, a 28 year old man, idolizing 18 and 19 year olds? I made the conscious decision to step back a bit. OSU (and every program) will always have its Charles Eric Waughs; that's not the issue. The issue is every college administrator in the country breathed a sigh of relief today, because each one damn well knows that it could have just as easily happened to their institution.

M Man's picture

I approve this message, Johnny.  This is a superbly written post.  I was going to suggest, contrary to your assertion, that Michigan actually is "immune" to all manner of human failing and stupidity.  And then Fitzgerald Toussaint ruined my day.

Crimson's picture

+1 for the article.
However, while I see that the precedent is there, I also heard a promise from Emmert that this was a special one time thing.  Granted, I really don't have reason to trust Emmert, but I'll wait to see how it plays out.  Either way, Miami is getting nailed (from what I hear; I'm not as informed as about the Freeh report).

Nutbuck1959's picture

Not the first time I've heard of a one time thing.......We'll see.

Arkansas Buckeye's picture

An impressively educational and thought provoking post.  I am enlightened more by reading it.  Thank you.
BTW, who is winning the Fulmer Cup?

"It seemed like a good idea at the time."

jenks's picture

I'm not sure it is a slippery slope, though.  For this case to act as precedent, every future case  will have to be compared with what happened at PSU.  Because what happened was so bad, I doubt many will feel comfortable making that comparison. If/when that comparison iis made there will be such an outcry that I can't see the NCAA reusing this logic.

Ian Cuevas's picture

Very well written Johnny. Excellent work.

RBuck's picture

Good article. Makes me happier that a pig in sh** to know tOSU's stuff is over/ fingers crossed.

Long live the southend.

rdubs's picture

Honestly term limits for coaches is probably the only thing to prevent this from happening.  Once a coach has had enough success to last at least 10 years, they gain a hero worshiping following that befell us during Tatgate.  A lot of people stepped to Tressel's defense and had a hard time swallowing the fact that a guy who seemed to be a paragon of ethical behavior could hide/lie about something that seemed directly related to preserving wins on the field.  I was one of those people.
You can make arguments about Tressel being worried about the safety of players involved with a potential felon or the sanctity of the FBI investigation, but those arguments sound just as hollow as those saying JoePa did what he was required by telling his superiors about McQuery's story and didn't lie to the Grand Jury because the police cleared Sandusky after the 1998 incident.  Here's hoping that the PSU fans finally realize that JoePa was not perfect and while he did do many great things he will also be remembered for an absolutely horrific decision that lasted nearly 15 years.  

Poison nuts's picture

I'm for term limits for coaches.
I'm against term limits for coaches.

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

Bucksfan's picture

The only exception I have is anecdotal.  Going through the 700+ comments on the Black Shoe Diaries articles about this today, I do not find one single comment that says "we deserved this, and I am ashamed of Penn State."  I know for a fact that there were MANY fans on our 100+ comment articles on Eleven Warriors once it became known that Tressel knowingly played ineligible players and lied to the NCAA that were PISSED and SAD at Tressel.  Of course, there were those of us that said some of the same things about the players involved: that improper benefits happen at all schools, and that this really isn't that big of a deal because it's their own stuff, and the NCAA rulebook is stupid, blah blah blah.  But there were those of us at the time who held Pryor, et al and Tressel in contempt (many of us still do) for what they did.  Sure, we get mad at ESPN and their witch hunt.  But by and large, I think many of us were severely disappointed in Tressel, and were very angry that he made mistakes that contradicted his surface personna.  We have forgiven him, in part, but I think that mostly has to do with getting Urban Meyer than anything else.
When we got our sanctions by the NCAA, we didn't think we were going to get a bowl ban, and we did voice our objections.  But in general, I'm pretty sure we understand that wrongdoing was done, that we weren't some sort of scapegoat, and that the program needed to be penalized for trying to win at all costs.
This isn't what's happening at Penn State.  They think the school doesn't bear any responsibility for the actions of those men.  They don't seem to want to understand the motives of these men and how that related to Joe Paterno and the football program.  If they did, there'd be some rational responses.  People think the NCAA is out of bounds here.  The NCAA is empowered by the universities.  Penn State isn't arguing with their punishments the way USC did.  Penn State and even more importantly the Big Ten are embracing this new power play.
It is costing the universities millions of dollars to be investigated time and time again by the system that is in place.  If harsher penalties and more NCAA power is what they think is going to curb the runaway scandals, then why do we think that's a bad thing?
I think what I'm trying to say is that yes we love our football just as much as the next program.  But I think what our scandal showed is that at least those of us who are extreme enough to be part of the blogger community are still somewhat measured in how we dealt with it and who we blamed.

