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Early in the scandal, informed observers dismissed the possibility that the NCAA could or would invoke an LOIC judgment against Penn State. But even a novice’s read of LOIC language—and count me as a novice when it comes to the NCAA’s byzantine compliance process—suggests that what Penn State’s football program allowed to happen meets the very definition of a lack of institutional control.
Under the heading, “Acts That Are Likely To Demonstrate A Lack of Institutional Control,” we find the following examples:
• “The institution fails to make clear, by its words and its actions, that those personnel who willfully violate NCAA rules, or who are grossly negligent in applying those rules, will be disciplined and made subject to discharge.” Some will argue that the NCAA has no part in these matters because NCAA rules were not technically broken. This is nonsense. Implicit in being a member in good standing of the NCAA must be the observance of state and federal laws. To flout the laws of a state and/or of the United States is to violate the very spirit of the NCAA’s standards. What Paterno and the Penn State hierarchy did and didn’t do is far worse than any player-payment scandals, grade-fudging or out-of-season contact with recruits. “It is the duty of adults to protect children and to immediately report any suspected child sexual abuse to law enforcement authorities,” as Freeh explained. Paterno and his co-conspirators did not even meet this lowest, most basic level of compliance with the law. By word and action, Paterno and the Penn State hierarchy obstructed justice.
• “A head coach fails to create and maintain an atmosphere for compliance within the program the coach supervises.” Football is all that mattered at Paterno’s Penn State. “Football runs this university,” said the janitor who saw one of Sandusky’s assaults, trying to explain why he couldn’t report the crime. As the Freeh report put it, there was “a culture of reverence for the football program…ingrained at all levels of the campus”—not a culture of compliance with the law.
• “A person with compliance responsibilities fails to establish a proper system for compliance or fails to monitor the operations of a compliance system.” The head football coach and AD, in effect, created a system that encouraged non-compliance with the laws of the state.
• “A director of athletics or any other individual with compliance responsibilities fails to investigate or direct an investigation of a possible significant violation of NCAA rules.” Again, the guilty parties took no steps to correct the Sandusky problem when it became apparent that the system wasn’t working. “Although concern to treat the child abuser humanely was expressly stated,” Freeh concluded, “no such sentiments were ever expressed…for Sandusky’s victims.”
Perhaps knowing what was to come, Paterno contended that “This is not a football scandal and should not be treated as one.” Nothing could be further from the truth, of course: It was a football coach who committed these crimes; he committed many of these crimes at football facilities and at football-related events; and it was a football coach who averted his gaze from these crimes.
After the scandal broke, a portrait of Sandusky on Penn State’s campus was quietly painted over—and rightly so. Given Judge Freeh’s findings, it may be time to remove the bronze statue of Paterno as well.
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