Archive for July, 2012

The Penn State Penalties

The_Penn_State_Penalties  <–  PDF version

Former Assistant Coach of the Penn State football team, Gerald A. “Jerry” Sandusky has been convicted on 45 charges of child abuse against 10 victims between 1998 and 2010, some of which had occurred on Penn State property.  As a result of these child molestation charges, Graham B. Spanier, President of the University during this period, was removed from office, and charges are pending against two other university officials for their role in the cover-up of Sandusky’s crimes.

When Sandusky went to trial, NCAA President Mark Emmert commissioned a study, undertaken by Freeh, Sporkin, and Sullivan, SSP, to determine how and why these crimes could go on so long.  The resulting report was released on 12 Jul 2012; it revealed a pattern of cover-up on the part of the head coach, athletic department, and university officials. It faulted the “leadership and board of Penn State” for allowing a predator like Sandusky to operate within its program, even though his crimes were known or suspected by several members of the athletic department and university staff.  Specifically, the Freeh et. al. report concluded, among other things, that: a) University President Graham B. Spanier, Senior Vice President-Finance and Business Gary C. Shultz, Athletic Director Timothy M. Curley, and Head Coach Joseph V. Paterno failed to protect children against a sexual predator on the football coaching staff; b) the Board of Trustees did not perform required oversight duties and ignored red flags in Sandusky’s conduct thus allowing Sandusky to entrap more victims; and c) Spanier failed to notify the Board of Trustees about specific 1998 and 2001 allegations against Sandusky, including one that was witnessed by a graduate assistant.  The report also concluded that one of the primary underlying motivations for the cover-up was to avoid bad publicity for the very popular football program.

On 23 Jul 2012 the NCAA announced penalties against Penn State for its failure to adequately supervise and report the misconduct of Sandusky.  The NCAA’s sanctions against Penn State are based on the university’s failure to adhere to certain standards as specified by the NCAA Constitution and Bylaws; specifically, that Penn State: a) failed to uphold standards of institutional integrity; b) failed to maintain adequate standards of conduct; and c) failed to maintain moral standards as an example to the students.   Current Penn State President Rodney Erickson quickly agreed to the sanctions even though the NCAA did not follow its usual due process.  They are considered to be the most severe punishment ever handed out by the NCAA to a football program in its 102 year history.

The penalties imposed by the NCAA included:

1. The loss of 10 football scholarships for the next four years (from 25 to 15);

2. The football program is banned from post-season play for four years;

3. The football team roster is to be reduced from 85 to 65 for four years, beginning with the 2014 season;

4.Penn State must vacate all its football victories from 1998 to 2011;

5. The university is to be placed on probation for 5 years;

6. Penn State will pay a $60 million fine over five years which will fund an endowment to prevent future child abuse and victim assistance (and cannot be used to fund any Penn State programs); and

7. Penn State will pay $13 million over four years into a fund for charitable organizations that will in turn fund programs to detect, prevent, and treat child abuse.

The $60 million figure is approximately one year’s average revenue from the football program; the $13 million figure is the amount the school would have received as its share of post-season revenues over four years.

The experts on college sports have concluded that the first three penalties cited above will reduce the quality of the football team for a decade or more.  These three penalties are of questionable merit.  Neither the football players nor the fans committed any crimes.  It doesn’t make any sense to marginalize the team and its fans as a penalty for the crimes and failures of the university management.  Is the NCAA now trying to suppress the exuberance of college football fans?  Maybe they should inform Alabama and Oklahoma.  The NCAA apparently requires the players and fans now to share the blame for what Sandusky did as some sort of cathartic collective guilt.  Privatize the crimes, socialize the penalties; same old weak-sister group-blame attitude.  If the NCAA sees fit to exact some sort of non-financial punishment for this scandal, they should direct it at those who are responsible.

The fourth penalty, vacating wins from 1998 to 2011, will reduce Coach Paterno’s overall win record from 409 to 298, thus lowering his rank of winning football coaches from number one to number seven.  The NCAA now proceeds to rewrite history.  Will the players from those years have to give back their trophies and other awards?  Does anyone believe that changing a coach’s win/loss record is in any way a suitable retribution for covering up child molestation?  This penalty is simply divorcement from reality; the attempt to equate two things which cannot even be remotely related.  It is a weak and pathetic way to remind the public of Paterno’s role in the scandal. Here is a recommendation.  Let Mr. Paterno keep his win/loss record.  In the long run, who cares anyway?  The NCAA should add an asterisk next to Paterno’s name in all the NCAA record books, and any placwe where he is honored, which would refer the reader to a footnote, which would read:

“Coach Paterno, aided and abetted by Graham B. Spanier, Gary C. Shultz, and Timothy M. Curley, knowingly and willfully covered up numerous crimes of child molestation committed by Assistant Coach Gerald A. Sandusky over a period of 13 years.  The football franchise was protected.  These four leaders represent the finest in football over substance.”

