Thursday, November 27

NCAA's Dishonesty in Penalizing PSU Should Be Its Downfall

Mark Emmert's lack of integrity and overreach by the NCAA in the PSU case makes the case for members to walk away.

Ray Blehar

"Penn State will be the death of Mark Emmert, that's my prediction."

                                                                                                                      -- Sonny Vaccaro, November 10th, 2014

When Sonny Vaccaro made that prediction at the Sports for Social Change conference at Drexel University, Mike Jensen of the Philadelphia Inquirer opined that Vaccaro didn't sugar coat his opinions because he was in the state of Pennsylvania and the conference had an anti-NCAA feel.

I disagree.  

Vaccaro didn't sugar coat his opinions because the facts are on his side.  Even with just a partial set of facts, the NCAA has been subject to harsh criticism for its alleged "bluff" of PSU and abandoning its primary purposes.

When questioned by the Senate about why the NCAA should exist, Emmert stated that the problems and issues that made recent headlines were confined to big-time sports, which only makes up 5% of the NCAA. He pointed to the lack of problems in non-revenue sports as evidence  that the NCAA was effective 95% of the time.  

Of course, his answer was nonsense.  The only difference is less media attention is focused on violations (and crimes) that occur in non-revenue sports.

Ironically, one of the key players in the PSU case, Wally Renfro, said upon retiring that NCAA member schools are an aggregation, but whether they decide to be aggregated under the NCAA or another body is up to them.  As the Power Five conferences have been given some autonomy to govern themselves, the writing is on the wall that the days are numbered for the governing body of collegiate athletics. 

While those closely following the case understand that the entire PSU case is based on falsehoods, when the media finally wakes up to that fact,  the PSU case should be Emmert's and the NCAA's Waterloo.

The NCAA Failures in the PSU Case

What is most disturbing about the PSU case is that the NCAA accepted PSU's "plea" of a Lack Of Institutional Control (LOIC) all the while knowing there was no evidence or underlying violations to make that case.

On November 17th, 2011, the NCAA's letter to PSU cited numerous by-laws in forcing its way into the Sandusky matter.  A fair reading of the cited By-Laws (i.e., 2.1,  2.4,  6.01.1,  6.04,  10.1, 10.01.1,  11.1.1,, and 19.01.2)  reveals that NCAA rules or by-laws violations must exist that emanated from a lack of integrity, honesty, or values.  

In other words, illegal benefits, a competitive advantage, unsportsmanlike conduct, or an environment that negatively influenced student athletes must be present for the NCAA to make its case for a LOIC.

The NCAA simply didn't have the evidence to make that case and apparently had no idea that the claims they made to support penalizing PSU were ridiculous in light of the facts.

Athletics Integrity Agreement, Scholarships, Bowl Ban

Even considering the fact that Sandusky was convicted of numerous crimes in June 2012, there is no evidence to support that he was anything but a positive role model for the student athletes under his tutelage when he coached at PSU and in the years leading up to the criminal charges against him.  In fact, much of Pennsylvania and former President Bush recognized Sandusky for his volunteer efforts making a difference in the community at-large.  

In addition, there is no evidence to support that Joe Paterno was anything but a positive role model for the student athletes he coached.  Even more, Paterno embodied the values which the NCAA alleges is at its core -- the education and well being of student athletes.  

PSU's stellar graduation rates for the football team and its student athletes overall, as well as the fact that the University has never had a major NCAA violation, was proof that the institution was doing things the right way and had been doing so for a long time.

In January 2011, NCAA President Mark Emmert presented the Gerald R. Ford Award to Paterno at the NCAA Convention. The award honors an individual who has provided significant leadership as an advocate for intercollegiate athletics on a continuous basis throughout his or her career. "For me, Coach Paterno is the definitive role model of what it means to be a college coach," said Emmert.

Mitchell's monitoring: an act of fraud?
The idea that PSU would need an Athletics Integrity Agreement was ridiculous in 2012 and it's just as ridiculous today.  Moreover, the NCAA's hiring of George Mitchell to monitor PSU's progress was nothing more than an act of fraud.  

Apparently the NCAA hired Mitchell because of his former work in the Major League Baseball steroid scandal. Mitchell's report was not without controversy, specifically with regard to conflicts of interest.

It should come as no surprise to Penn Staters that Mitchell had nothing to say about the PSU BOT's revised conflict of interest policy (which permits conflicts of interest) and that he failed to highlight Board lies about completing all 119 Freeh Report recommendations.  In fact, the first recommendation from the Freeh Report, 1.1 Culture, is not only incomplete, but doesn't pass the "giggle test" in terms of current governance at PSU.  The current majority of the board has no accountability and its recent decisions have been anything but ethical or values-based.

