Wednesday, November 9th, 2011...5:30 pm

W&M Students React…

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The SELS blog is pleased to announce a new feature to our blog. When any big events happen in the sports and entertainment law world, we will be asking students to give us their reactions. For our first edition of this feature, we will post W&M law students’ reactions to the Penn State Scandal. Feel free to give your two cents in the comments section.

Pat Slebonick – a 2L at W&M and a former division 1 football player
First off, I think that in general, athletes and coaches are held to a higher moral standard than the general public.  Regardless of the common perception of us, we are required to conduct ourselves in a better manner than the average member of public.  For example, if a college football player is arrested for drunk in  public etc. then their mug-shot will be on the front page of the local and probably regional newspapers.  If it is a star then national newspapers and ESPN will quickly carry the story.  There will be significant embarrassment for you, your family, and your team.  An average student at a college may be listed in the “arrest list” on the back page of a local newspaper.  I think because of our notoriety athletes are already held to a higher standard than the law requires.  It is probably appropriate for us to have a higher standard of conduct because of our roll in communities and societies.  Children grow up idolizing their favorite athletes and coaches; with this great power we also have a great responsibility.  If you live a life where you are idolized by so many people, especially children, then I think that you have a moral obligation to hold yourself to a higher standard.
As you can see above, I don’t think athletes and coaches are able to  evade the law because of their position already.  They often find themselves being made examples of or receiving harsher penalties than their peers who engage in the same activites.  There are also many times where athletes are falsely accused then later exonerated simply because of their high-visibility. For an example of a coach losing his job over a DUI, see Latrell Scott former head coach of University of Richmond. Not many people would be fired from employment (unless it was a driving job) for one or two DUIs. For a player who was (likely) falsely charged despite sworn affidavits by bouncers and bar owners of his innocence see Jared Jefferies (LSU).  Plaxico Burress (former NY Giant) was given a significantly heavier sentence then the average person who was charged with illegal handgun possession in NYC.  Then there are of course countless examples of athletes who are arrested around the country every day.  See “badjock.com” if it still exists.  Forgive me if it is something other than a list of athletes/coaches who have been arrested.
All that being said, I think the Jo Paterno should have reported such allegations to the Police.  I think that within many systems and organizations he would have sufficiently met his responsibility by disclosing this information to his immediate supervisor.  Effectively he is a middle-manager.  He has many bosses.  He is in charge of the football players, coaches and that is it.  He would be similar to a department head in many corporations.  I believe that it was the perogative of his supervisors to report this to the state police.  I can see how once the matter was under investigation by his bosses he had fulfilled his duty.  Either way as such a public figure he is held to a higher moral standard and will clearly be chastized for not doing so.  I’m not sure how many people would go straight to the police after their boss takes the investigation.
Joe Paterno should have made sure that the even was reported to the police.  If his boss failed to report it then he should have stepped in and done so himself. But I am not clear about whether his boss reported the incident or not.  Insofar as his boss failed to protect the children then I believe he morally had a duty to act.  However, the person who reported the incident (an assistant coach now at PSU) may even be more responsible.  He was the witness who caught the act, I believe it was probably his responsibility to report the incident.
Although athletic departments may “Adopt” new rules for reporting incidents, I’m not sure there will be any substantive change to how this works.  This is a (hopefully) unique case that no athletic department is likely to have a specific policy for.  My understanding is that most criminal activity must be reported to certain people in the department and then it is the departments responsibility to handle.  In some cases the coach may be given the ability to discipline a player however he/she sees fit.  This is probably the best way to continue handling these matters.
Baker Coon – a 2L at W&M and a Middlebury Alum
Joe Pa accomplished great things for Penn State.  But men who accomplish great things are not always good men.  I don’t necessarily believe that sports figure heads should be held to a higher standard than regular people – but I believe ALL people should frequently be held to a higher standard than the law requires in the world we all inhabit – the world where morality is frequently unambiguous.  Ultimately, this is not a “sports” issue so much as it is a power issue.  Those with power are charged with the responsibility to protect those without it.  The abused children in this case were essentially powerless compared to Joe Pa.  He could have prevented the horrific injustice that occurred inside his athletic facility easily.  I think everything I just wrote can be summed up very simply: Desmond Tutu famously said “If you remain neutral in situations of injustice, you have chosen the side of the oppressor.”  The message is simple; those who do the bare minimum, or those who say “it’s not my fight,” are the very same people who empower the wrongdoers.  Wrongdoers would be much more fearful and hesitant to do their wrongs if more of the neutral people were willing to fight against them for it.  True, the real “wrongdoer” here is Sandusky.  But Sandusky was essentially licensed by Joe Pa and others who chose not to stop him.
Joseph Alden Figueroa – a 1L at W&M and a UVA alum
I idolize Joe Paterno.  I did not go to Penn State, but my Dad went to Grad School there, and he often spoke quite highly of the man.  I picked that up very quickly, and as a huge fan of college football, he became a symbol to me.  A symbol of success, of excellence; of how a mentor to young people is supposed to act.

