The Sports Blawg with the Fordham Sports Law Forum

Penn State football dates back to 1887 and its pigskin program is one of the most honored and accomplished in National Collegiate Athletic Association history.  Two consensus national championships, seven undefeated seasons, 22 inductees in the College Football Hall of Fame, 43 bowl game invitations, and Joe Paterno, the winningest football coach in NCAA history, are but a few of the countless bright spots for the Nittany Lions over almost 125 years of stellar play.  Recent accusations of sexual abuse by a former member of the Penn State coaching staff, and an alleged cover up by the athletic department and administration officials, may serve to write an entirely new chapter in the University’s storied history.

The criminal indictment of former Assistant Football Coach Jerry Sandusky for alleged incidents of sexual abuse have already led to his banishment from the Penn State campus and the termination of Coach Paterno, the Nittany Lion coach for almost 46 years.   Other school officials have stepped down and have been charged, and there may be further individuals who face disciplinary action as various law enforcement agencies pursue their investigation of this growing scandal.

Sandusky with Head Coach Joe Paterno.

But the actions of Coach Sandusky, and the cover up which may have ensued, are not the only issues of concern.  As the facts continue to unfold, it becomes more and more apparent that certain acts in question from 2002 were reported to school officials, and investigated by these officials as well as campus police – but were not immediately reported to local, county or state law enforcement.  Rather, school officials seemed to circle the wagons and keep this matter within the Penn State family – without notifying local police.

This raises an issue that extends beyond the Penn State campus, and beyond NCAA football, and that should resonate in every community in which a university or college exists.  To what extent, if at all, should these institutions be permitted to retain jurisdiction over the investigation, prosecution and punishment of alleged criminals?  Posing the question more directly, do universities and colleges have a duty to report alleged criminal activity to law enforcement authorities?

Let’s get real.  Money and reputation are at stake.  In 2010, the Penn State football team generated $70,208,584 in revenue and $50,427,645 in profits.  The Nittany Lions are a cash cow.  The football program is the face of the University and the focal point of the school’s reputation nationally and globally.   There are vested interests in preventing any scandal from touching this sacred Penn State institution.

Beaver Stadium is home to the Nittany Lions and is one of the nation's premier football venues with a capacity of 106,572 people.

Now let’s take a look at federal law – and, specifically, The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act).  Originally known as the Crime Awareness and Campus Security Act, the statute was enacted in 1990 and named after a 19 year-old Lehigh University student who was murdered in 1986.  The Clery Act requires colleges and universities to disclose the number of criminal offenses on campus that are reported each year. In certain cases, the institution must issue a timely warning if a reported crime represents a threat to the campus community.

On November 9^th, the U.S. Department of Education announced an investigation of the Penn State matter for possible violations of The Clery Act.  Institutions that fail to comply with the Act´s’s requirements may be fined or lose eligibility to participate in federal student aid programs.  Aside from the monetary penalties, the blow to a school’s reputation can be enormous, with significant ripple effects that may take years to overcome.

Enormous discretion is afforded to college administrators and campus police forces in determining whether to address a matter internally or refer it to the local district attorney.  The Penn State scandal serves to shine a bright light on this discretion and whether the determination can be entrusted to administrators and campus law enforcement—all of whom have a compelling self-interest in not tarnishing the reputation of the institution and harming its key profit centers.  As the director of national campus watchdog organization, Security in Campus, acknowledged, “[w]hen a university culture demands silence, campus police come under great pressure to follow suit.”

When it rains it pours.  The Penn State revelations were followed shortly by similar sexual abuse allegations brought against a basketball coach at Syracuse University.  The Syracuse Orangemen have the fifth winningest basketball team in NCAA Division I college hoop history.  The team generates over $10 million in profit annually and topped the Big East in average attendance.

When the allegations against assistant coach Bernie Fine first surfaced in 2005, Syracuse conducted an “internal investigation” and the matter was subsequently closed.  As in the Penn State debacle, Syracuse University officials are now under fire for closing ranks and failing to notify local law enforcement of criminal acts allegedly engaged in by a long time coach of a major athletic program at the school. 

Bernie Fine, the 36-year assistant basketball coach at Syracuse University, was fired after investigations against him surfaced regarding child molestation allegations.

While the Penn State and Syracuse University incidents are playing out in the glare of the media spotlight, it is important to note that they are not new or novel.  In October 2010, Marquette University was accused of mishandling sexual assault allegations against four student athletes.  In 2009, Dominican College was forced to pay $20,000 to the State of New York for failing to act appropriately after two student athletes sexually assaulted a female freshman. The alleged rape of an Arizona State also mishandled the alleged rape of a student by a football player who had a history of sexual aggression in 2008.  

The issue of colleges keeping allegations of serious criminal acts within the “university family” to avoid damage to its reputation or bottom line is real, is prevalent, and must be addressed.

It is easy for universities to be blinded by the money and publicity their athletic teams provide.  Handling these incidents internally is a convenient way to save face in the arena of public opinion.  However, the consequences arising from this behavior are not only severe, but also detrimental to the lives of those affected.  The Clery Act is just one attempt to undercut ulterior motives of university police and officials.  While sweeping issues under the rug may be a temporary solution, as Joe Paterno once said, “the minute you think you’ve got it made, disaster is just around the corner.”

 The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.