Thursday, February 02, 2012

Should We Simply Let Good People Do Good Things, Without Rules or Limitations?

-- Posted by Neil H. Buchanan

This week, Professor Dorf has authored two important posts criticizing the waste of precious media "property." On Monday, he decried Gail Collins's misuse of her twice-weekly op-ed slot with The New York Times; and yesterday, he bemoaned Stephen Colbert's refusal to allow his guests to make substantive points during interviews. I completely agree with the sentiments that he expressed in both of those posts, even though (or perhaps, especially because) I recently applauded Justice Stevens's domination of Colbert in an interview segment.

As regular readers of this blog know, I view Joe Nocera as the current problem child of the non-conservative NYT op-ed roster. Nocera has been a regular columnist for about a year, replacing the solid (but often unremarkable) Bob Herbert. Nocera has been a source of constant frustration. He often gets things exactly right, adding significant insight along the way, as in his take-down of the idea that the housing crisis was caused by Fannie Mae and Freddie Mac, or his defense of the government subsidy program for alternative energy sources that infamously lost money on Solyndra. On the other hand, he has said amazingly silly (and often downright stupid) things about the financial meltdown and the NLRB. While it can be dangerous to engage in the "inside baseball" of critiquing opinion columnists, Professor Dorf usefully reminds us that a platform on the NYT op-ed page is a privilege. It is truly a waste when any of the most fortunate writers on Earth fritters away his or her precious space with trivialities or, worse, sloppy reasoning.

As I noted in a Verdict column and two Dorf on Law posts earlier this year (here and here), Nocera has recently become obsessed with the National Collegiate Athletic Association (NCAA), accusing it of nearly every sin, up to and including institutionalized racism. Nocera has, in subsequent weeks, intensified his attacks on the NCAA, using some apparently sympathetic "victims" of the NCAA's supposed abuses to make the case that the association is a force for evil in the universe. (I wish I were exaggerating the emotional tone of his attacks.)

The crusading journalist is a heroic and iconic figure, serving important purposes in our nation's history. From Sinclair Lewis to Woodward and Bernstein, we owe great debts to those brave scribblers who were willing to speak truth to power. Even in this century, a business writer for The New York Times, Diana B. Henriques, performed a profoundly important public service by exposing the systemic financial exploitation of American military personnel. Henriques showed how the military served up idealistic and unsophisticated young men and women on a silver platter to financial operators, resulting in financial ruin for people who trusted their military superiors to give them access to good advice. This led to important corrective legislation, offered by then-Senator Hillary Rodham Clinton.

Unfortunately, the power of a high-profile journalistic job can go to even the most well-meaning person's head. Nearly everyone reading this blog is aware of David Segal's bizarre war on law schools, in which he has moved from a very helpful expose of some law schools' publication of misleading employment figures regarding their graduates, to a full-on attack on every aspect of the law school universe. It is difficult not to conclude that Segal has become drunk with power, with the notoriety and negative commentary that his columns have attracted encouraging him to imagine that he is following in the honorable steps of those who "afflict the comfortable, and comfort the afflicted."

Nocera's position as an op-ed columnist is clearly different from Segal's position as a supposed reporter. Even so, Nocera has now committed himself to a crusade against the NCAA, an organization that he holds in obvious contempt. As it happens, I have a rather ambivalent view of the NCAA, seeing it as an important governing organization that has done far too little to protect vulnerable student-athletes, but that continues to be our best hope of preventing big-time college athletics from falling into an ever-deeper pit of exploitation that would be financed by our collective thirst for entertainment.

The deep problem with Nocera's reporting, as it was with his analysis of the financial crisis and the NLRB, is that he views his victims as purely good and his villains as purely evil. This makes it impossible for him to tolerate nuance, especially the possibility that well-designed enforcement systems can sometimes claim innocent victims. Nocera's view of the NCAA is that it is simply out to destroy the lives of poor minority athletes, without any justification other than simple malice and vindictiveness.

