Penn State-Sometimes the Innocent Need Punishment

Jerry Sandusky and Joe Paterno

Hey, I'm still around. Been working on my stupid Mad Men post for what seems like forever. Its gonna be really good. By which I mean, tedious and with lots of philosophical observations about things that don't really matter. Pretty much right in my wheelhouse, if you've ever read my posts.

Meanwhile, we need to look at the Penn State situation. Well, not really Penn State as such, but the punishment that the NCAA's levied against Penn State's football program.

Unless you've been living under a rock or in Monahans, Texas these past few months, you know that a former Penn State assistant football coach, Jerry Sandusky, spent the last 20 years or so molesting area children. Sandusky used his connections and access to the football program to lure his victims. Head coach Joe Paterno, as well as the university President and other senior Penn State officials were aware of Sandusky's assaults for years. Not only did they fail to notify law enforcement authorities, they actively concealed evidence of Sandusky's crimes. The University hired former FBI Director and federal judge Louis Freeh to conduct an investigation, and he concluded that these officials engaged in a conspiracy to cover up Sandusky's crimes to avoid bringing adverse publicity to the football program. The school fired Paterno, who has since passed away. Other officials have resigned and are under indictment.

The NCAA, which regulates college athletics, just imposed severe sanctions which the University has accepted. These include a $60 million fine (the football program's average yearly revenues),  significant scholarship reductions, a four years post-season bowl ban, and so forth. The NCAA will allow current Penn State players to transfer to other schools without sitting out the year that would normally apply (but other schools must still comply with their own scholarship restrictions, thereby limiting other schools' ability to absorb Penn State players). The Big 10, Penn State's conference, also will withhold Penn State's share of the Big 10's bowl revenues during its four year bowl ban. Generally, the NCAA's rules focus on creating a level competitive "playing field." The NCAA typically imposes sanctions when universities or boosters pay players or when players receive impermissible benefits. Sanctions usually include reduced scholarships; severe violations can merit prohibitions against bowl participation and television appearances. The NCAA has not previously punished an institution for its employees' criminality to my knowledge. The Penn State sanctions go far beyond previous NCAA sanctions, except in the 1980s where it applied the "death penalty" to the SMU football program, in which it banned SMU from playing football for an entire season.

While many have applauded the NCAA's actions, some have criticized these actions as "punishing the innocent." Clearly, they do. Severe scholarship restrictions will prevent Penn State from fielding a very competitive team. The inability to participate in bowl games or the upcoming national championship tournament will make recruiting even more problematic and deprive Penn State of significant revenue.  Football revenue at a school like Penn State funds not only the football program but other "non-revenue" athletics programs. So it will encounter even more difficulty funding the entire athletics program. With a less competitive team, fewer fans will attend games, hurting local businesses that rely on football weekend revenues to sustain their profitability.

But is it fair to the football players who will play on a terrible team instead of one of the top ranked programs, or the shop owners who may lose their business, or the hotel maid who may lose her job, or the defunded water polo team? Well, at least it will reduce the horse drownings. Reduce.

The answer is yes. A tough yes, but yes.

Lets look beyond the Penn State debacle and just talk about crime and punishment. Or in NCAA-speak, "violations" and "sanctions."

Any time the NCAA levies sanctions, it impacts people that had nothing to do with violating the rules. Scholarship reductions harm the team and the players. Bowl prohibitions impair recruiting and reduce needed operating revenue. Fines and TV bans have a similar effect. These direct effects can have downstream effects, as mentioned earlier. The more severe Penn State sanctions will no doubt have the same effect, only on a greater scale.

The NCAA consists of member universities, not coaches, not players, not cheerleaders and not Norman, Oklahoma LaQuinta owners (clad in red polyester leisure suits and smoking cigars at breakfast). The NCAA's rules apply to the member universities, and ultimately the universities bear responsibility to comply with them. The universities break those rules. Of course, they do so through the individuals acting on their behalf, but every institution acts through its officers and employees. How do you punish the institution? You punish the program directly, as through reduced scholarships or other actions that make it less competitive. When a program breaks rules intended to create some sort of level playing field, it gains an advantage that other programs lack. So punishing rule violations must reel back that program's unfairly earned competitive advantage. Put another way, the schools breaking the rules generally do so to make their teams more competitive than if they followed the rules. So the punishment must mitigate that unfair advantage.

