Thoughts on Penn State

I recommend other commentary on the Freeh Report and Deadpsin is gathering lots of tidbits, but with a clear attitude and anti-PSU perspective. I will add only two things:

1) There was nothing surprising or unexpected in here. We knew or at least strongly suspected pretty much everything in there, whether because it had leaked or because it simply makes sense. Nothing happens within a major college football program without the head coach knowing, so the idea that Paterno knew as little as he suggested has always rang false. Ditto for the university president, who must be on board to allow the insularity to develop.

2) Any program that insists it is "different" (as Penn State did for years) is fooling itself and, eventually, will be exposed. "A culture of reverence for the football program that is ingrained at all levels of the campus community." "A football program that did not fully participate in, or opted out, of some University programs." A "closed community," an "'island, where staff members lived by their own rules.'" Those words could be written about any big-time sports program at any school at which misconduct occurs. This case is different only in degree, in the extraordinary and heinous nature of the particular criminal misconduct. But the circumstances that allowed it to happen prevail (perhaps necessarily) for any big-time sports program.

Legal Analysis of The Freeh Report on Penn State and Sandusky

I have an SI.com column on the Freeh Report, released a few hours ago on Penn State and Jerry Sandusky. I discuss key findings from the report, limitations of the report, how Joe Paterno's family may try to counter the allegations, and legal and NCAA implications for Penn State. Hope you have a chance to read it.

Should the NCAA punish Penn State?

Attorneys Alan Milstein and Don Jackson discuss this topic with Mark Dent of the Pittsburgh Post-Gazette. Here's an excerpt:

...Emmert acknowledged the NCAA's ability to selectively interpret the articles regarding lack of institutional control and the bylaws regarding unethical conduct. Both "lack of institutional control" and "unethical conduct" are subjective concepts contingent on violations of other actions disallowed by the NCAA.

For unethical conduct, bylaw 10.1 in the NCAA handbook, Emmert wrote, "While admittedly, the actions alleged to have occurred in this instance are not specifically listed in the bylaw, it is clear that deceitful and dishonest behavior can be found to be unethical conduct."

Such an open interpretation could encompass the behavior of Sandusky and the Penn State administrators, said Alan Milstein, a lawyer with Sherman-Silverstein in Philadelphia. NCAA investigations don't follow due process.

"They are both prosecutor and judge and jury," Milstein said. "They make a determination and they mete out any punishment they want from fine to suspension to death penalty. They could do whatever they wanted to do."

Milstein believes the NCAA can and should punish Penn State University because he considers Sandusky's actions and the alleged cover-up directly related to the prestige and profitability of Penn State football. Jackson refutes that possibility because -- no matter the involvement of athletic department employees -- an NCAA punishment is possible only if an NCAA violation occurs.

He notes that the NCAA could veer away from the grave criminal issues of the Sandusky situation and find instances where Penn State committed unrelated violations. Under its current rules, the NCAA has a better case for investigating and punishing Penn State regarding Sandusky's transportation of children to football games and athletic facilities than the actual crimes, Jackson suggested.

The children could be considered "prospective student-athletes." A prospective student-athlete is defined by the NCAA as any student who has started ninth-grade classes, or any student who has not started classes for the ninth grade who has received any financial assistance or other benefits that the institution does not provide to all prospective students.

Bylaw 13.5.1 states that an institution cannot provide transportation to a prospective student-athlete to a practice or competition site. But Bylaw 13.1.2.2 likely would grant an exception to this transportation if it is deemed Sandusky had established a friendly relationship with the children through The Second Mile.

But the possibility illustrates the way the NCAA is equipped to work. Any punishment of unethical conduct or lack of institutional control would have to stem from neglecting or refusing to report similar violations.

Jackson brought up the 2005 Baylor case as a parallel. Murder was not mentioned once in the NCAA report. The athletic department was deemed to lack control because the employees did not report failed drug tests, sketchy tuition payments and other clear-cut NCAA violations, not because a player its employees had recruited and were responsible with monitoring murdered a teammate. "Tell me how NCAA legislation has changed since then," Jackson said. "Do I think it should change? Yes."

To read the rest, click here.

Armstrong tries again

It only took a day from getting slapped down by a federal district judge to refile his lawsuit against USADA and its CEO, again with claims for tortious interference, common law due process, and Fifth Amendment Due Process. The new pleading is 25 pages and 82 numbered paragraphs--truly short and plain. This suggests that the original complaint was 55 pages and about 180 paragraphs of snark and vitriol.

I want to break down the Fifth Amendment claim because I do not believe it can succeed. I have been writing about state (and federal) action for the past few days, so this story links well to my current work. Here goes.

First, to the extent Armstrong is seeking money damages for the Fifth Amendment violations, this is a Bivens action. But the Supreme Court has in the past decade made clear that neither a private entity nor its employee can be subject to Bivens liability, at least where state remedies are available (as there are here--Armstrong is pursuing them in the same case). Now both Malesko and Minneci were Eighth Amendment claims involving privatized prisons, so maybe this is a different circumstance. But there is a good argument that Bivens now runs only against government officers and joint private-federal participation does not create constitutional liability against private persons as it does under § 1983.