The prime anecdote driving Nocera's recent reporting has been a Freshman basketball star at the University of Connecticut, one of the most successful programs in the sport. By Nocera's telling, this young man and his mother are being hounded by the NCAA simply because they were befriended by a man whom the NCAA does not like, Reggie Rose. As Nocera wrote on Wednesday: "The idea that Reggie Rose is not allowed to help [this player's mother] because the N.C.A.A. disapproves of him is, by any measure, offensive." Nocera has argued that the NCAA is somehow exceeding its authority by inquiring into the high school records of college athletes (before the player was even under NCAA jurisdiction!), by investigating the finances of players' families (an invasion of privacy!), and even by simply investigating anyone at all (hounding good people with offensive and embarrassing questions!).

Anyone with even the most passing familiarity with college sports could easily explain why the NCAA engages in each of these activities. Especially in basketball, there is an unsavory history of talented young stars being "befriended" by people like Reggie Rose (who is affiliated with the AAU, an organization that has had a particularly checkered record in exploiting high school basketball stars), with the players being induced to take under-the-table payments and to go for quick-buck arrangements that often destroy careers before they even begin.

Any organization that is concerned with reining in that kind of exploitation would need to develop and vigorously enforce rules that draw bright lines, to nip trouble in the bud. In this case, it requires the NCAA to enforce zero-tolerance rules that prevent third parties from offering any financial assistance to players or their families. Nocera complains that Rose's assistance merely amounted to paying for a few airplane tickets, to allow the mother to visit campuses with her son (reasonably pointing out that any responsible parent might wish to do the same).

What he does not acknowledge is that this kind of assistance is often merely the most visible aspect of a corrupt financial relationship between families and agents. Rose might claim to be a friend and mentor of the young man in question, but there is at least strong reason to suspect -- in the totality of the circumstances -- that this is a relationship of convenience, at best.

Furthermore, Nocera also fails to note (throughout this series of columns) that the NCAA rules in question are both longstanding and known by everyone. A person could not be a player or parent within the orbit of the big-time programs without knowing that financial assistance -- even in small amounts -- is a per se violation of NCAA rules.

Therefore, even if the rules in question are stupid, as Nocera insists, or if they are discriminatory, as he loudly claims, there is no question that everyone involved was on notice from the very beginning about these rules. At best, therefore, one might be able to claim that the parties to this case were involved in some sort of civil disobedience. Yet that is not even close to Nocera's claim. He insists time and again that everyone involved -- except the NCAA -- is simply looking out of the best interests of a sympathetic young man. For the NCAA to enforce its rules as written, therefore, is to be mean-spirited and vile. As he mockingly concluded his most recent column: "Thus does the N.C.A.A. protect the sanctity of amateurism and the purity of college athletics."

The problem with journalism in this vein is that it makes a mockery of the rule of law. Consider almost any rule or law, and the ways in which that rule or law could be enforced. While we always hope that law can bend to equity, we also know that sometimes innocent intent is not enough to excuse bad acts. Lawyers who commingle funds, but who do not profit from doing so, can still be disbarred. Why? Because the bar has determined -- for very good reason -- that it is unacceptably dangerous to allow fallible individuals to determine when they can be trusted to control funds intended for their clients. Prosecutors who withhold exculpatory evidence are guilty of (though too often not held accountable for) malpractice. Why? Because we know that allowing good people to shade the truth to get a good outcome is a sure path toward abuse.

Again, I have no problem with the idea of sometimes providing equitable relief against the harshness of the law. But to suggest that the NCAA is a profoundly unjust organization because it has rules, and because it makes it difficult to break those rules even for good people, is the height of irresponsibility. For all I know, in this case, the player in question deserves a pass from the NCAA. Nocera, in his zeal, has chosen not to provide us with enough information to know whether the NCAA is truly overreaching here. What we can see is that, in Nocera's world, it is apparently always wrong for an organization not to see that good people should be allowed to do good things. That is a profoundly immature view of the way the world should -- or can -- work.