I am ready to believe JoePa.  I am ready to give him the benefit of the doubt.  I am willing to forgive him.  I am willing to believe he should stay at Penn State.

And that is exactly why he must go.

Paterno has announced that he will retire at the end of the season.  Even if this is a half-measure, it is a necessary conclusion to this ordeal that Paterno no longer coaches Penn State.

What happened was unacceptable.  It was reprehensible.  Something needed to be done about it.  And Paterno established himself over the decades as someone with a pristine record, someone who leads by example, someone who does the right thing for the sake of doing the right thing.  We do not know how much he knew about the incident in 2002.  Perhaps he did the best a head coach could do given the circumstances.  But the reason I idolize the man is that he is more than a Head Coach.  He is a legend.  He is the King of Penn State, State College, and quite possibly the entirety of Central Pennsylvania.  He should be held to a higher standard.  If he knew that something related to the sexual harassment of a child, he needs to do more than the legal minimum.  He needs to establish a high standard as someone who oversees the development of young people, and he failed that high standard by not seeing the prosecution of this man to fruition.

This argument goes beyond Joe Paterno and higher standards.  If you are a platoon leader in the Army, and something wrongful happens on your watch, you lose your post. Period.  These are the consequences of moral culpability, even if it does not rise to criminal culpability.

The legal principle of Res Ipsa Loquitor (the thing speaks for itself) seems apt here.  Children were hurt beyond any measure of acceptable behavior.  Some of these actions occurred directly under Paterno’s leadership.  The Grand Jury spoke of at least one child who was assaulted after the alleged Penn State incident took place, after JoePa and Penn State could have reported this man to law enforcement.  No matter what he knew, he is to be held responsible for such actions.  The thing speaks for itself: there must be consequences for the lack of action.  My idol must go.

Paul Wolfgramm Jr. – a 1L at W&M and a Penn State Alum

In my business classes, professors consistently used the example of Penn State to discuss marketing and corporate branding. Penn State prides itself on its network, and on its model for producing above average ‘school spirit,’ which drives zealous student participation in university activities, like buying football tickets, and alumni loyalty, measured in donations. Joe Pa was always identified as a central figure in Penn State’s brand image. The professors who taught me this perspective are the same people advising Penn State’s highest levels of administration. So, regardless of Joe Pa’s coaching ability, he had extreme value to Penn State’s administration as head coach, because of the revenue that his name generated for the university.

Graham Spanier, university president, Gary Schultz, vice president of finance and business, and Tim Curley, athletic director, seem to have the same level of culpability because they together discussed the appropriate sanctions that should be placed on Sandusky in regard to his on-campus activities. This all inclines me to be suspicious of Spanier, Schultz, and Curley, all administrators, who have an obvious motivation to preserve the reputation of Penn State’s brand, perhaps more than their motivation to provide justice to Sandusky’s alleged victim(s).

Mike McQueary is likely to have been explicit about what he witnessed Sandusky doing when McQuery reported to Joe Pa, Curley, and Schultz, because he was visibly disturbed by what he had witnessed, suggesting a desire for justice. He was also the most junior member of Penn State’s administration, reporting to more senior members. This tells me that McQueary did not want to ‘rock the boat’ with frivolous concerns, motivating him to be explicit with his superiors. Also, McQueary would not have gained from ruining Sandusky, a retried Penn State assistant coach. This, and the discovery of new victims all incline me to believe that McQueary’s witness testimony is authentic.

Joe Pa blew the whistle by informing his administrative superior, Curley. Joe Pa, while a wise football mind, is an old man (and he has been for a while). He is prone to forgetting players names, and other lapses of memory. His capacity as a head football coach has been diminishing for years, requiring increasing reliance on his assistant coaching staff. Joe is a simple man who devotes all of his physical and mental energy to the demands placed on him as a coach, and his multiplicity of charitable projects. I believe that Joe Paterno was told by Schultz, who oversaw University police, that the matter was being investigated and taken care of, and that Joe should confine his world to coaching and charity, as he has for 40+ years. Joe Pa preaches nothing but ethical leadership, “success with honor,” so I have little doubt as to his moral character. As to whether he should have gone further to alert authorities about Sandusky’s alleged misconduct, I believe Joe Pa was only guilty of trusting his administrative superiors. He believes in the good of people, and it was not his place to launch a rogue investigation into the acts of a retired employee when he was convinced that the matter was in responsible hands. I am sad that the legacy of one of sports’ greatest coaches is now tarnished by this scandal, but it will serve as an important lesson for a school that once considered ethical culture as a competitive advantage over other schools.

