The Penn State 'Consent Decree': The NCAA's Coercive Means Don't Justify the Laudable Ends, but Is There a Legal Remedy?

Abstract

In a July 23, 2012 Consent Decree, the National Collegiate Athletic Association (NCAA), acting through its Executive Committee and President Mark Emmert, imposed unprecedented sanctions on Pennsylvania State University (Penn State). This action apparently was taken in an effort to convincingly demonstrate presidential control of intercollegiate athletics after recent widely reported scandals involving violations of NCAA amateurism, academic integrity, and ethical conduct rules by persons associated with high-profile intercollegiate football programs. This unprecedented use of de facto "best interests" power to punish a member university for individual criminal activity and institutional misconduct which traditionally has not been disciplined by the NCAA and which was unilaterally imposed outside of its customary rules enforcement and disciplinary procedures violated Penn State's contractual due process rights and private association law as well as possibly federal antitrust law and state common law restraint of trade laws.

Keywords: sports law, NCAA, college athletics, intercollegiate, contract law, antitrust