PSU case could redefine 'death penalty'

Posted: July 19, 2012

WHEN NCAA PRESIDENT Mark Emmert said he didn't want to take anything off the table when examining possibility penalties against Penn State in an interview on PBS Monday night, the Penn State community was forced to fearfully wonder what life after the "death penalty" could bring. For the rest of college athletics, the result could be worse than the sanctions themselves, which have been imposed only once before in football — this could open a Pandora's box.

Forget about the sanctions Southern Methodist University received in 1987 for giving impermissible benefits to football players for more than a decade. Forget the canceled season, the lost scholarships, the bowl ineligibility, restricted coaching staff and loss of off-campus recruiting privileges.

Sanctions against Penn State would redefine the phrase "NCAA investigation." For the first time, the NCAA Committee on Infractions will deal not with violations of recruiting rules or improper benefits, but with a university's role in criminal activity, specifically former defensive coordinator Jerry Sandusky's molestation of boys, both on and off campus.

It is a case that, according to Mark Jones, who worked for the NCAA for 18 years and served as the NCAA's managing director of enforcement, could change college athletics' governing body as we know it.

"I believe, from the outside looking in, it is a bit of a slippery slope for the NCAA," said Jones, a lawyer who handles compliance matters. "Where do you draw the line now in terms of when you involve your enforcement staff in a matter that seems to have more criminal ramifications than NCAA competitive equity issues? When do you step in and when do you not step in, and do you always have to step in, now that you've potentially stepped in here?"

Around the college football world, teams are taking notice, trying to learn the same lessons the sanctions against SMU sought to teach 25 years ago. Penn State was even a topic of discussion at the Southeastern Conference's annual media day in Hoover, Ala., although commissioner Mike Slive did not refer to Penn State by name.

"Last week's headlines remind us that we must be ever vigilant on all issues of integrity and that our primary mission is to educate and protect young people," Slive said in his opening remarks. "We must maintain an honest and open dialogue across all levels of university administration. "There must be an effective system of checks and balances within the administrative structure to protect all who come in contact with it, especially those who cannot protect themselves. No one program, no one person, no matter how popular, no matter how successful, can be allowed to derail the soul of an institution."

To justify the "death penalty," the NCAA will need to ascertain that Penn State exhibited a "lack of institutional control," a phrase Jones said will be especially difficult to define, given the nature of this case. While Sandusky was convicted in court, two others, former athletic director Tim Curley and retired vice president Gary Schultz, await trial on perjury charges. Meanwhile, former football coach Joe Paterno and former president Graham Spanier were implicated in the Freeh report in covering up Sandusky's actions.

It would be hard to imagine Penn State without football, much like it was at SMU, which had been a national powerhouse at the time sanctions were imposed. After the 1987 and ‘88 seasons were canceled, football returned, but the Mustangs did not make a bowl game until 2009.

"The impact would be monumental for that university," said Paul Rogers, an SMU law school dean in the 1980s and '90s and now the school's faculty athletic representative. "In many ways, Penn State football is the face of the university. To just have that wiped away for even a short period of time would be pretty significant, not only from a revenue perspective but from student recruitment and alumni giving and revenue generated by the program and national visibility in a positive light.

"The fact that I'm being asked about the death penalty at SMU 25 years after the scandal suggests that it's not something that goes away from the public consciousness."

Ultimately, Jones believes the death penalty will not be in store for Penn State, citing not only the complexity of the issue itself, but the legal ramifications the NCAA may be forced to work around in its own investigation. If misconduct that's relevant to the NCAA issue occurred in 2001 or 2002, "the NCAA has a statute of limitations provision that limits you from going back 4 years from the date of a potential violation," Jones said.

"I think using case precedent is a potential issue here, too," he said. "If, in fact, the NCAA is perhaps not going to be bound by precedent because they think this is a unique circumstance, it's really difficult for me to speculate how they're going to proceed."

Rogers also said he did not expect the death penalty.

"I think it's still a little bit unclear just to how the incident would apply to Penn State in terms of what rules or policies that Penn State actually violated," he said. "It wouldn't be a standard kind of NCAA investigation?...?This is a very different kind of problem."

After one of the darkest years in the history of college athletics, who could have thought the future might just be more complicated?

Daily News wire services contributed to this report.

Contact Daniel Carp at

AS THE name suggests, the "death penalty" is the most severe punishment the NCAA can levy on a school’s athletic program. The sanctioned team is not allowed to compete for one or two seasons.

Initially put in place in the early 1980s, the rule punishes schools for a second violation in the same sport or another sport within 5 years of being placed on probation. The second sport to have violations would be shut down.

However, the NCAA does have the power to shut down a school from playing a particular sport if the violations are particularly egregious. 

The only time the "death penalty" has been used in football was at SMU. The NCAA determined that SMU had paid players from a slush fund provided by a booster, and athletic department and university officials were aware of it. This followed a series of other violations that led to the program being placed on probation.

The penalties included the cancellation of the 1987 season and the cancellation of all home games in 1988 (the school decided to cancel the entire season), along with scholarship limits, certain boosters being baned, and bans on television and bowl appearances.

The impact was severe. After returning to football, SMU did not return to a bowl game until 2009. "It’s something that never fully goes away; it becomes part of your institutional history," said Paul Rogers, a former dean of SMU’s law school who is now the university’s faculty athletic representative. "At SMU we have a statue of Doak Walker outside of our stadium. He won the Heisman trophy in 1948. We have plenty of football heroes, but we’ve also gotten the death penalty and we’re the only school to ever have received it. Both the good and the bad don’t go away... 25 years later, student-athletes that are here now weren’t even born then, but it still impacts the institution, in a positive way being that we dot our I’s and cross our T’s [in terms of NCAA compliance], but also in a negative way that people don’t forget it." 

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