Bucksfan's picture

Way too long, sorry.

buckeyeEddie27's picture

I agree with ya man.  The love for your school, team, or alma mater can only go so far.  At some point you have to be able to step back and take a look objectively.  I think alot of folks on here did just that when our stuff hit the fan.  Doesnt look like that is happening as much as it should in the psu cult world.

I know there's a game Saturday, and my ass will be there.

CowCat's picture

I wouldn't be surprised if Penn State falls out of the conference.
It won't help the competitiveness of the conference  to have a zombie team that effectively can't compete and thus drags down every one else's strength of schedule.
With the new playoff format just being the conference champ may not be enough -- we need a stronger conference top to bottom

"We get paid to score touchdowns, not kick field goals"
-- Urban Meyer

FROMTHE18's picture

I hate how people have been comparing USC to Penn State (vastly different programs and vastly different situations) however having one of your top 3 programs in zombie mode isnt all that bad, the Pac 10/12 adjusted, Oregon and Stanford took the reins...I think the Big 10 is a better conference than the Pac 12, especially when OSU gets off suspension, but what this will do is open things up for other schools in the conference, like Michigan State to continue to be towards the top and Michigan and Ohio State to reassert their dominance of the conference... Big 10 with PSU in zombie mode will be fine, this only helps other teams in the conference IMO

buckeyedude's picture

I thought Zombies were cool? Or was it Vampires? Kids these days.



onetwentyeight's picture

TO BE FAIR ... (*puts on lawL hat* *defends CJ Marshall*) 
the rules for recusal as they existed back then (if they even did at all) were much different from the standarized Model Rules we have today, and it would've been exceptionally hard to enforce all these conflicts of interests since in the beginning years of the Republic THERE WAS ONLY LIKE A HANDFUL OF dudes running everything (or as we call them now, the "Founders"). 
/carry on.

Johnny Ginter's picture

this is a good point and the fact that the supreme court in 1803 only had 4 justices adds to it, but on the other hand if there was ever a case for a judge to recuse himself from in early america, this was probably it.

Ethan's picture

Secondly, I can't honestly say that I'm mad or sad or think that this punishment is a miscarriage of justice. Is this a slippery slope in terms of what the NCAA is able to do? Yeah, it is. But the culture at Penn State does need to change, and though it's unlikely that the NCAA sanctions will actually do anything to affect that, I don't really mind watching them try.

Best summation of the NCAA's involvement out there. Hits the nail squarely on the head. 

doodah_man's picture

Seems a shame that we lobbied for so long to have a B1G, two of the top teams will not have a chance to play this year (tOSU, PSU)....

Jim "DooDah" Day

"If I were giving a young man advice as to how he might succeed in life, I would say to him, pick out a good father and mother, and begin life in Ohio.” --Wilbur Wright, 1910

Blucinic's picture

Great commentary. Also fully agree with the ending points:

  1. You can't have it both ways regarding the NCAA. I'm tired of hearing all the complaints about the NCAA being impotent and weak, and then hear complaints about how unfair they have been in with the punishment levied on PSU.
  2. Sometimes, all fans have to take a reality check and acknowledge that this could happen anywhere. Fans can't blindly support their school, "no matter what." As a Michigan fan, I'm reminded of that today with two players making bad decisions.
Yamosu's picture

I think its a pretty rediculous assumption that Ohio State would embody the same level of fanaticism as what took place at Penn State.  Their willingness to stay unquestionably loyal to a person who wielded almost god like powers and was then worshipped like an idle is something beyond reason...
/picks up his tressel vest from the dry cleaners
//hangs up his woody hat on the mantel
///laughs at tiger woods for missing another opportunity to get closer to breaking jacks record

cronimi's picture

+1. Especially liked the 3rd 'slash'. That's one of the main reasons I root against Tiger.

jenks's picture

I'm not sure how much I believe this theory, but, I have to imagine a lot of that fanaticism is due to how isolated psu is. Cbus is a big area. Cleveland, and Cincinnati aren't far. Michigan fans exist throughout the state. It seems, physically, there are a lot more checks on a school like OSU (or USC, among a million others).