However, according to former Senator Mitchell, the "culture" that put football above values of human decency made such progress in one year that the scholarships were partially restored.  And in just two years, the alleged "culture problem" was apparently resolved because all of the scholarships were restored and the bowl ban was lifted.

The only penalties still remaining against PSU are vacating the football program's wins from 1998 through 2011 (which was really a penalty against Paterno, not the school) and the $60 million fine (which wasn't justified according to the Sandusky crimes timeline).

Competitive Advantage - Vacation of Wins

As the July 14 and 15, 2012 emails revealed, Julie Roe (Lach), Kevin Lennon, and Wally Renfro all appeared to agree that even if PSU was guilty of not reporting Sandusky's crimes, the University did not gain a competitive advantage.  Roe pointed to PSU's 2012 recruiting class as evidence that the current scandal didn't have an impact on recruiting.

When it came time to write the press release about the eventual PSU sanctions, Roe was singing a very different, factually deficient, tune.

First, the idea that wins were based on a pristine image is quite a stretch. Apparently, the University of Toledo didn't get the message in 2000 when they beat PSU by a score of 24-6.  In fact, the Toledo score -- among 37 others -- makes up the corroborating evidence that Roe was full of crap.

The 1998 recruiting class was in place when PSU first reported Sandusky to authorities.  Authorities cleared Sandusky, therefore there was no possibility of bad publicity given the confidential nature of child abuse investigations.  However, let's go with Roe's illogical thesis and verify the "great success on the field" gained by "competitive advantage" (as a result of child welfare officials clearing Sandusky in 1998).

The 1999 recruiting class had a four year record of 29-20 (59.2%).

In March 2001, PSU officials similarly reported Sandusky's conduct to a licensed child care professional from The Second Mile, Dr. Jack Raykovitz.  After he consulted with other TSM Board members, they determined Sandusky's showering with children was a "non-starter."

The 2002 recruiting class had a four year record of 27-21 (59.2%)

Roe's contention that PSU had great success isn't even backed up by the football program's on-field performance.  The combined record for the years in question was 47-37 or 56.9%.  

Since the NCAA purports to be an organization that promotes education, it should know that 56.9% was a solid "F" (but better than the graduation rates for student athletes at LSU when Emmert was chancellor there).  

PSU was far from enjoying "great success" in the years following the Sandusky incidents on campus and a simple check of the record books would have proven that.

The lack of due diligence and outright lying by the NCAA in this case was simply breathtaking.

$60 Million Fine to Support Child Welfare Programs

While many point to this fine as one of the few positive things resulting from the NCAA's actions in the case, there is no evidence to justify why PSU should pay this penalty.

McQueary's testimony about the 2001 incident
didn't convince a jury that a rape occurred.
The Sandusky trial resulted in guilty charges in 45 of 48 counts. The most incendiary charge, which undoubtedly put the focus on PSU, was that McQueary witnessed a boy being "subjected to anal intercourse by a naked Sandusky."  As the trial verdicts proved, there was insufficient evidence to support that charge. 

All of the not guilty verdicts at the trial appeared to be related to charges that were trumped up by the prosecutors.  It's not a coincidence that those allegations were about incidents on the PSU campus, given that the OAG was trying to build a case against Spanier.

Taking a page from Sara Ganim,  the trial verdicts confirmed Sandusky did not anally rape anyone on PSU's campus.  In addition, they revealed that no crimes occurred on PSU's campus after 2001 and that no crimes occurred for a period of years after PSU officials intervened. 

These facts contradict the NCAA Consent Decree statement (lifted from the Freeh Report) that PSU officials "failed to protect against a child predator harming children for over a decade."   PSU's intervention appeared to offer protection for a few years -- before Sandusky offended again.  The facts also show that PSU's intervention in 2001 was more effective than that of Pennsylvania's child welfare caseworkers in 1998.

According to Ken Singer of Male Survivor.

"I've worked with offenders who have recidivated after a number of years," Singer said. "It's not that the desires or the impulses are not there but the degree of control, which could be anything from a spouse keeping a good watch on him that keeps him from acting on impulse, it could be disgust with self and promises not to do this again, but then they hit a situation where they go back to other behavior." 

Singer compared offender behavior to that of an alcoholic. 

"It's similar to an alcoholic that has been drinking for years then stops because of internal conditions, he's sick of drinking or whatever, finds sobriety, goes to AA, doesn't drink again for a number of years but then falls off the wagon and resumes his former lifestyle," Singer said. 

