The Penn State Debate: Are NCAA Sanctions Inevitable?

Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on. 

By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.

The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1  lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw 11.1.2.1 states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”

To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.

Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.

Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating, “We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.

Want To Be Better At Public Speaking? -- Listen to Country Music

I was not a fan of Country Music.  I grew up in Los Angeles in the 1970s and 1980s, and it was just not a "Country Music Town".  While in college (in San Diego) I never even saw a country band play anywhere.  Nobody I new listened to the genre.  (I have memories of some Kenny Rogers being blasted on a camping trip once, but not sure who was responsible for that cassette tape).  After I moved to Texas I kept my musical tastes tied to Rock, Pop, Oldies and a little Jazz.  No Country!  

However, as a professional speaker I have learned that successful oratory is tied to the ability to tell a story.  Regardless of the topic, if a speaker cannot reach the people listening, their whole presentation can fall flat.  The same is true for musicians.  While all types of music tell stories, there is no better way to learn how to clearly and quickly weave a captivating tale than listening to the master song writers from Country Music. 

Two years ago I began listening to a local country station as a means to understanding how to connect the power of a story to the message of a speech.  The songs are more than entertainment, they are windows into the soul. In just a few minutes we can see the mental pictures and be transported to a different place and time.  We are allowed to share the experiences of others and thus we become more connected to the greater world view.

Too many speakers take the stage and give a data dump of information.  They fail to see themselves as needing to entertain and tell a story.  Some actively shun the idea of being more than a brilliant mind that barfs knowledge.  

While statistics, graphs and spreadsheets are useful, they are not enough to grip an audience and cause transformation.  To have a real impact on people we must connect to them at a level of the soul.  Ancient tribal leaders did not use pie charts to inspire and educate people, but instead they told relevant stories.

Every presentation should have a story.  If the person speaking has no personal connection to the topic then they are simply delivering a book report. In a world filled with so much noise and little differentiation, your story is the unique stamp that takes ideas beyond a passing string of words and implants them forever in the memory of the audience.

If you want to become a better storyteller, and thus improve your presentation skills, tune into a little Country Music and do more than tap your foot to the beat.  Dissect the words and seek out how that short story set to some guitar strumming becomes a movie that plays out behind your eyes.  Over time you will begin to see the ways that Country Music will make you better at public speaking.

Have A Great Day

thom singer 

Sports Law Internship Opportunity

The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:

http://baseballjobs.teamworkonline.com/teamwork/r.cfm?i=39878

Sting Concert in Houston

Last night my wife and I went to watch Sting perform at the Verizon Wireless Theatre in Houston.

The first time I saw Sting was in 1991 at the Concord Pavilion in the Bay Area (we have been to two other Sting concerts in-between).

Many things have changed over 20 years:

• Concert venues are now named after corporate sponsors, not the city where they are located.
• In 1991 Sting was 40 years old and his audience was young (umm, myself included).
• Today he is 60 years old, and so was most of the audience. (Although we should all hope to be in that good of shape at sixty).

Some things remained the same over 20 years:

• Sting puts on one hell of a great show.
• His music is timeless.
• My wife still looks amazingly hot dancing at a concert.

It was a quick overnight trip to Houston, but we had a great time at dinner and the concert.  The concert was her birthday present (The B-day is in September) from our kids.  They sent us to dinner and the concert while they stayed with the visiting grand-parents.  Oh, and when I say it was a gift from the kids, they still made me pay for the tickets!   (I also had a meeting with a potential client while in Houston).

Have A Great Day

thom singer

Brainstorming Is Important To Entrepreneurial Success

Ideas are paramount to success for an entrepreneur.  However, not all ideas are the right ideas for starting a business or tackling challenging problems.

Some businesses are spawned from a single idea. However, most who achieve sustainable success will need to consistently be identifying new concepts, products, services, and ways to overcome obstacles.  A one hit wonder in the world of business ideas is no different than a rock and roll band who has just a single song on the charts.  Entrepreneurs must always be on the look out for the "new thing" either to grow their existing company or to launch their next venture.

Brainstorming can take many different forms.  The concept was popularized in the 1950's and 1960's by Alex Osborn, in his book, "Applied Imagination".  It is a process for developing creative solutions to problems and Osborn proposed that teams could double their creative output through brainstorming techniques.

When a team of people are working together and committed to discovering powerful solutions, the end result is often stronger than any one person could have achieved alone.  Effective entrepreneurs do not operating in a vacuum.   They are surrounded by people who allow them to expand beyond their own limitations and weave the best thoughts together and create powerful solutions.

Brainstorming involves a group of people focusing on a problem, and then coming up with as many solutions as possible.  There are no bad ideas and the purpose is to push the creative thought to beyond the standards.  Each person can expand on the ideas of the next and combine concepts while creating new possibilities.

The process can be both formal and informal and it is important in the formation stage of a business as well as when tackling issues that can stall a company's progress and growth.  To continually have success and entrepreneur must always be seeking ideas and formulating plans.  Getting your whole team involved will have the added impact of creating a culture where everyone is looking to add to the greater good for the company.

Once ideas are uncovered there must be a process for deciding which should be acted upon. There is neither the time nor resources available to act upon every idea that comes along for a business, and not all ideas will help move the company toward its ultimate goals.  The entrepreneur's experience, instincts and trusted advisers all play a role in deciding how to implement actions. In finding success the entrepreneur must be willing to take the risks and go for blazing the new trails, as sometimes they will chase the wrong ideas and make mistakes.  

Discovering the ideas, while important, is only part of the journey for anyone who is looking to grow a business.  But without the ideas, their is no starting place from which to build.

Have A Great Day.

thom singer

Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)

By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:

- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).

- Anthony v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the Northern District of California, which is part of the 9th Circuit).

- National Basketball Association v. National Basketball Players Association (filed as a declaratory judgment suit by the NBA teams against the players on Aug. 2, 2011 in the U.S. District Court for the Southern District of New York, which is part of the 2d. Circuit).

Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.

(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.


One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.

In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.

(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case

In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."

While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.

While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.

For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.

Business Meeting Facilitation - 2012 Team Kick-Off

Is your company or law firm planning a year end meeting or 2012 kick off?

Would the outcome be positively impacted with a facilitator to jump start the conversation,  DiSC profile assessments, and a business development & sales focus?

Let's talk.  ;-)

thom singer
thom (at) thomsinger.com
(512) 970-0398