BuckeyeSki's picture

Penn least there's basketba....uhhhh...wrestling season

Banned from BlackShoeDiaries since 2008. Crime: Slander/Defamation of Character Judgement: Guilty

cronimi's picture

Women's volleyball. 

jenks's picture

and volleyball
EDIT: beat me to it!

lamplighter's picture

new motto overheard today:
We were --- Penn State

Johnny Ginter's picture

one thing i want to point out about the last part of this post is that i think, overall, OSU as an entity is probably better than PSU about this type of thing. we've had zero qualms in the past about shitcanning massively successful and popular coaches who've stepped out of line, and given how much staff turnover OSU football typically has had and how public everything is, i dont think you'd ever see administrators collaborating with a football coach to cover for a pedophile.

still, i hope we never get to that point

NC_Buckeye's picture

shitcanning massively successful and popular coaches who've stepped out of line

I also think our football culture as it relates to coaches is not as extreme as the Penn State community. The closest we've come to the cult-of-Paterno is Woody. And I remember back in the 70's listening in at the adult's table to criticism about Woody Hayes' temper. From hearing some of the stories later as an adult -- I've got to say that his players had a lot more composure than I would have had. The first time he grabbed me by the facemask and jerked my head around (as I've heard and read from a couple different players) -- that old man would have been on his ass. Just saying.
Rest in peace, Woodrow.

buckeye76BHop's picture

I agree Johnny...even though Gordon sometimes reminds me of one (may be it's just the bow tie...Idk).  I doubt he or any of the admin at OSU would have let this go if they even caught wind of the slightest of what those did at PSU.  As far as John Marshall and Mark Emmert...I do see a slight resemblance;-)

"There's nothing that cleanses your soul like getting the hell kicked out of you."

"I love football. I think it is most wonderful game in world and I despise to lose."

Woody Hayes 1913 - 1987 

Buckeyes_Terrapins's picture

Nice article, as always, J dawg. I can't help but wonder what could be accomplished if, as a nation, we were able to apply the degree of acumen exhibited during this proceeding to our current politico-economic woes. The focused, scholarly and deservedly serious tone that has been ubiquitous outside of State College could go a long way to reversing the decades-long trend of consumerist and media frenzy-driven anti-intellectualism and knee jerk reactionism that has polarized our national political discourse to the point we see today.

Poison nuts's picture

Really great stuff here. Could this happen anywhere? I'd like to think not...but then again - I'm not rooting for the school where the coach was the winningest ever & was at the school for over 40 years. Hard to know how you'd feel in this situation. Still- I'd like to think I wouldn't fall victim to hero worship...

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

baddogmaine's picture

I hope Gordon Gee is studying the NCAA pronouncement, because the next time OSU is investigated - and we will be - and he expresses his concern  that an implicated coach not fire him he is begging for his insitiution to get whacked for a systemic lack of oversight and a culture of arrogance. As Johnny points out attitude may matter as much as violation of rules.

baddogmaine's picture

I am a criminal defense lawyer who has spent a career insisting that law and laws mean something. Many of my clients have been "not nice" in the extreme, but if the State can not prove that they violated the letter of a law they go free, their culture of arrogance be damned. Or at least this is how most Americans raised on the glory of our Constitition think it shoud work. Instead, I have learned that too many judges, especially those with the greatest power, care less about law than they do about imposing their own philosophy on society. Decisions too often are based less on a plain reading of statutes and precedence and more on what results the tribunal wants to reach. Smart judges, the Scalias, spend thousands of words creatively sculpting a landscape; less scrupulous magistrates govern by edict.This upsets me as a professional who thinks this should be a world of laws, not men. It terrifies me as a citizen who in 55 years has seen that power corrupts and absolute power corrupts absolutely.
We should all be outragted by what happened at PSU. But if we believe in a society in which fundamental fairness matter we should be just as outraged by what the NCAA just did. Tough cases often result in bad law; and rushes to quick decisions and morally-inspired retribution result in  bad worlds. PSU was going to be stripped of the leaders who enabled the coruption; the criminal trials have only just begun; the fines and civil judgments were already going to cost the school deep in its purse. It was going to have to change its attitude or lose signficantly in the court of public opinion if not the PA legislature that controls its funding - the NCAA dd not need to act as it did. In the absence of clear violations of NCAA rules by acting the NCAA has harmed those of us unffiliated with PSU who believe that law and laws matter. If the laws need to be changed to cover a PSU situation in the future then get to it, but as it was the NCAA grossly overstepped what we as a society need from them. And in contributing to the erosion of respect for law it has hurt us all.

