This could be prove huge: Penn State Board of Trustees is meeting to discuss if President Erickson lacked the legal authority to sign the consent decree with the NCAA without first getting its approval. As I discussed yesterday, the invalidation of the consent decree strategy may be the best one for those who believe Penn State should fight the penalty.
Update 7/26: The Board met into the evening, but declined to vote on whether to rescind the consent decree. The board was apparently deterred by the possibility of a worse sanction from the NCAA if it fights it. Of course, the decision not to fight traces back to an on-going discussion on this blog about the NCAA not having to provide its members due process because of the Supreme Court's decision in NCAA v. Tarkanian.
Process and Due Process
Tim does a great job exposing the problems with the complaints about due process and consent decrees, as Mike initially discussed. I want to add two more thoughts.
First, the mistake people are making is to assume that only the state or a state actor can provide process and thus to settle or enter "consent decrees."But any large organization can (and frequently does) accord process as part of its decision making. Think about how, say, a private university adjudicates student disciplinary matters. Providing process does not make a private entity a state actor. But a private entity that provides process can accord whatever process it believes is fair or appropriate; it is not bound by constitutional notions of what process is due, but only what its members (and perhaps the public) regard as fair. Similarly, if a private entity wants to call the resolution of its private processes a "consent decree," it is free to do so, without any state action or constitutional implications.
Second, it is worth considering how we should understand the Freeh Report from a due process perspective. The Paterno family has repeatedly (after thes tatue was removed and again after the penalties were announced) complained that their lawyers never were given an opportunity to cross-examine witnesses or to call and question their own witnesses. The Freeh Report thus was a one-sided "prosecutor's brief," and PSU's and the NCAA's reliance on the Report disregards due process.
But another way to look at the Freeh Report is as a decision by a judge in an inquisitorial judicial system, where the judge, acting as a neutral factfinder, gathers information himself. Attorney involvement and control and cross-examination of witnesses are not a core part of these proceedings; thejudge is charged with calling and questioning witnesses and gathering evidence to make a decision, including finding facts and drawing inferences. This certainly sounds like Freeh's charge from the Penn State Board of Trustees andit certainly sounds like what the Freeh Report sought to do. While different from the adversarial system that generally (although not exclusively) prevails in the United States, it cannot be that reliance on inquisitorial processes violates due process.
First, the mistake people are making is to assume that only the state or a state actor can provide process and thus to settle or enter "consent decrees."But any large organization can (and frequently does) accord process as part of its decision making. Think about how, say, a private university adjudicates student disciplinary matters. Providing process does not make a private entity a state actor. But a private entity that provides process can accord whatever process it believes is fair or appropriate; it is not bound by constitutional notions of what process is due, but only what its members (and perhaps the public) regard as fair. Similarly, if a private entity wants to call the resolution of its private processes a "consent decree," it is free to do so, without any state action or constitutional implications.
Second, it is worth considering how we should understand the Freeh Report from a due process perspective. The Paterno family has repeatedly (after thes tatue was removed and again after the penalties were announced) complained that their lawyers never were given an opportunity to cross-examine witnesses or to call and question their own witnesses. The Freeh Report thus was a one-sided "prosecutor's brief," and PSU's and the NCAA's reliance on the Report disregards due process.
But another way to look at the Freeh Report is as a decision by a judge in an inquisitorial judicial system, where the judge, acting as a neutral factfinder, gathers information himself. Attorney involvement and control and cross-examination of witnesses are not a core part of these proceedings; thejudge is charged with calling and questioning witnesses and gathering evidence to make a decision, including finding facts and drawing inferences. This certainly sounds like Freeh's charge from the Penn State Board of Trustees andit certainly sounds like what the Freeh Report sought to do. While different from the adversarial system that generally (although not exclusively) prevails in the United States, it cannot be that reliance on inquisitorial processes violates due process.
