What’s wrong with the NCAA’s epic sanctions against Penn State in the wake of the Jerry Sandusky pederasty scandal? I’ve been thinking about this for a couple of days, and I’ve concluded that the answer is “Just about everything.”

Most of the focus of the media and pundits have been on the “punishing the innocent” complaint. As a general rule, I detest aversion to punishing the innocent as a justification for inadequately punishing the guilty or otherwise avoiding necessary steps to address problems; it’s a rationalization for encouraging unethical, exploitive, illegal and even deadly conduct. This toxic rationale has caused incalculable harm across the globe; it currently abets illegal immigration, out-of-wedlock childbearing, and the international crimes of dictators. The United States, within our lifetimes, may drive itself into financial collapse by adopting the theory that it is unfair and unethical to “punish” the expectant beneficiaries of entitlements that the nation can no longer afford by reducing  benefits, or by taxing wealthy citizens who opposed the profligate spending in the first place. As Ethics Bob writes in his post about the Penn State sanctions,

“Accountability for wrongdoing often brings down the innocent along with the guilty. Think about the workers at Enron, Arthur Anderson, or MCI-Worldcom, who lost their jobs when their bosses’ malfeasance destroyed their companies… there is no way of punishing the guilty without harming people close to, or dependent on them. Even a mass murderer–when he is sent away his mother suffers along with him. When Al Qaeda militants are killed, their family members often die with them.”

Bob isn’t making an invalid “everybody does it,” argument, but a practical, “that’s the way the world works” argument.  If we believe in accountability, we have to accept the fact that the innocent will often be collateral damage. It isn’t fair, but this is utilitarianism at its most persuasive. Allowing wrongdoers to  prosper is ethically worse.

If the NCAA sanctions against Penn State were otherwise appropriate, I wouldn’t have a problem with the collateral damage. They aren’t appropriate, however. The sanctions are unethical.

1. It is mob justice. Sportswriters and pundits were clamoring for action to be taken against Penn State beyond what the law had to offer, because they were convinced that a few criminal verdicts and a dozen or more multi-million dollar civil suits, national embarrassment, and devastation to the school’s image and reputation won’t be enough. They are right: it isn’t enough, just as no punishment in the offing for the Aurora movie theater killer is “enough” to compensate his victims and their families. But the law can’t make up new laws after the fact to try to address that problem, which is another “that’s the way the world works” fact of life. Unethical conduct that doesn’t break laws has to be condemned and discouraged by society and the culture, and maybe even needs to be made illegal, but it is unjust and unfair to make it illegal after the conduct has taken place. If we allow that, then none of us are safe, for we can never know by what legal standards we may be judged and punished.

There is a dangerous level of support in our culture for such ad hoc punishment these days, and it is cause for a serious ethics alarm. We see it in Occupy Wall Street’s call for banking and investment managers to be jailed regardless of whether they actually broke any laws. We see it in the rush to prosecute and punish  George Zimmerman regardless of whether he has a legitimate self-defense claim. Here is the key fact to consider in the Penn State case: Penn State has broken no NCAA rules whatsoever. Yet the NCAA

• Fined the school $60 million,
• Imposed a four-year postseason ban on Penn State football,
• Significantly reduced the number of scholarship players the team can field over the next four years,
• Placed the program on probation for five years and enabled any current or incoming player to transfer and play immediately without restriction.

Why? Because lots of people said they should, and because they could get away with it.  That’s not a sufficient reason to violate the principle that punishment should be based on rules and laws that exist before they are violated. And allowing mob justice to prevail is always a dangerous and irresponsible precedent to set.

2. It is an abuse of power. My analogy? A kid does something horrible at home that the law can’t punish and the parents won’t, so the high school principal expels him, impounds his car, and punches him in the face.

I have written here that the Sandusky horror was, contrary to Joe Paterno’s pleas, very much related to football, but it had absolutely nothing to do with the playing of the games, the recruitment of players, or anything else the NCAA exists to oversee. Again, that everyone wants to watch Penn State get punched in the face, that the school “deserves” to be savaged, and that the NCAA sanctions will give the illusion of justice are all irrelevant. This isn’t the NCAA’s job, their jurisdiction, or their decision to make. Again, they can get away with it, because Penn State is in no position to challenge a wrongful set of sanctions for the school’s abetting a child molester without making itslef look even worse than it already does. So the NCAA can abuse its power because its victim can’t fight back. That’s the definition of bullying, my friends.

3. The sanctions are hypocritical, and cynically self-serving.  NCAA President Mark Emmert said, regarding the sanctions, that:

“…what we can do is impose sanctions that both reflect the magnitude of these terrible acts and that also ensure that Penn State will rebuild an athletic culture that went horribly awry. Our goal is not to just be punitive, but to make sure the university establishes an athletic culture and daily mind-set in which football will never again be placed ahead of educating, nurturing and protecting young people.”, was what took place at Penn State during the years in which Sandusky was found to be abusing young boys, and that was exactly the sort of environment he hopes these sanctions will deter.”

Coming from the NCAA, this is infuriating, vomit-inducing or laughable, depending on your gag reflex. While Penn State is an extreme case, the culture on college campuses that elevates sports above academics and sports-generated income above principles and ethics has been nurtured and is still nurtured by the NCAA.  I don’t agree with Taylor Branch’s conclusion in his piece in the Atlantic, but the rotten culture in college sports encouraged by the NCAA comes through loud and clear. Why isn’t the NCAA fining itself?  The answer is obvious: lowering the boom on Penn Sate is a classic cognitive dissonance ploy. By aligning itself against a publicly-reviled villain, the NCAA looks virtuous by comparison. Maybe this will take some of the heat off, the NCAA reasons. Meanwhile, some NCAA members in good standing pay their football or basketball coaches more than they do any professor, dean or their school’s president. But never mind that: the sanctions against Penn State ensure that “football will never again be placed ahead of educating, nurturing and protecting young people.”

Sure they do.

[ You can read blogger Rick Jones’ different route to the same conclusion here.]

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Spark and Source: Ethics Bob

Facts: Washington Post

Source: The Atlantic

Graphic: Think Progress

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.