Crimson's picture

#1  The NCAA is not the law/government.  They have authority to punish over moral as well as "legal" violations.
#2  Freeh report.  It's more of an investigation than the NCAA could ever put together.
#3  Penn St accepted it.  BOOM.

baddogmaine's picture

This is a fine demonstration of the loss of respect for a rule of law. Freeh was not looking at PSU through the lens of NCAA bylaws, and PSU did not accept his report as such. The report made  some findings but those findings do not correlate with NCAA laws. Unless and until you can identify specific NCAA bylaws broken by PSU you are granting to a tribunal the powers not only to decide what is and is not acceptable to that tribunal, regardless of the tribunal's identfied authority, but permitting that body to dispense with a process affording any degree of fairness. It is the star chamber of the Spanish Inquisition. It is the McCarthy hearings. It is the antithesis of a constitutional democracy.
When the organization is but one of many a person or institution has the opprtunity to leave the orgnization. Don't like the way the WWF operates? join a different boxing legislative body. But the NCAA has a monopoly over a multi-billion dollar enterpise. As such it is subject to requirements of Due Process. If you want to challenge this on legal grounds I'll be happy to oblige. But Boom is the nickname of a running back, not the level of analysis I look for about quasi-legal bodies.
We as a society will only have the freedom we demand. When we start allowing those in power to act as they choose because we agree with the result it is just a matter of time before we find ourselves in literal chains.  This is not about athletics, it is about how we as a society want to live. PSU may accept the NCAA sanctions (though I question how they could safely have challenged them); I as a United States citizen find them deeply troubling for what they represent and where they are likely to lead.

smith5568's picture

Are private entities subject to Procedural Due Process? I am currently in law school and do not recall learning that private entities are subject to Procedural Due Process. I would argue that there is no state action, therefore no violation of rights. Plus, PSU entered into an agreement to accept the penalties, so they waived any due process right they may have had and the issue is non-justiciable. You have years of actual experience that I lack, however this is how I view the issue.
Also, I don't view the NCAA as anything even remotely similar to our government and legal system. I view them more as a "commissioner", like Roger Goodell. The ruling by the NCAA is not about how we as a society want to live, it is about how the NCAA wants to govern its members.
Judges often act as legislators, and many times that is out of line. But, our constitutional democracy was built on common law and the ability of judges to shape the way laws are to be interpreted in light of our societies current values. Honestly, there are times when I would rather have a judge "legislate from the bench" than have an elected official formulate some law that they feel is best.
There is no way for any governing body to create laws that encompass every possible scenario, that is why judges are allowed to interpret these laws. Situations arise that require a judge to interpret the law in order to satisfy the interests of justice. Even though equity courts are no longer in existence, the principles of equity still remain, and a judge may decide a case based on equittable grounds. That is the case here, the interests of justice demanded the NCAA do something. 
If governing bodies had to formulate laws for every scenario the statutes would become unwieldy and poorly written (too late). Furthermore, that is impractical because the process for enacting legislation is so lengthy.
Lastly, +1 for Scalia.       

baddogmaine's picture

I doubt that 11W wants to host a complex dicussion of jurisprudence, though I appreciate your willingness to engage and when  I get home at the beginning of August (I'm travelling now) will be happy to continue this outsde this blog.
For  now I will agree that the 14h Amendment refers to "state" action, but quasi-gvernmental entities are also subject to some requirements. The NCAA is subject to "fairness" obligations - look at the protracted Jerry Tarkanian litigation the NCAA lost.
Johnny referred to a "slippery slope" this case occupies. In law school I learned that slippery slopes are not entirely legal. In 30+ years of practice I have learned that the absence of firm guidelines almost always hurts the powerless and unpopular. I do want judges to have powers in equity to act in ways not precisely spelled out to craft particularized remedies, but such powers are necessary to protect liberty, not restrict it. PSU did agree to be subject to the rules established by the publicly disseminated NCAA laws and bylaws - it never agreed to give Emmert, whatever his title, the powers of a benevolent dictator.  This case now has authority in NCAA enforcement, and to the degree that the public approves of what Emmert did it will grant similar power to real courts - and having read a fair number of decisions it is inevitable that some court is going to cite the PSU order in an unrelated situation. 
Once on the slippery legal slope it is very difficult to stop sliding down. PSU may be agreeing to take the punishment - in large part because the financial and PR costs of fighting would be prohibative -  but we the people have a right to complain. I would argue that there is actually a duty to oppose tyranny but that's another subject.