The other three helped Paterno cover up for Sandusky to protect the football program?  Excellent — now they’re all in the record books.  Those who were responsible now take the blame instead of the fans and players.

No reason to stop there.  The same inscription should be carved into the stone on the outside of Penn State’s stadium, large enough to be read from 100 yards away.  The famous statue of Coach Paterno, the one where he is seen striding onto the field, pointing his finger into the air (“number one”) should be returned.  It should be placed nearby such that the line of sight from Paterno’s finger would point to the inscription above, so that everyone will be reminded where the four gentlemen’s priorities lay when it mattered most.

As for the financial penalties, it is no wonder Penn Sate was willing to accept them without objection.  It gets the issue with the NCAA settled (presumably Penn State will be required to pay compensation to the victims through the normal court system).  More importantly, the penalties amount to a little more than one year’s revenue although the irresponsibility of the principals lasted 13 years.  If the NCAA is going to impose a financial penalty, it makes more sense to link it to the duration of the failure.  A 13-year loss of football revenue would not be too much of a burden especially given the size of Penn State’s endowment.  This way, neither the players nor the fans suffer, only the institution that failed.

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The Supreme Court Ruling on “Obamacare”

TheSupremeCourtRulingOnObamaCare   <=== PDF version

On 28 Jun 2012, the U. S. Supreme Court issued its ruling regarding the constitutionality of the individual mandate under The Patient Protection and Affordable Care Act (PPACA) of 2010, a.k.a. “Obamacare”. The court’s majority (5-4) opinion, led by Chief Justice John Roberts, found that the individual mandate, requiring every citizen to prove they have health insurance, is constitutional because the penalty for failure to do so is regarded as a tax.  Therefore, they said, the mandate conforms to the Constitution because of Congress’ unlimited power to tax.  It rejected the authority to impose the mandate under the Interstate Commerce Clause.

I had published a paper [1] three weeks prior to this ruling in which I speculated that the Court may in fact uphold Obamacare on the grounds that it would be regarded as a non-voluntary tax.  I had claimed then that the Court might use the mandatory Social Security tax as a precedent.  Although the Obamacare ruling did not in fact justify it in that manner, I am content with being more than half-right on the speculation that a tax argument would be used to uphold it.

Some critics claim the Justice Roberts “re-wrote” the law to give it the illusion of conforming to the Constitution, since the President and Congress all claimed that the individual mandate penalty was not a tax.  I do not see what they are alarmed about.  If Roberts “re-wrote” the law, it means that he must have “read” it, which is more than the members of Congress did before they voted for it.  No member of Congress who voted for it should be offended by having the Court explain it to them, so long as it was upheld.  The mandate penalty being cast as a tax should also not offend any member of Congress.  Remember, all the members of Congress, their families, their staff, and their families are all exempt from Obamacare.  At least they had enough common sense to protect themselves from this law, but what about you?

The net result of this ruling is that the Court found a way to justify an expansion of the arbitrary powers claimed by the federal government.  If the individual mandate is a permitted tax, then the funding is secure; the funding is the means of establishing and consolidating the new power. Without the “tax” or “penalty”, or more accurately, the coercive economic method, the new power over the entire health care system would necessarily become inoperative.

The Republicans are now claiming that this ruling will energize the people to elect Governor Mitt Romney to the Presidency on the grounds that he has promised to “repeal” it.  He is either using the wrong word or Mr. Romney hasn’t read the Constitution either, since a President does not have the power to “repeal” Congressional legislation.  The most he could do in this case is issue an Executive Order exempting all the states.  If that is what he means, he should say so.  But it will be a difficult argument for Romney, since he is the godfather of the individual mandate established while he was Governor of Massachusetts (“he was for it before he was against it”, as Senator John Kerry ofMassachusettsonce said).

Even if the Republicans take control of the Senate, retain control of the House, and Mr. Romney becomes President, I do not think Obamacare will be repealed.  There are a lot of tactical reasons involving the proportional allocation of “federal money” to the states, but I think the main reason it will never be repealed is because the Republicans like the expansion of government power just as much as the Democrats do.  Maybe they will prove me wrong, but it is better to prepare for the full onslaught of Obamacare rather than count on politicians to keep their promises.

[1]        Edward D. Duvall, “Why The Supreme Court May Validate Obamacare”, 4 Jun 2012, http://edduvall.com

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