The following letter was sent yesterday by PSU trustee Ryan McCombie to Keith Masser, Chairman of the Board of Trustees. It was subsequently forwarded to the PS4RS mailing list. It is certainly worth sharing.
May 29, 2013
Dear Chairman Masser
Board of Trustees
The Pennsylvania State University Board of Trustees:
Early tomorrow, a group of current Trustees, faculty members, former student-athletes, former coaches and others, including members of the Paterno family, will file a civil action against the NCAA regarding the unlawful manner in which the Association, its President Mark Emmert and former Chairman Ed Ray acted to impose the excessive and unreasonable sanctions against The Pennsylvania State University.
I have spent much of my adult life overseas, most often in third world countries, working and fighting to preserve the freedoms that all Americans enjoy. The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian government manages personal behavior is the rule of law.
The rule of law is a three-legged stool on which freedom sits: (i) The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority; (ii) the second leg is that no one is above the law and no one is beneath it, and (iii) the third leg requires that the laws not be changed retroactively or without notice by those who enforce them. (excerpted from Judge Napolitano, JW Review article of 19 July 2012).
I believe that the NCAA has violated all three of these principals. I further believe that as the Penn State situation demonstrates, the NCAA is an out-of-control monopoly and that it has used its excessive power to threaten and bully its members.
The NCAA states that it is a voluntary organization and mandates that each voluntary member abide by its rules, decrees, sanctions and penalties or withdraw from the Association. This is disingenuous. The NCAA has a stranglehold on major college sports. A University cannot play sports on the national stage without membership in the NCAA. Therefore, the NCAA is a monopoly.
This lawsuit is being filed only after much thought and careful reflection. I have had many passionate conversations with Penn State faculty and staff, some of whom have asked to “just allow us to move on for the sake of our students.” I have heard the pleas of President Erickson and former Chairwoman Peetz of the Board of Trustees to do likewise. I understand that all of these dedicated professionals want to go on with their mission of educating our students. I also understand the risk that the NCAA may attempt to increase or enhance the sanctions unless we simply capitulate and surrender without complaint. However, I believe that there is a greater lesson here. Our fundamental civil rights are tenuous and fragile. If we do not stand up and defend them, we risk losing them. If we do not act to defend the civil rights of others, we risk losing our own.
I do believe that the principles contained in the NCAA-required “Athletics Integrity Agreement” are a matter of good governance for any University. Nevertheless, as difficult as our present circumstances are, I believe we have an obligation to ensure that our students understand that there are risks and potential adverse consequences in not standing up for fundamental rights.
I also believe we have an obligation to our faculty and alums to find the core truth of what may have happened at their alma mater and take steps to ensure that appropriate punishment is imposed for those guilty of committing criminal offenses.
Americans are a fair-minded people and we have an obligation to ensure that fairness, due process and the rule of law is honored and fully supported.
For these reasons and others, I have agreed to participate in filing and prosecuting this civil action against the NCAA.I do not seek a predetermined result and have no idea what the outcome will be. If there is blame to be borne by any of our officials, a due process hearing will not hide the facts and we will accept the judgments that follow. There have been a great many mistakes made in this tragic and unfortunate situation, which began with the shameful victimization of young children by one man. However, these mistakes are compounded by an organization that has become too powerful, too thirsty for positive media attention, and too willing to use its authority in a manner that went well beyond its charter, by-laws or established precedent.
Ryan J. McCombie
Member, Board of Trustees
The Pennsylvania State University