Courts Agree with Crisis Management Expert Steven Fink: NCAA Was out of Bounds Over Penn State Sanctions
A Pennsylvania judge last week issued a "sharp rebuke" to the NCAA for forcing Penn State University to pay a $60 million fine and expend it nationwide in the wake of the Jerry Sandusky child sex-abuse case, giving ammunition to those who argue in the case that the NCAA overstepped its authority when it imposed the most severe sanctions in its century-long history against Penn State in 2012.
The ruling in the case, (Corman v. NCAA, Commonwealth Court of PA, No. 1 M.D.2013) upholds and reinforces the opinions presented in Crisis Communications: The Definitive Guide to Managing the Message, a new book by best-selling author Steven Fink. In a chapter focused on the many mistakes made by the Penn State board of trustees in its "flagrant mishandling" of the Sandusky crisis, Fink refers to the NCAA as a brass-knuckled bully for forcing the University to accept unreasonable and unprecedented sanctions without first conducting a formal NCAA investigation on its own. The NCAA has a well-defined procedure involving its committee on infractions that normally would investigate any allegations of wrongdoing by a member school. However, in the Penn State case, the NCAA chose to ignore its own constitution and circumvented its own rules. Fink writes that the board should have insisted on such an independent investigation by the NCAA, but failed this critical fiduciary responsibility.
At the heart of the legal case now being reviewed is the validity and legality of a consent decree the NCAA forced the University to sign. Fink writes that Penn State's president, Rodney Erickson, said he felt backed into a corner by the NCAA and that the school had no choice but to agree to the consent decree. It was accept the sanctions as presented, no questions asked, or to face a four-year death penalty, meaning no Penn State football for four years, Fink wrote in describing Erickson's options.
Additionally, Fink writes that the school's board of trustees lacked the crisis management expertise to deal with such a crisis, and that after the board fired its then-president, its lack of seasoned leadership allowed a badly weakened board to agree to such overreaching sanctions without a whimper. Fink is president and CEO of Los Angeles-based Lexicon Communications Corp., (CrisisManagement.com), the nation's oldest crisis management firm.
Ironically, part of the problematic consent decree mandates that Penn State agrees never to sue the NCAA, or automatically face the so-called death penalty. Thus, the current case was initiated by State Sen. Jake Corman as lead plaintiff. However in an unusual move, the court ruled that Penn State must be added to the list of plaintiffs, thereby neatly sidestepping the key provision in the consent decree that precludes PSU from suing the collegiate sports authority.
University of Oklahoma faculty member Gerald Gurney, a former Division I sports administrator, did not mince words when assessing what lies ahead. By any measure, Penn State was at the time of the Sandusky scandal a model athletic program. I think when the court looks into the validity of the consent decree, it will be bothered by the duress President Erickson and Penn State were under from the threat of a four-year death penalty And I think it will be bothered by the complete circumvention of established NCAA enforcement rules, Gurney said in an interview with Pennlive.com.
One of the NCAA's sanctions ordered the school to pay a $60 million fine in the form of child-abuse prevention education programs nationwide. One component of the suit argues that since Penn State University is a public school, such a fine if it were legal would have to be spent in state, and that the NCAA has no authority to force the school to spend what are essentially state funds beyond its borders.
Moreover, Commonwealth Court judge Anne E. Covey said she intended to review the entire matter of the NCAA sanctions against the university to see if they are valid and legal. Writing for the majority in the 6-1 decision, she stated that there were many discrepancies between the NCAA's own constitution and the agreement it reached with Penn State. Moreover, she wrote that the sanctions unfairly penalized many innocent people who had nothing to do with Sandusky's crimes.
In a reference to one sanction the NCAA imposed which vacated 111 victories from legendary head coach Joe Paterno's list of career wins, Covey wrote, Student athletes, trainers, coaches, administrators, and support personnel who had excelled in their jobs through hard work, practice, commitment, teamwork, sportsmanship, excellence, and perseverance were told none of that mattered."
Fink also was sharply critical of this sanction, writing, Explain history; don't rewrite it.
Referring to another sanction that cost the university a number of football scholarships for five years, Covey wrote, High school athletes who had no involvement in the criminal acts [committed by Sandusky] were prevented from obtaining a free college education.
The ruling was a huge blow to the NCAA, which is so many ways acted as if it was above the law when it imposed unprecedented sanctions against Penn State according to Fink's analysis.
Fink argues in his book that the NCAA and its president, Mark Emmert, sensed blood in the water when it injected itself into what was a criminal matter, then being handled by the courts. "The NCAA was out of bounds in meting out these sanctions," according to Fink.
Fink also predicted that "this sharp rebuke by the court represents the first crack in the formidable NCAA dike, and that other colleges and universities and even states' attorneys general will begin to review and challenge wildly inconsistent NCAA sanctions."
Steven Fink can be reached at sfink(at)lexiconcorp(dot)com, and at 626-683-9333.