Saturday, November 12, 2011

Follow the Money

Here's the question. Is the Penn State scandal a sports law issue or simply a criminal matter? Consider this scenario. A young muscular graduate student in Biology wanders into a lab and sees an aging Assistant Professor raping a ten year old boy. Is there any doubt the perpetrator, if aware he had been seen, would immediately stop, the witness would intervene, the cops would be called, the Professor would be put away, and the University and its President would not be implicated in the least?

Why did that not occur here? Only one answer: the money generated by the plantation system known as the NCAA. For Penn State that is 100 million dollars, 75 million in football revenue and 25 million in assorted generic memorabilia like sweatshirts mostly attributed to the football program.

One telling fact that has not been given much attention. Look at the chain of command that failed miserably in this case. McQuery tells Paterno the coach. He tells Curley the Athletic Director. Who does he tell? Gary Schultz. His title? Vice President of Business and Finance. Among the many unanswered questions, who else knew? Typically the AD must report any potentially troubling incidents to the Conference Commissioner. Did Curley do that here? If not, why not?

UPDATE from Mike McCann: Below are some excellent comments responding to my Facebook post on Follow the Money:

Mark McKenna [Notre Dame Law Professor] 
 Is there any doubt the grad student would intervene? Absolutely there is. There has been way too much of the "this is because it was football." if anyone doesn't think a grad student dependent on a star faculty member for his future might have acted just like McQuery did, they are kidding themselves. And kidding oneself this way is dangerous because it allows all of us off the hook too easily by making this seem like a problem of some "other" culture.

Afi Johnson-Parris  [Attorney in Greensboro, North Carolina]
Is it too much to expect that he would have had even an ounce of courage to make a noise from the shadows, flicked the lights, called out "is anyone there?," something, anything to make it stop, anything but walking away. How do you just walk away? I agree, that has less to do with football than it does to do with courage. Funny, they're always saying that courage is what football is about.

Mark McKenna 
No, Afi, clearly it's not too much to ask. I wasn't in any way making an excuse for him. I was only pointing out that lots of people have made themselves feel better about this situation by pretending that this is just something about the culture of some institution rather than a sad, but universal, fact about human beings. They protect themselves and the institutions they believe in first. See also, the Catholic Church.

Michael McCann 
Not that this would have likely stopped what happened at Penn State, but I think a better model to college sports would be for there to be an independent branch of a school, sort of like an independent federal agency that's to some extent insulated from the executive branch, that regulates the athletic departments. It may moderate the "winning at all costs, everything else be damned" approach we see at too many schools. In terms of Mark and Afi's larger points, I agree that this story is about much more than why persons in a big time sports program respond so poorly to a fellow human in crisis. It also says, as Mark notes, that allegiance to institutions too often trumps allegiance to basic morality. Perhaps it also says that instead of these persons lacking humanity it's that humanity is less than what we expect or hope for.

Mark McKenna
I can't bring myself to "like" your last post, Mike, but the last sentence is right on.

Alan Milstein 
Mark, I just have to disagree. I do not think it is the norm for someone to not do anything when confronted by an old man raping a ten year old boy. Even if it is a superior, you would have to believe in an academic setting the grad student would believe the chairman of the department and everyone else would come down hard on the offender. Mainly because there is nothing to lose. That's the difference here. There was something to lose if they didn't cover it up. Millions of dollars. Incredibly, all they did was take away his locker room privileges, presumably so he could do his business elsewhere just not in the Penn State locker room.

Mark McKenna 
No, I wouldn't believe that people would act differently in another academic setting. People act selfishly whenever there is a lot for them to lose. There is a ton to lose when a graduate student reveals something about a supervisor they depend on (and grad students depend enormously on their advisors). There is a ton to lose when speaking up would force you to confront the failures of an institution you believe in. The statistics on abuse are staggering, and they couldn't be even remotely right if you were right that people generally speak up and stop things. They don't. I guarantee you that there has been undisclosed abuse in virtually any organization. This is not an apology - it's absolutely the wrong thing. But I think we delude ourselves by pretending it couldn't happen in our own back yard.

Jason Chung For me, the fact that people some people honestly say that they would have also walked away or merely alerted their superior when confronted with a similar situation is the greatest indictment of our culture.

Alan Milstein And your analogy to the Catholic Church doesn't help your point. The same forces are at work. But outside of such institutions like Penn State and the Catholic Church, where most of us reside, I have to believe most people would do the right thing and stop the brutalization. It's a ten year old boy, for God's sake. People by and large are good not bad, moral not immoral, caring not uncaring.

Mark McKenna I wish it were so, Alan. But I don't think it is. If you want to exclude all the institutions because the same forces are at work, then I think you have a long list to exclude. And that's my point.

Jason Chung
Mark, I understand your point - in today's society where everyone is looking to get ahead, there is sometimes tension between doing the right thing and doing what seems right for you personally. Sometimes, people do the latter instead of the former. Understood. However, I think that Alan's point is that the cult of big-money sports amplifies what we would consider "acceptable" in the realm of distasteful things one would tolerate. I'm not sure that I entirely agree with that assessment but I do acknowledge that sports, and particularly collegiate sports, has more than a fair whiff of an insular, old boys network feel to it where omerta and misguided "loyalty" is preferable to decency. I'd normally make an analogy or example trying to illustrate this point but, frankly, this entire issue is so beyond the pale, it makes me sick. This equalizer is this - At least, we, the fans, don't have to accept it. Stay vigilant, make noise, keep those responsible (and those who enabled) accountable.

Alan Milstein
This story is just beginning. The cover up has yet to be uncovered.