Corman v. NCAA: Validity of NCAA Consent Decree Will Expose Collusion By All Involved

Judge Anne Covey's ruling for discovery to be completed by November 7, 2014, to add PSU as a defendant, and to depose NCAA officials will ultimately result in exposing the collusion between the NCAA, the Big Ten, PSU, Freeh, and the OAG.  Trial date has been set for January 6, 2015.

By
Ray Blehar

Judge Ann Covey's ruling that the validity of the NCAA Consent Decree was to be decided by the Pennsylvania court will likely expose the collusion between the entities involved and put an end to the lie that PSU was forced to sign off on the NCAA Sanctions under the threat of the Death Penalty.

While Mark Emmert has publicly stated that the Death Penalty was on the table, will Emmert stick to that story under oath and risk being held in contempt of court (as famously happened to President Clinton when he lied about his affair with Monica Lewinsky when deposed in the Paula Jones case)?  

Emmert and the NCAA are attempting
to weasel their way out of defending the
validity of the NCAA Consent Decree

Clinton was hit with a $90,686 fine and disbarred  over the matter. One has to wonder whether Emmert would suffer an even greater penalty, such as removal as President of the NCAA, if his story doesn't match up with the seventeen others who will be deposed in the case.

It seems that Emmert and the NCAA are attempting to weasel their way out of the case by appealing to the Federal court for an expedited decision on Covey's ruling. 

Update: U.S. District Court Judge Yvette Kane denied the NCAA's motion of an expedited hearing.

 As Pennsylvania Treasurer Rob McCord argued, the NCAA has shown no evidence of an exigency requiring an expedited hearing and that the NCAA was attempting to "moot the controversy" that they believe emanated from Covey's decision.

While the depositions may tell the tale of whether or not the Death Penalty was on the table, discovery in the case is likely to reveal collusion.   The NCAA has already admitted to their own and the Big Ten's involvement in the not so "independent" investigation conducted by Freeh, Sporkin, and Sullivan (FSS).  From Covey's April 9, 2014 ruling, page 20:


In December 2011, Big Ten legal counsel, along with NCAA counsel, engaged in the independent investigation undertaken by Louis Freeh and his law firm, Freeh, Sporkin, & Sullivan, LLP. . . .

The term "engaged in the independent investigation" connotes active involvement in the investigative process.  

Alumnus Ryan Bagwell's RTK effort resulted in PSU legal representative Frank Guadagnino producing an affidavit stating the NCAA and Big Ten only received progress updates and had discussions about publicly available information from Freeh's team.

Evidence reveals that statement may be false, depending on the NCAA's source.

  

Documents and Testimony Reveal OAG Shared Evidence Outside Law Enforcement Channels

Documents obtained from Old Main reveal that around January 2012, the NCAA was provided with information regarding potential/alleged NCAA minor rules violations that were uncovered during the OAG's investigation.  

It is not clear whether the OAG, Freeh, or Penn State provided this information to the NCAA.

What is clear, however, is that evidence related to a secret grand jury investigation should not have been shared outside law enforcement channels.

After receipt of the information, the NCAA informed Penn State of its intentions regarding the alleged violations, which was to "wait for Freeh Report."

It has also been well documented that FSS was the recipient - and not the provider - of evidence related to the emails and the so-called "secret file" of Gary Schultz.  

We know from Moulton's report (page 158) that the Penn State emails were turned over the the Pennsylvania State Police on July 7, 2011 -- over 8 months prior to Freeh's claim of his "independent discovery" on 20 March 2012 and that Freeh's claim of establishing the correct date of the McQueary incident does not mesh with the testimony of OAG Agent Tony "TV Guide" Sassano.

"Our investigative team made independent discovery of critical 1998 and 2001 emails – the most important evidence in this investigation. We also confirmed, through our separate forensic review, that the correct year of the Sandusky sexual assault witnessed by Michael McQueary was 2001, and not 2002 as set forth in the original Grand Jury presentment."

And...

"In critical written correspondence that we uncovered on March 20th of this year, we see evidence of their proposed plan of action in February 2001 that included reporting allegations about Sandusky to the authorities."

