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NCAA won't rule out death penalty for PSU

| Tuesday, July 17, 2012, 9:36 a.m.
Former Penn State football coach Joe Paterno walks off the field after warmups before a game against Northwestern in Evanston, Ill.
President Mark Emmert and the NCAA have had to deal with a series of lawsuits that threaten to weaken the board's governing power. AP

NCAA president Mark Emmert said he won't rule out any form of punishment for Penn State in the wake of the child-abuse scandal involving former assistant football coach Jerry Sandusky.

“I've never seen anything as egregious as this in terms of overall conduct and behavior inside of a university,” Emmert said in an interview Monday night with PBS. “What the appropriate penalties are, if there are determinations of violations, we'll have to decide. I don't want to take anything off the table.”

In the end, the NCAA could lean on its constitution.

“I don't think the NCAA can walk away from this and find there is nothing wrong,” said Mike McCann, a leading sports legal authority and the director of the Sports Law Institute at Vermont.

McCann said Articles 2.4 and 10.1 of the NCAA constitution could be key. Article 2.4 demands “student-athletes, coaches and all others associated with these athletics programs and events should adhere to such fundamental values as respect, fairness, civility, honesty and responsibility.”

The Freeh report, released last week, found that top Penn State officials, including former coach Joe Paterno, “failed to protect against a child sexual predator harming children for over a decade.”

The NCAA constitution doesn't mention possible penalties for violations of those articles, and a former chairman of the Infractions Committee said he never has seen them referenced in prior cases of unethical conduct.

“We all want to do something to prevent this type of conduct,” said David Swank, who served on the committee from 1991-99 and is a professor of law at Oklahoma. “But it is another (civil and criminal) court, rather than the NCAA's court, in this instance.”

That doesn't necessarily preclude the Penn State case from taking a different course.

“Maybe this is a new case,” Swank said. “I suppose it is a possibility.”

That could include the death penalty, which bans a school from competing in a sport for at least one season. The death penalty has been implemented only once, when the NCAA shut down the SMU football program in 1987 and '88.

But Swank said it applies only when major violations occur more than once in a five-year period.

In any case, he predicts the NCAA could take between six and 18 months to rule.

“It is not a simple process,” he said.

McCann said some form of punishment should be considered by the NCAA.

“But the death penalty, that's a harder call,” he said.

“My instinct is yes, but it has been reserved for repeat offenses, which is not the case here.

“It would take a new application of the rule. But I definitely think it should be on the table.”

McCann suggests that Penn State should self-impose the death penalty.

“The best outcome would be for Penn State to voluntarily offer to take a year off from football, because if they won't, it could be more severe than that,” he said. “At the end of the day, the NCAA is not a predictable entity.”

McCann predicts fallout from the death penalty could cost Penn State its head coach and players.

“(Coach) Bill O'Brien will try to get out of his contract,” McCann said, “and players should be allowed to transfer (without sitting out a season). The NCAA would be wise to permit that.”

Jerry DiPaola is a staff writer for Trib Total Media. He can be reached at jdipaola@tribweb.com or 412-320-7997.

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