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A Discussion On "Due Process" and Redirecting Your Ire

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The following editorial does not necessarily represent the views of the staff of Black Shoe Diaries and/or SB Nation, and is being published as an opinion piece by Dan Vecellio.

I have a feeling that this story will not have a great reception here. Bear with me.

On Sunday night, the Penn State Board of Trustees met on a conference callto clear up any issues trustees still had concerning the consent decree signed by President Rodney Erickson to accept the sanctions handed down by the NCAA in the wake of the Freeh Report and the Jerry Sandusky child sex abuse scandal. After hearing the first-hand story from Erickson, who said that NCAA President Mark Emmert told him that the committee was "out for blood" and that any non-agreement or talk of what the NCAA was planning would lead to a four-year death penalty which caused him to make "the hardest decision in 40+ years of being in education" and signing the consent decree, the Board (except for Anthony Lubrano) gave Erickson their full support in his decision.

Once again, after the meeting, comment boards all across the Penn State news spectrum lit with with alumni once again calling for the removal of the entire Board of Trustees as well as the removal of Erickson as president. While I have no problem arguing that the punishment was much more than Penn State deserved, I do find the misguided ire towards the university's leaders at this stage to be misplaced.

As should be made apparent by now after Don Van Natta's ESPN articledetailing the negotiations between Penn State and the NCAA and Erickson's comments on Sunday, the NCAA acted like a tyrant in the dealings with the Penn State administration. The NCAA, as Emmert told Erickson, was out for blood and there was no way Penn State was getting out without some sort of severe punishment. President Erickson was strong-armed into making the sacrifice of losing scholarships and bowls for four years, rather than be without football for four years and kill not only the football program, but the economy and way of living of those who live in central Pennsylvania.

A popular argument against the quick decision is that Erickson, the Board of Trustees and the NCAA did not allow for due process to play out. What many don't understand is that the NCAA doesn't play by the same due process, 14th Amendment laws that a normal court of law does. Nothing illustrates this more than the NCAA vs. Jerry Tarkanian decision found by the Supreme Court in 1988. You can find the executive summary of the case here.

Although it must be assumed that UNLV, as an NCAA member and a participant in the promulgation of the Association's rules, had some minor impact on the NCAA's policy determinations, the source of the rules adopted by the NCAA is not Nevada, but the collective membership, the vast majority of which was located in other States. Moreover, UNLV's decision to adopt the NCAA's rules did not transform them into state rules, and the NCAA into a state actor, since UNLV retained plenary power to withdraw from the NCAA and to establish its own standards.

So what exactly does that entail? Since the NCAA is a voluntary organization and members can join and leave as they wish, they are also subject to the NCAA's rules which do not translate into a court's rules. As Gene Marsh, a former NCAA infractions investigator, told the Board of Trustees on Sunday, the NCAA can look at the facts presented to them (i.e. the Freeh Report), look at the other side and then decide who they believe at any point in a proceeding. They don't need to wait for all of the facts. If they feel they have enough information, they can decide to take whatever course of action they'd like because they are not bounded by most's definition of "due process".

Sure, Penn State could have appealed if they refused to sign the consent decree, hoped that they would be granted a stay so that football could continue while the courts heard the case, maybe bring an anti-trust lawyer into the fold (which still might and should happen, even if it isn't Penn State who brings up the case), a hope that the Supreme Court finds in Penn State's favor. But with all the uncertainty in a court decision, one that if precedent says anything, there was a chance of Penn State losing, was it really worth it in the end? Some might say yes, but many will also say no.

To put it plainly, the fact that NCAA doesn't have to follow regular due process criteria sucks. It absolutely does. But it's the world that we live in with the Supreme Court agreeing that the NCAA has rights to do whatever they want as a voluntary organization. If you don't like it, get out. It's a tough pill to swallow, but Erickson and the leaders of the Board probably made the best decision with the cards they were dealt. So, in this instance, I encourage you to cut them some slack. If you want to be angry, and I know we all are, then direct that anger where it makes more sense to go: at the NCAA and the iron fist they possess.

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