Second, even if a Bivens action is possible, I doubt it works here. The complaint alleges four sets of facts aimed at showing joint private-federal participation; most of them do not work. I cannot make this case fit into any of the recognized tests for action under color of law.

    1) Congress was "instrumental" in creating USADA and USADA receives 2/3 of its funding from Congress. Nope. Receipt of government funds, even in large amounts, does not make a private entity a government actor. Think of how much money private hospitals get from Medicare and Medicaid.

    2) "Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done.

    3) USADA conducted its investigation of Armstrong in conjunction with several federal agencies, including DOJ, the FBI, and the FDA. The USADA's case is based on the evidence jointly gathered. This one is closer, because this type of joint operation can be sufficient to make a private actor public. The problem for Armstrong is that the connection must be between the government and the challenged conduct. Armstrong does not challenge the joint investigation itself; he is challenging USADA instituting internal procedures against him for doping. But the federal government plays no role in those procedures or in the establishment of the rules that USADA follows. That the adjuducation relies on government-gathered evidence is not sufficient.

    4) USADA has been delegated authority to regulate and monitor drug-testing, exercising an express power grant of Congress and carrying out federal treaty obligations. Again, closer, but I am not convinced. Mere delegation of power or authorization to act in some area, even to the point of having exclusive power, is not sufficient. Nor is the simple fact that the private entity is doing something the has public import. That USADA is ensuring that the U.S. complies with treaty obligation point is a nice fact, but I do not believe it is enough.

I leave discussion of the tort, contract, and arbitrability issues to smarter hands. In the meantime, is there something else I am missing?

Lance Armstrong gets Twiqbaled

Let me add my proceduralist take to Mike's comments on Lance Armstrong's lawsuit and its sua sponte dismissal.

The lawsuit claimed tortious interference with contract and violation of Fifth Amendment due process. The complaint was long (80 pages, 261 paragraphs) and rhetorically loaded, deriding USADA's "kangaroo court" and its belief that it is "above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules." And those are the mild parts.

In  the complaint, Judge Sparks said it is "far from short" and not "plain," buried in "excessive" rhetoric; the court was "not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants." He noted that "[c]ontrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigativej ournalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not." A complaint, the court said, requires facts, not a "lengthy and bitter polemic against the named defendants."

This is an absolutely extraordinary order. I have written before about pleading as press release (Elizabeth Thornburg coined the term). The district court in the Duke lacrosse lawsuits took the plaintiffs to task for ther overly long and overly overheated complaints, but that was in the course of ruling on 12(b)(6) motions and was done largely in passing and as a reminder to the lawyers going forward. I have never seen a court preemptively and unilaterally reject a complaint for overdoing the rhetoric. Especially since, while Armstrong unquestionably was speaking to the sports media and the world, I am not sure the rhetoric here is so much more excessive than in other complaints.

Perhaps this is judicial order as press release. Judge Sparks knows the world is watching this lawsuit and he is proactively seizing control over the case and making clear that they litigate for the court, not for the press.

[Update: It turns out, Judge Sparks is known as something of a loose cannon, doing some unusual/borderline things when it comes to controlling what he sees as attorney misbehavior. (H/T: Bryan Camp of Texas Tech Law)]

Lance Armstrong's (Quixotic?) attempt to take on the US Anti Doping Agency

Lance Armstrong came out swinging today with a historic lawsuit against the USADA, which has charged him with doping. The suit was dismissed (without prejudice) by a federal judge within hours as an attempt to stir popular opinion. Expect Armstrong to refile the lawsuit soon.

Here's my take for Sports Illustrated on Armstrong's chances and strategy.

Two reads from Grantland

1) Our own Gabe Feldman breaks down the lawsuits brought by the Saints players challenging their suspensions for the bounty program.

2) Louisa Thomas has lovely essay on Title IX and women's tennis in the wake of the just-completed Wimbledon and the upcoming Olympics (coincidentally enough, in London).

One quick comment on Thomas's discussion of the failure of women's professional leagues.
But we somewhat have to think of this as the simple accident of history and timing. Women's professional leagues are trying to catch on at a time when professional sports are big, relatively successful businesses in which the athletes make a living as athletes. This creates an expectation that any women's league must make money right away to be sustainable. But most professional men's leagues were not financially successful at all in their early years; they certainly were not the  monstrous transnational businesses that the NFL, NBA, or MLB are. It was not that long ago (relatively speaking) that many professional athletes (including in the "big four" sports) worked "real" jobs in the off-season to pay the bills and that the leagues and individual teams were barely squeaking by (think about the first decade of the NBA). But no one is asking whether Women's Professional Soccer is as financially successful as the NBA was in its fifth season; everyone is asking whether WPS is as financially successful as the NFL--and when it's not, the league inevitably must fold.