How the NCAA claims due process exclusively to itself

Disclaimer: I am not a lawyer, I just play one on the internet.

On September 26th 2013 the NCAA and it's lawyers filed a response to the Paterno motion not to dismiss their lawsuit. In this document virtually every argument the NCAA makes is both contradictory to the facts, and in essence makes the case of why they should have given PSU due process. What follows is a piece by piece look at some of the arguments.

You can find the full NCAA response document here.


NCAA argument #1: "Plaintiffs cannot simply invent their own self-serving interpretation of the Bylaws - a contract to which they are not even a party - and the unilaterally assert the NCAA breached it."

The blatant hypocrisy in this statement is galling. In the history of the NCAA prior to this case no school had ever been sanctioned without first having been found in direct violation of an actual rule regarding athletic competition. Ever.

On the morning of July 23, 2012 Mark Emmert also stated the following. "We cannot look to NCAA history to determine how to handle circumstances so disturbing, shocking and disappointing. As the individuals charged with governing college sports, we have a responsibility to act. These events should serve as a call to every single school and athletics department to take an honest look at its campus environment and eradicate the ‘sports are king’ mindset that can so dramatically cloud the judgment of educators.”

If you look at the "rule violations" that the NCAA states in the Binding Consent Decree you will not find any that deal with actual rules violations related to a sport (go here to see the Bylaws and Articles quoted). What they list is all general "morals" and "ethics" clauses. Needless to say if questionable morals and ethics are now the standard then almost every college football team is in serious trouble along with the NCAA itself (Miami case? UNC case? UMD case? ND case?, etc).

Additionally since there has never been a precedent (Emmert said it himself) for such acts, including the consent decree, then perhaps it might be fair to litigate the response to the acts at PSU? 

So what we have here is the statement of Mark Emmert on how there was no historical precedent for the sanctions, and so they found a way to twist the language of the Bylaws and Constitution in order to impose sanctions. Then the NCAA turns around and argues that those whose rights were violated are prohibited from interpreting any possible bylaws in their favor. Then they make the opposite argument in the lawsuit. "You can't use unprecedented methods to rectify our unprecedented actions".

NCAA Argument #2: "Indeed the very existence of the reports the plaintiffs point to that purportedly critique the Freeh Report demonstrate that the public was able to evaluate the facts in the Freeh report themselves. "

This argument is a reference to expert reports (see www.paterno.com, www.sanduskyreports.com, & www.notpsu.blogspot.com) that have been very critical of the initial conclusions and findings in the Freeh Report. What the NCAA fails to mention here is that it has taken months and months to complete an exhaustive analysis of the Freeh report in it's entirety (indeed this is still occurring as we speak). This argument additionally ignores that the NCAA sanctions were handed down less than two weeks after the release of the Freeh report which, clearly not ample time to properly check and source the entire document. So more than a year after the fact, as several highly critical reports have shed light on just how bad the Freeh report is, the NCAA tells us it's fair that they handed down punishments before any of those reports because now after the fact those reports exist!


NCAA Argument #3: "The university would always have to endure a lengthy investigation and hearings, with the attendant discussion of unflattering facts and a hit to its recruiting and alumni support due to the negative publicity and uncertainty of the infractions process.

The argument that it is better to get the bad stuff out of the way now compared to possibly worse (or of course better) outcomes in the future. Here the NCAA is telling us we should be grateful because a long investigation (even if it proved PSU correct and "not guilty") would have been worse. First if you refer to the last argument you will see that any delay would possibly remove the momentum, ability, or reasoning for the unprecedented sanctions in the first place, based on the tremendous amount of additional evidence brought to light by other reports. In particular we would now know that the so-called "Janitor incident" could not have possibly taken place as claimed by the state of PA or Freeh based on Ray Blehar's work. Considering this incident was described as "the most horrific rape" by Louis Freeh it surely was the basis of the NCAA being so harsh. What happens when you remove "the most horrific" crime? In this case, with such a complicated web of politics, money, and access time could only possibly help PSU.

NCAA Argument 4: "Such supporting necessary to permit it to fairly defend itself."

Here the NCAA demands more evidence and more information to "fairly defend itself". This despite the fact that the NCAA itself used a horribly flawed report and no official due process, as required by it's own bylaws, in levying the sanctions in the first place.


Conclusion:


The NCAA is not holding itself to the same standards it wishes to hold the plaintiffs in the lawsuit. They are admitting, on record, that they deserve due process of the rule of law while steadfastly ignoring due process and the rule of law in levying the sanctions on Penn State. This is what the NCAA has become. This is why it must be disbanded.