Look, what would happen if the NCAA didn't punish the university, and limited its punishment to the actual wrongdoers? Its rules would lack any real deterrence. The university could always find some junior assistant patsy stiff on whom to pin everything, fire them, and escape any responsibility. It could utterly fail to monitor compliance and could tolerate rampant violations, knowing that it would, if caught, only need to fire the perpetrators without suffering any downside that could hurt the football (or basketball) program's competitive position.  Only punishing schools will incent them to require their employees follow to the rules.

Think about all those boosters only too ready to pay the players. You know, those wacky, cigar chomping, polyester wearing, rotten teeth having car dealers or other rich guys who give lots of money to the program so they can hang out with 20 year old football players. Or the Governor of Texas. The ones who would buy every blue chip recruit in the state a new Camaro and thousands of dollars in bling and weed and girls if they sign with dear old U.  You know, Miami in the 1980s. If you didn't nail the team itself when you discover this stuff, then the university would lack any incentive to control these people, and the boosters would have no reason not to violate the rules. After all, the NCAA can't do anything to them. The only way to control these people is to hurt the thing that motivates them-make the football team less competitive. 

The "innocents" also aren't quite that innocent. No, I'm not talking about 1998 Britney Spears either. They may not have violated any rules, but they enjoyed the fruits of rules violations. The fans enjoyed a more competitive team. The players played on a more successful team and enjoyed the accolades that brings. The university recognized higher revenues when more fans went to games, bought merchandise, and watched on TV. Cheating helps those who didn't cheat. Remember Enron, and all those frauds that made its stock more valuable? The shareholders didn't participate in any wrongdoing, but they enjoyed higher dividends and share value as a result. At least until the whole thing fell apart. Thanks for quitting before you finished the job, Jeff Skilling. And if the NCAA doesn't punish the team and the program, incoming recruits won't take care to consider whether the universities recruiting them will follow NCAA rules. Anyone considering a scholarship to Miami or virtually any SEC school, for example, has to worry about whether that school will land on probation during their four years. So a program with an enforcement problem will experience some difficulty in assuring potential recruits they won't wind up on a sanctioned team. Punishing the team, even one with no players who may have participated in wrongdoing, helps incentivize everyone with a stake in the program to follow the rules.

Besides, punishment almost always entails some collateral damage beyond the person or institution punished. When criminals go to jail, it impacts their ability to support their families. When a corporation pays a fine or penalty, it may have to lay off employees to avoid bankruptcy.  When you ground your kids, you deprive their friends of their company.

Finally, the schools can't have it both ways on whether the players play for the school or the coaches. The NCAA allows universities to prevent players from transferring when the coach who recruited them leaves the school. Even though the new coach may institute offensive or defensive schemes that don't suit current players, the school can still keep the player at that school. The schools say that the players sign with the institution, not the coaches, and so their relationship is with the schools. The schools can't then turn around and claim that the team should suffer no adverse effects when the school or its boosters or coaches violate the rules. After all, the school and the players are all in this together despite coaching changes, so they're all in it together when the NCAA assesses sanctions. Its just one big happy family, right? Well, when the feds bust Dad, the kids are gonna suffer too.

The Penn State situation represents the most extreme and egregious behavior any university has committed, garnering the most significant NCAA sanctions. Admittedly, the players and most of the university community could not reasonably have imagined what the coach and top administrators had done. The impact that these sanctions will impose on them may seem unfair, but generally, the NCAA must impose sanctions that hurt those who did not directly violate the rules to prevent future violations.

Maybe if Penn State had taken to heart its institutional responsibility to comply with NCAA rules, or at least the Pennsylvania Criminal Code, it would have adopted controls and compliance measures that would have made it impossible for four bloated old guys to cover up such monstrous crimes just to keep those fat football checks rolling in. Instead, everyone was happy to worship at the "JoePa" altar and live off the bliss of all those wins and enjoy the game day celebration. Now we know what those wins and celebrations cost. So its absolutely fair to hold the University accountable in its entirety.

Got it?

Next-ok, what does Mad Men teach us about life? If you're curious, you put WAY too much emphasis on TV.