Penn State: Dispelling the "Due Process" Myth and Perceived Precedential Value Problem
As to the due process issue, the NCAA administrative law process does not accord Federal or state constitutional due process protection for those parties that go through enforcement proceedings, be it student-athlete reinstatement (SAR) or infractions. The U.S. Supreme Court made it clear that the NCAA is not a governmental actor and thus is not obligated to provide due process. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 179 (1988). The NCAA is a private association made up of members that include schools and conferences. Those schools and conferences agreed to abide by the Association rules, including potential punishments for violations of Association rules, analogous to a country club and its members. (Bylaw 3.3.4.1). Schools and conferences are voluntary members of the NCAA, and therefore must abide by the associated rules and regulations. See, Hispanic Coll. Fund, Inc. v. Nat’l Collegiate Athletic Ass’n, 826 N.E.2d 652 (Ind. Ct. App. 2005) (holding that the NCAA’s decisions regarding organization were not subject to trial court’s review absent allegations of fraud or illegality, because the organization was a voluntary member of NCAA). Furthermore, “[t]he articles of incorporation and bylaws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.” Id, at 658. Therefore, member schools are under an enforceable contract with the NCAA and subject to its rules, regulations, and any punishment it may sentence. Bylaw 19.5.2 lists all the appropriate penalties for major violations, including (l): other penalties as appropriate.
Courts have been, and remain, reluctant to accept challenges to the substance of NCAA enforcement decisions; the Oliver case being one of the few exceptions. See e.g. Justice v. Nat'l Collegiate Athletic Ass’n, 577 F. Supp. 356 (D. Ariz. 1983) (upholding NCAA sanctions for recruiting violations and denying student-athletes’ constitutiona land antitrust claims); but see Oliver v. Natl. Collegiate Athletic Assn., 2008-Ohio-7144, 155 Ohio Misc. 2d 1, 920 N.E.2d 190. Further, membership must tread lightly in either going to court to challenge a decision or, more likely, abiding by a court ruling overturning a NCAA decision pursuant to injunctive relief sought by a student-athlete, since the NCAA reserves the right to punish a member institution should an appellate court later reverse alower court’s ruling overturning a NCAA decision. See, e.g. Nat’l CollegiateAthletic Ass’n v. Jones, 1 S.W.3d 83 (Tex. 1999) (holding that the NCAA’s appeal from an injunction granted at the trial court level was not moot as to the applicability of retroactive penalties). Challenges to the NCAA administrative law process are for when the NCAA is not following its own “fair process.” So, the question applicable to Penn State is whether the NCAA did, in fact, follow its own fair process.
The fair process established by the NCAA can be found in Article 32. From start to finish, including investigations and hearings, the infractions process takes over a year in most cases. The process includes a preliminary investigation, the possibility of summary-disposition, notice of inquiry, notice of allegation, institution investigation, written responses to the allegation, hearing, final Committee report and possible appeal. For example, allegations of impermissible recruiting and student-athletes receiving benefits from professional agents at the University of South Carolina first came to light in July 2010. The Public Infractions Report was issued two years later on April 27, 2012. On the other hand, the overall process with Penn State took about nine months.
However, with Penn State, the NCAA did not follow the infractions process established in Article 32. So, does the NCAA's failure to follow its already-established process of investigation, enforcement, hearing, deliberation, decision, and possible appeal violate the fair process that it is bound to follow? Yes and no. A "quick look" analysis reveals that punishment was delivered by the NCAA President without regard for the existing NCAA enforcement structure; something not specifically articulated in NCAA bylaws, and certainly not something for which we see any precedent. However, the only party with standing to challenge the NCAA's declaration is Penn State, and Penn State consented to this punishment; ergo we now have a moot challenge.
While I believe the less controversial route would have been an expedited infractions process that would necessarily include a summary disposition (the July 12, 2012 Freeh Report helps in this regard), for the Penn State community to heal, I have to think ripping the band-aid off quickly in the manner done here with Emmert's decision yesterday, while not ideal, is preferable to a drawn out infractions process.
Langganan:
Postingan (Atom)
