In July 2012, in the wake of the horrific Jerry Sandusky child sexual abuse scandal and subsequent cover-up, the NCAA announced sweeping sanctions against Penn State University. Some targeted the university as a whole, including a $60 million fine and five years of oversight by former Sen. George Mitchell. The most visible were specifically directed at the football team: reducing scholarships, banning postseason play through the 2015–16 season, vacating past wins, and allowing players to transfer without penalty.
Last summer, recognizing the progress cited in Mitchell’s first yearly report, the NCAA gave back some scholarships: Penn State will have 75 this year (up from the compulsory reduction to 65), 80 next year, and the full allowable number of 85 scholarship players in 2016. While NCAA President Mark Emmert has said there will be no further reduction of the sanctions, the Sporting News recently reported that sources within the NCAA believe that Penn State would have a “strong case” for lifting the sanctions if it continues to earn positive progress reports. Let’s hope that comes to pass: It’s time to end the football-specific sanctions—to allow Penn State to have a full complement of scholarships and to play in a bowl game as soon as this year.
When announcing the sanctions back in 2012, the NCAA pointed to former FBI Director Louis Freeh’s finding that the “culture of reverence for the football program” contributed to university officials’ failures to report Sandusky’s sexual abuse. The NCAA Consent Decree, which formalized the sanctions, noted that, while “sexual abuse of children ... ordinarily would not be actionable by the NCAA … it was the fear of or deference to the omnipotent football program that enabled” the longtime assistant coach to get away with his crimes for so many years.
At the time, many commentators believed the bowl ban and scholarship reduction—and the hit to the university’s and the football team’s prestige—would force the Penn State community to re-evaluate football’s on-campus prominence. Yahoo’s Dan Wetzel even suggested that the sanctions were worse for Penn State than the “death penalty”—the rarely invoked NCAA punishment by which a team must cease to exist entirely for a period of time.
In reality, the Nittany Lions football program hasn’t suffered much at all. In the first two years after the sanctions were announced, the football team has gone 8–4 and 7–5—not sterling records, but certainly respectable. The sanctions aren’t discouraging top high school players from coming to Penn State. And the head coaching gig remains prestigious enough that Bill O’Brien left State College to graduate to the NFL and was replaced by James Franklin, who reportedly ignored interest from the NFL and other sanction-free college programs to take the job. Attendance is down by Penn State standards but still the fifth-highest in the country, and a reported 72,000 fans came out to watch a practice game this spring. Alumni donations have stayed steady; in 2013, more individual alumni gave to the university than ever before, and this spring the alumni association received its largest ever single donation. So it is hard to say that the NCAA achieved its goal of decreasing the influence of football at Penn State, and keeping the sanctions in place will clearly do nothing to change that.
What, then, is the best argument for retaining the sanctions? Tufts University philosophy professor Erin Kelly, who has written extensively on the theory of punishment, told me there are two ways that we could look at the NCAA’s Penn State penalty. The retributive theory says that “offenders of some unlawful acts should suffer because they were wrong.” The second theory looks at the consequences of punishment, especially whether it meets society’s aim of deterring future bad acts. Here, Kelly noted that the “best rationale for the sanctions is to bring about change.”
How do those rationales fit here? The criminal justice system and the civil courts either have already provided or are in the process of providing retribution against individual bad actors and the university at large. By the time the NCAA announced its sanctions, Jerry Sandusky had already been convicted of 45 counts of sexual abuse and was facing up to 65 years in prison. He was later sentenced to 30 to 60 years in prison; now that the 70-year-old Sandusky’s final appeal was denied, he will likely remain there for the rest of his life.
Penn State Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz—who allegedly knew of Sandusky’s crimes—had resigned and were facing prosecution at the time the NCAA dropped the hammer. They are now awaiting trial on charges of perjury, obstruction of justice, failure to report abuse, child endangerment, and conspiracy. Despite loud public support, head coach Joe Paterno was fired on Nov. 9, 2011, four days after Sandusky’s arrest and just hours after Paterno said he would retire at the end of the season. The Board of Trustees forced university President Graham Spanier out on the same day Paterno was fired. Paterno died of cancer in January 2012, six months before the sanctions were issued, and a statue of the coach outside the football stadium was taken down. Four months after the sanctions were announced, Spanier was charged with covering up Sandusky’s abuse, and today he is awaiting trial with Curley and Schultz. The university is facing numerous civil lawsuits, so far paying out nearly $60 million in settlements to victims of Sandusky’s abuse, while spending $45 million on legal, consulting, and PR fees. All of this would have happened without the NCAA’s involvement.