smith5568's picture

The longer I am in this legal mindset, the more I find that I enjoy discussing issues with others to gain perspective and hash out ideas, so I too appreciate your willingness to discuss these things with me.  
I do not believe that what Emmert and the NCAA did will grant similar power to real courts. I find that to be a difficult leap to make. I do not think that the public would be OK with a court acting the way Roger Goodell does in the NFL. The reason the NCAA or NFL can just impose punishments is because they are self-governing bodies that, I would argue, do not affect civil liberties. I will say that your years of experience have probably given you a better perspective than my measely 2 years of school, but I find it scary and hard to believe that a court would cite to this situation in order to rule on an issue the way they would like. 
I also think this situation is an extremely exceptional circumstance that called for action. For example, suppose a code section defines the offense of rape but the legislature forgot to or did not think to include oral sex. Do you think the court should let someone who engages in this activity go because it is not in the statute? I do not think that if the court convicted the person in this situation it would constitute a "slippery slope", it is common sense. 
Furthermore, I believe that Emmert and the NCAA did not conduct their own investigation and go through the normal procedures for two reasons. First, the Freeh report covered everything they would have so their investigation would have been reduntant, extremely expensive, and time consuming. Second, I have a feeling PSU was trying to get this whole process over with and behind them as soon as possible and the NCAA obliged. 

baddogmaine's picture

The Emmert report by itself did not grant courts anything. But if the public expresses approval of the Emmert mode of addressing a situation then courts,  ever anxious to expand their powe, as Johnny pointed out in MARBURY v MADISON - will take it.
Criminal laws must be exactly defined. If "rape" is defined in such a way as to not include oral sex then oral sex is not rape. Period. Having said that the Maine Supreme Court, unhappy with the history of the definition of "duress" adopted by the Maine Legislature, indeed said that the Legislature could not have intended what the historical record said it did and wrote its own definition. Though there is a separation of powers that is where the Emmert decision leads.
The PSU situation did not call for extreme measures in part because few situations should ever be used to reject the rule of law and due process (small letters). Moreover, this was not an emergency. The abuse had stopped; the criminal process was ready, willing and able to deal with those who broke laws; the civil pocess was going to exact civil judgments and possibly injunctions; and the public, except for the most rabid of PSU fans, were going to force changes with boycotts and other legal means. Hard cases make bad law. And the height of emotional outrage is rarely a good time to make difficult decisions. Freeh did not look at whether PSU violated NCAA rules. If the NCAA wanted to punish it needed to act in a manner consistent with the "freedoms" we claim to value. 
I will  also point out that the NFL is adults engaged in very-much-for-profit endeavors. The rules they are subject to are clear, and the players' actual gains offset the sacrifices they have to make to play pro football. As we are told over and over students are engaged in not-for-profit endeavors. The students paying PSU tuition never agreed to have their university hit with crippling financial penalties that will likely result in tuition increases and cuts in program. The students now plying football, the coaches now on the payroll, are entirely blameless and while what they are suffering is not comparable to what Sandusky's victims suffered they are nonetheless victims too.
("Rape" in many places requires genital penetration. Historically, forced oral sex in Maine was a crime but it was not rape. (Maine currently does not have a crime of "rape" at all.) Your "common sense" is quite a bit short of universal, and is a dangerous basis for granting the power to impose draconian punishments.)

smith5568's picture

Guess we can agree to disagree. 

Crimson's picture

#1  See previous #1.  Also, a blanket law below.
Unethical conduct by a prospective or enrolled student-athlete or a current or former institutional staff member (e.g., coach, professor, tutor, teaching assistant, student manager, student trainer) may include, but is not limited to, the following . . .
#2  We're on a football forum, and you're seriously going to insult me by implying that I don't know of Dan "Boom" Herron?  Fine, but I typed "BOOM."  I know you lawyers are uptight and all, but the caps were there for a reason.  (Also, you can't start a sentence with "But," at least not the way you did it.)  It's the catchphrase of Chef Fabio, who cracks me up.
#3  What does the World Wildlife Fund have to do with boxing?
#4  I'm not here to debate with you about formal law.  Do that on a law forum or with SMITH.
Good day.

grant87's picture

The presidents and chancelors allowed him the power this time.  I don't think he will get it as he wishes.  It will take something much more than "extra benefits" or even a DUI to get it again. 
How do you know the victims wouldn't find some justice in this?  If it was my son...I would enjoy watching it burn.  I would enjoy watching people go to jail as well. 
Did like the read, thanks.

Maybe tomorrow, when today will be yesterday things will be clearer.


Pam's picture

If it was my son, I would light the match