Heisman havoc: Will the punishment fit the crime

The rules and regulations governing private organizations generally do not trigger the same types of inquiries or concerns as statutes, agency rules or regulations, the common law, constitutions, and other true "laws." However, when the organization is a large and widespread as the National Collegiate Athletic Association the rules promulgated and the investigations, hearings, appeals and other associated doctrine, take on a more legalistic significance for those operating within that structure. Accordingly, when information surfaced that Reggie Bush, a now-professional football player, received impermissible benefits for himself and his family while playing college football, the investigation, findings, conclusions, and now the fallout has had real law-breaking type consequences. The NCAA conducted an investigation and found Bush and his family had improperly received financial benefits while he played college football, and ruled Bush to be retroactively ineligible, voiding all types of recognition previously provided to him, his college, and his college football team at the University of Southern California. Now, a third-party - the trust that awards the "Heisman Trophy" each year to the top player in college football - is also considering stripping its award from Bush. This announcement has raised a lot of debate in both college football and law-type circles. The Heisman Trophy is awarded for on-field prowess. The infractions for which Bush has been sanctioned have nothing to do with how well he performed as a football player. His abilities and successes on the field would have occurred regardless of what type of automobile his family members were driving. So, should the award be revoked for non-performance based issues? Would such a punishment fit the crime? Many are saying "no." Others, however, believe that any recognition will endorse the rule breaking, and argue that a no tolerance policy is necessary regardless of whether the transgression gave Bush a competitive advantage. Initially, the consensus opinion at the Levison Group headquarters seemed to side with the "let him keep the statue" crowd. However, late last night, Ed, the guy who replaces our light bulbs, overheard our debates and made an insightful observation. "Why," Ed asked, "Do you say these violations had nothing to do with on the field performance? If not for the offers to provide the improper benefits, Bush would not have gone to that school. He would not have played with those players, and would not have been coached by those coaches. He would not have played against the opponents scheduled to play USC, and would not have played on those fields. Just as the science fiction writers tell us that going back in time and stepping on a butterfly could change the present world in untold ways, removing those payment promises from the recruitment of Reggie Bush could very easily have changed the Heisman picture that followed. The on field dynamics of college football were totally changed, not only at USC but at who knows how many other colleges. If you ask me, they should take it all away. " When he was done speaking, a light bulb went on over my head. (Ed is, after all, good at his job). Ed is, after all, correct. The argument of whether the Heisman should be taken away is missing the mark. There is no performance-based or non-performance based divide. The infractions impacted the results on the field. The decision of what to do remains with the Heisman-awarding Trust. However, the question is whether a further sanction from a third party based on the same infractions is double jeopardy or excessive punishment. There should be no question as to whether the initial award of the Heisman Trophy was affected by the transgressions. It simply was. —————————— Under Analysis is a nationally syndicated column. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman, Berger, P.C. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com. © 2010 Under Analysis L.L.C. Published: Fri, Sep 10, 2010

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