Tuesday, 7 August 2012

Penn State Scandal Lives On

The clear purpose of the NCAA's investigationless sanctions on Penn State last month was to put this matter to rest. It didn't work.

We now have the prospect of months of federal litigation challenging the process underlying the NCAA's punishment of the university, and the power of university President Rodney Erickson to enter into a consent decree forfeiting the school's right to challenge the sanctions. Disgruntled trustees from the university have now asked the NCAA for an appeal and apparently, says ESPN, plan to sue.

If we do find ourselves in court, we may learn some interesting things about the NCAA's status as a "state actor" in light of Brentwood Academy. But at least one argument suggested by the dissenters -- that the University's president didn't have the power to sign the consent decree without full board approval -- seems hogwash. Under Pennsylvania's Higher Education Code, the President "shall administer and manage the institution," while the Board's job is to formulate "basic institutional policy." I'm not sure how signing a consent decree with a voluntary association falls outside of "administer[ing] and manag[ing]." While the letter of appeal makes reference to the "charter", "bylaws" and "standing orders" of the Board, it's pretty vague about how the consent decree violates any of those guiding documents. Page S-10 and S-11 of the standing orders do require the Board to be involved in certain kinds of decisions (sale of valuable land, etc.), but the NCAA consent decree doesn't appear to fall under any of these enumerated areas.

Even if the President lacked that authority, say, because the board had directed him to come back before entering a consent decree, he clearly had "apparent" authority and the board also seems to have acquiesced to (if not ratified) his actions by not objecting at its July 25 meeting.

As Mike indicated to MSNBC, the Paterno family's effort to interpose itself in this appeal, while understandable, wasn't going anywhere. This challenge by disgruntled trustees, while it is likely to ultimately be unsuccessful, at a minimum will drag this on beyond the start of the season -- defeating the entire purpose of the NCAA's abrupt and sudden effort to move past this scandal.

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