By: Arthur R. Miller, Arthur Caplan, and Lee Igel
Last summer, a blistering report by former FBI Director Louis Freeh found the Penn State University administration and athletic departments guilty of failing to respond to concerns about convicted sexual predator and former football coach Jerry Sandusky. Two weeks later, the NCAA imposed sanctions on the university. The penalties were severe, including a whopping 60 million dollar fine, yanking dozens of athletic scholarships, and banning the football team from any bowl games for four years. Now, Tom Corbett, Governor of the Commonwealth of Pennsylvania, is suing the NCAA.
Plenty of people and pundits are outraged that Pennsylvania looks like it is trying to weasel out of the penalties. But that’s not what is going on.
Where the NCAA and the Commonwealth of Pennsylvania disagree is over who controls the money involved in the fine. NCAA officials figure they should decide where the funds are spent. Pennsylvania insists the funds be used to pay for programs in the Commonwealth.
The complaint was filed by Governor Corbett on behalf of all the people of Pennsylvania—parens patraie. It claims that the NCAA sanctions are damaging the entire state’s economy. It effectively calls the NCAA’s actions “arbitrary and capricious” and a “restraint of trade.” This explains why Corbett wants control over the fine monies.
What this sets up is a classic antitrust case—but a very tough one to win.
This round has nothing at all to do with Jerry Sandusky, or the former football coaching legend, Joe Paterno, or the former President of Penn State, Graham Spanier, or anyone else involved in the tragic abuse that occurred at the university. Nor is it about students, alumni, and fans, some of whom bitterly resent the penalties. Instead, the court battle has to do with taxpayer dollars. And that, actually, may be the basis for an examination of what happened at Penn State that has far more profound implications than whether Paterno’s name should stay on the library.
The core of the suit makes a stark and amazing allegation:
“The NCAA took the public position that its unique and unprecedented actions were necessary to correct a ‘culture’ at Penn State that improperly exalted the football program to a position of ‘deference’ and ‘reverence’ within the university. While the role of football and other high-profile sports on college campuses is certainly a legitimate subject for debate, the notion that this phenomenon is in any way unique to Penn State defies credulity. Moreover, given the NCAA’s pivotal role in creating and profiting from the ‘culture’ it now decries, its stated justification for its attack on Penn State and the Commonwealth must be viewed as a pretext for the real motives of the NCAA and its president: the opportunity to gain leverage in the court of public opinion, boost the reputation and power of the NCAA’s president, enhance the competitive position of certain NCAA members, and weaken a fellow competitor.”
Of course, what happened at Penn State was horrific. And, arguably, the NCAA can punish the university for propagating a culture of football über alles. But, as is specified in the complaint, “the notion that this phenomenon [glorifying football] is in any way unique to Penn State defies credulity.”
When it comes to the question of whether football is only out of control at Penn State, the Governor raises a very important question.
The lawsuit brought by Corbett may provide a wake-up call for both the NCAA and universities as to their governance responsibilities. Today, more than any time before, it’s tough to manage secrets. So, the NCAA and universities will have to increasingly manage athletic programs and personnel far more openly than they have in the past. This will also mean bringing some clarity to the ambiguous status and role of the NCAA.
The real question that needs an answer to the lawsuit’s core question is, Will a meaningful governance mechanism be put in place to reduce the possibility of anything like the tragedy and coverup at Penn State from happening again—anywhere? Or will there just be a return to the hugely lucrative business of big time college football?
Corbett’s lawsuit is somewhat parochial in that it is a fight between the NCAA and Pennsylvania about how to spend money. So, it may not reach the far larger questions of the role of athletics on college campuses and where the responsibility to oversee those programs lies—institutional trustees and administrators, athletic directors, coaching staffs, the NCAA, or all of them. But at least it kicks open the door to such questions.
At present, the NCAA is the governing and organizing body for the intercollegiate athletic programs of more than 1200 educational institutions. There are dozens and dozens of scandals to make one think that it is not doing its job when it comes to the oversight of the big business of college sports. For its part, Pennsylvania is not asking for justice to be undone, only that the whole state not suffer for the acts of a few. However, the reasons offered for keeping the money involved in the fine inside the Keystone State provide ample fodder for a long-overdue reexamination of the adequacy of the governance of big time college sports.
Arthur R. Miller, CBE, is University Professor at New York University and regarded as the nation’s leading scholar in the field of civil procedure. Arthur L. Caplan, PhD, is the is the Drs. William F and Virginia Connolly Mitty Professor and head of the Division of Bioethics at New York University Langone Medical Center. Lee H. Igel, PhD, is associate professor in the Tisch Center at New York University. All three are affiliated with NYU’s Sports and Society Program.