The NCAA imposed tough, but not brutal, sanctions on Penn State this morning. It was fined $60 million (to be used to fund child sexual abuse programs), stripped of a heap of scholarships, and banned from bowls for the next four years. Oh, and Penn State was stripped of all wins since 1998. (Will the NCAA collect and redistribute all the bowl trophies from that period to the rightful winners?)
I take it that much of the punishment is intended to deter future offenders while reducing the risks and costs of chid sexual abuse going forward. These seem to be sanctions driven by utilitarian impulses. Would retribution also have been appropriate?
The NCAA polices the integrity of college sports. It's supposed to insure a level playing field. And when it comes to that limited task, there seems to be no call for anything other than utilitarian sanctions. Channeling communal outrage - strong as such anger might be towards cheaters - just doesn't make sense for what is essentially a violation of club rules.
Something different happened in this case, however. The loss of institutional control caused serious harm to both NCAA members and non-participants in the club. It is clearly within the power of prosecutors to sanction illegal acts by individual actors or even the corporate entity Penn State. But should the NCAA join in on this project as well?
It seems to me that this was essentially the question the NCAA had to consider when it evaluated imposing a death penalty on PSU. My sense is that the sanctions actually imposed will radically re-write the way Penn State athletics operate and render it exceedingly unlikely we'll ever see a replay of this story in State College. Indeed, I think the sanctions are sufficient to scare the hell out of lots of other schools. They meet utilitarian needs.
But should the NCAA do more? And if the NCAA is to dole out retributive sanctions, ought they be for the suffering of the other NCAA schools? Other NCAA athletes and employees? Or society at large?
My sense is that retribution is a purely public function left to the state. But I wouldn't be surprised in coming days if people accuse the NCAA of being soft - not because the sanctions are insufficient to work but because they are mundane and do not reflect the severity of the case. They don't make Penn State suffer sufficiently.
Of course, maybe these claims will really be utilitarian in nature: unless the NCAA is cleansed fully, both the regulator and all the members will be forever tainted by the scandal. And that could cause immeasurable damage to the college athletics industry. "Student athletes" and all.
Your argument about retribution being a public function reiterates the fact that NCAA v. Tarkanian should be overruled. Here is a multi-state quasi-public consortium consisting largely of public universities and funded by taxpayers. It is a classic "state actor" for 1983 and state-level admin law purposes. Given the size of the award I wouldn't be surprised if PSU sued. The deviation from standard NCAA procedure is likely a contract breach, and a possible arbitrary and capricious decision for state admin law purposes or even for the purposes of those jurisdictions which hold private associations in the educational context to that standard.
Posted by: AndyK | July 23, 2012 at 10:20 AM
"Given the size of the award I wouldn't be surprised if PSU sued."
Not going to happen. PSU agreed to it.
In Happy Valley, football was/is Religion, fueled by vast quantities of money. That's how a predator was able to rape children with impunity. To turn your sentence around, "I wouldn't be surprised if PSU were sued."
Posted by: Doug | July 24, 2012 at 10:12 AM