While it is likely the emails were provided by PSU to Freeh, we know that Schultz and Belcher turned over the so-called secret files to the OAG in April 2012.   That pre-dates Freeh's 5-1-2012 notations for Freeh Report references to the Schultz file.  Belcher testified that she refused to turn the notes over to the PSU attorneys and Freeh.

This appears to be a case of secret grand jury evidence being shared outside law enforcement channels.  

While the current PA Attorney General's Office would not confirm or deny that there was an ongoing investigation related to leaks in the Sandusky and Conspiracy of Silence cases, OAG official James Barker provided this statement:

" I cannot comment on whether we are conducting an investigation, Grand Jury related or otherwise.  However, if you have information concerning a possible compromise of Grand Jury secrecy, we certainly are interested in obtaining that information.  The Office of Attorney General always has an interest in maintaining the security of matters before a Grand Jury regardless of whether we have an ongoing investigation or not."

Collusion, not "Cram Down"

While Rodney Erickson has maintained that he was forced into signing the Consent Decree and that his decision was endorsed by a small group of unnamed Trustees, there has always been questions surrounding whether the threat of the "Death Penalty" was really on the table.  

According to Dr. Ed Ray, the suspension of play was immediately dismissed by the NCAA Executive Committee, who then went on to discuss other options.  However, his answer to the preceding question reveals the NCAA's involvement during Freeh's investigation.

Q: How have the past few days and weeks been for you, knowing the enormity of the Sandusky scandal and its consequences?

A: This has been a rolling process of discovery of just how tragic the circumstances were at Penn State University. It began back in November 2011, and we learned more over time, through the Sandusky investigation and trial. I think it culminated with the Freeh Report that was commissioned and accepted without exception by the university. It was the release of that report and the acceptance of the findings by the university itself and the concurrence with the NCAA that led us to move forward with deliberations over whether or not it would be appropriate to create a set of punitive and corrective actions by the NCAA to be imposed on Penn State University – hopefully in a consent decree, where the university accepts proposed actions we put forward, and that’s what happened. 

Q: Is it true that had Penn State not consented, there was a possibility that the so-called death penalty would be enacted?

A: Well, let me tell you what I can tell you. We actually had our own internal discussion and a discussion with President Emmert. We told him to go out and put together a package of actions, both punitive and corrective, and come back to us. We want to discuss them, and we want to declare what we think are appropriate actions. As part of that, we talked about whether suspension of play ought to be one of the actions that we would call for. People honestly disagree. … I mean, this is horrific, it’s pretty hard not to want to make harsh judgments. … But the overwhelming vote – we took a vote – in both the executive committee and the Division I board was not to include a suspension of play or death penalty, and then we quickly moved to the menu of actions that you heard about today, and we voted unanimously to support that package. At no time did we ever have a discussion about, “If they don’t do this, we’re going to do that.’’ That is a conversation that never occurred.

As I posted a few months ago, Erickson's five-point promise (that was likely drafted by the BOT) established a template of sorts for the NCAA Consent Decree.  In the days after the Freeh Report was issued, Erickson stated in this video that "PSU would continue in dialog with them [the NCAA] about what are appropriate sanctions."

The NCAA, in its September 23, 2013,  Answer and New Matter with respect to the Plaintiff's Second Amended Complaint, wrote  that PSU opted for the NCAA Consent Decree in order to avoid an investigation.  


"In part to avoid a prolonged NCAA investigation and NCAA hearings, [PSU] entered into the Consent Decree, which constitutes a binding contract between the NCAA and [PSU]."

It certainly appears that the NCAA has willfully admitted that PSU opted for the Consent Decree, while Erickson may have inadvertently admitted that the Consent Decree was a result of negotiation between PSU and the NCAA -- and not a cram down.

Conclusion

Penn State not only wanted to avoid an NCAA Investigation, but appears to be committed to fighting along with the NCAA to ensure that the behind the scenes negotiations regarding the NCAA Consent Decree never see the light of day.

Many people have asked, what is the PSU Administration and the 11/9/11 Trustees hiding?

The answer is that it isn't just one thing, it's many things....starting with the truth.