Jim Ogorzalek – a 1L at W&M and a Notre Dame Alum

I guess I’m a romantic. Somewhere deep down inside I just want to believe that NCAA athletics (football in particular) is not just a business, that it’s not just the NFL by another name. And if this fantasy was true anywhere—if there was any school in America that still adhered to a higher moral code—many of us romantics would have expected it to be where Joe Paterno was. The old patriarch’s nickname, “JoePa”, even carries fatherly connotations. We counted on him to be in control, to expect more from his players, and to demand more from himself. And yet, assuming the facts indeed are as they seem to be that Paterno knew about the horrible allegations relating to his assistant coach and did no more than inform his superior, JoePa failed us.

You see, romantics like me believe that there is still some moral growth to be found in athletics and that collegiate athletics serve the important purpose of transforming adolescents into adults. Specifically in football, a coach is charged with using football to turn boys into men.

I don’t know enough about the law to comment on Paterno’s legal obligations. But I think I qualify as a person who—holding himself up as a good man—may comment on that.

The problem being ignored here, as I see it, isn’t why Paterno did not take the information to the police (though this is a legitimate question for anyone who believes they would have acted in a more noble way). Rather, the question I have is why JoePa, the Prince of Penn St., the King of State College, the true patriarch of college football, didn’t have the courage to stand up to his friend and his superiors (though I have to wonder whether anyone in Pennsylvania was actually more powerful than Paterno) and demand that this horrific situation be dealt with properly.

A true man stands up for children who are sexually abused. A true man would have no difficulty in confronting a friend or colleague when he receives the type of news that Paterno allegedly received.

A true coach does this so that his players know how a true man acts.

I guess JoePa wasn’t that true coach after all…

Rachel K. McDonough – a 1L at W&M and a BC alum

If this were the Catholic Church, and not the Penn State football program, I don’t think there would even be a debate. Those who knew and did not alert the authorities, must be held accountable, no matter how many wins they had.

Nate Yu – a 1L at W&M and a USC alum

From a public relations perspective, Penn State handled this as poorly as possible. It is appalling, really.

For starters, the UNIVERSITY PRESIDENT issued an immediate statement that said the university supports the former defensive coordinator unconditionally. Unconditionally? Really? So if all of the allegations were true, and if all of the cover up was true, Penn State would still suppor them? Interesting.

Furthermore, the president’s statement made no mention–zero mention–of the victims involved. How about some empathy, which does not necessarily have to mean admitting fault. But let’s show some humanity. (For the record, the president is either resigning by the end of the night or being ousted by a board of trustees vote).

Legal issues aside, the handling of the PR was embarrassing. The steps from here are obvious: clean house. That includes Paterno. It’s baffling why they are going to let him finish the season. I’m as big of a football fan as there is, but Joe Pa’s legacy and the Penn State football season mean nothing considering the circumstances.

Dave Johnson – a 1L at W&M and a John Hopkins alum

The only reason that Joe Paterno should receive any sort of benefit of the doubt in this situation is because he is not on trial and is innocent until proven guilty of having done something to further or cover the abuses of Sandusky. On re-reading the grand jury recommendation, it does not seem that any further incidents (that we are aware of) occurred at the Penn State facilities. So, maybe as far as JoePa was concerned, the university had taken care of the issue – EXCEPT Sandusky continued to hang around the facilities. As a former long-standing coach, he maintained an office and continued to have access up until about two weeks ago.

As a man who, in his statement today, professed to always be about protecting the best interest of “the university and young men who have been entrusted to my care,” I would think that a little extra follow-up on Paterno’s part would be warranted. Perhaps he fulfilled his legal duty, but let’s not forget that it seems that he did so to the bare minimum. JoePa himself wishes he had done more, and maybe morally he should have. Unfortunately, NCAA football is a business and he went to his boss. It might be a very good indicator of where his allegiances lie, given that In his statement today, he even placed the university before the players.

We know very little at this point. Maybe we’re all worked up without knowing that Joe Paterno tried very hard to make the information he had known to the appropriate people. As a former youth hockey coach (for a program similar to Sandusky’s), my perspective is skewed by the belief that the children should be protected first. By speaking up in the first place, I believe (whether legally valid or not) that Paterno took it upon himself to represent those children and protect their interests. It may be too naive to believe that he (and the graduate assistant, and everyone else who witnessed the sexual abuse in each of the numerous circumstances) assumed something akin to a duty of care for the children, but if he did not do so legally, they certainly did so morally. He intervened on the behalf of Victim 2, but, as far as we’re aware, did not see his own good intentions through to resolution. That said, we only have a grand jury recommendation, so our facts are sparse and we’re roasting a lot of people right now in the pyre of public opinion. The available information points to a failure on the part of many people – many of them failures under the law. For now, Paterno deserves the legal benefit of the doubt. In the moral arena, he is not afforded the same protection.

Children within our legal system are largely reliant upon adults for their protection. As a coach helping young men become adults, steering them through a formative part of their life, no one should know that need better than a coach like Paterno. He may have fulfilled the law. He did not fulfill his own personal and moral mission. Hopefully, no further children suffered because these individuals did not try to go further to prevent Sandusky from causing further harm.

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