Louis Freeh's press conference remarks that "the rapes of those boys occurred in the Lasch building" and that Sandusky's misconduct continued on campus through 2011 were also false, based on the trial verdicts.  Freeh's report was an abject failure in educating the public about offenders like Sandusky and that failure was perpetuated by opinions held and remarks made by NCAA officials.

NCAA officials, including the Executive Committee and the Division I, II, and III Boards, appeared to react to media soundbites and didn't seem to be the least bit aware of the Sandusky trial verdicts or that the PSU officials charged had yet to have their day in court. 

David Berst (in his deposition at 137) was quite surprised that University Presidents on the Executive Committee had such strong opinions on the case.

"Well, I think what I was thinking at the time was that I have, you know, processed about 2,000 infractions cases in serious matters, and there are lots of sides to every issue.  And it seemed interesting to me that there was such interest in heading in that  direction or framing their comments in that manner without reviewing all of the information that was available.   I don't know whether they had read the Freeh Report at that point or just were reacting to some of the details.  But the  reactions were surprising to me." 

 It surely seemed that NCAA public relations chief, Bob Williams, based his opinions on Freeh's press conference remarks -- not on the facts of the case.

However, what is truly hypocritical about the NCAA's punishment of the $60 million fine and blaming PSU for Sandusky's abuse is that Mark Emmert stated in November 2011 that he would never blame this type of problem on athletics and (rightly) viewed it as a societal issue.

What happened in the eight months from Emmert's assertion that he would never blame athletics to the Consent Decree, which fully laid the Sandusky crimes on "King Football?"

Suppressed Evidence Undermines Consent Decree

Emmert & Nifong ignored exculpatory evidence to
press flimsy cases at PSU and Duke, respectively
To make an analogy, Mark Emmert behaved much like DA Mike Nifong in the Duke case. Like Nifong, Emmert had "DNA evidence" proving the accused were innocent, but persisted in pursuing the case because of the positive publicity it would generate for the NCAA.

According to documentary evidence in the case, the NCAA learned that PSU Athletic Department's compliance staff was "fastidious on rules violations."  In other words, the very thing needed to make a case for LOIC was missing.

But that's not all that was missing. 

Erickson:  Complicit in the cover up of
 information about the 2001 incident
In January 2012, PSU President Rod Erickson was informed that Mike McQueary gave a "benign description" of the shower incident when he reported it in 2001.  The documents go on to state that McQueary, when interviewed by "detectives - 10 years later" provided a "more vivid (description) than before."
The Freeh Report didn't contain this information, even though Freeh stated all witnesses, with a few exceptions, were cooperative.

 It appears that some witnesses - top PSU officials, like Erickson - withheld evidence from Freeh (or Freeh colluded by not including that evidence).

Whatever the case, the so-called "contract" known as the NCAA Consent Decree was entered into under the false pretense that the Freeh Report justified "fashioning an appropriate remedy for the violations."  


There is not smoking gun evidence that PSU shared (exculpatory) evidence about PSU officials' lack of knowledge of the 2001 incident details with the NCAA.  However, the evidence to date is stacking up to show that PSU kept the NCAA informed of developments surrounding the OAG investigation of Spanier, Curley, and Schultz.

In November 2011, Mark Emmert stated that the NCAA's practice was to wait for criminal investigations to conclude before conducting an inquiry.  In the PSU case, the NCAA was involved, at least tangentially, with an ongoing criminal investigation.

Then Emmert contradicted himself by moving to penalize PSU before the criminal cases of Curley, Schultz, and Spanier had concluded.  Emmert (and the media) prematurely concluded the men were guilty based on the outcome of a "privatized justice system"  run by former FBI director Louis Freeh.  By doing so, the NCAA violated its own process, and worse yet, its harsh penalties and over-the-top rhetoric defied its own core values of organization

In closing, the NCAA not only endangered the safety of student athletes on the PSU football team who were now put at a competitive disadvantage, but it demeaned an institution that had always been the role model for combining athletic and academic excellence.

For those reasons, Mark Emmert needs to go and the NCAA needs to go with him.


  1. Well done.

    Freeh's recommendation 1.1. says Penn State must "promote an environment of increased transparency into the management of the University."

    Freeh's recommendation 1.6 says "Emphasize and practice openness and transparency at all levels and within all areas of the University."

    Freeh's 3.2 recommendation says "Review, develop and adopt an ethics/conflict of interest policy for the Board that includes guidelines for conflict management and a commitment to transparency regarding significant issues."

    I don't see how Mitchell can fail to recognize that Penn State's is making no progress in the area of transparency when it refuses to release the documents used to create the Freeh Report and fights subpoenas and Freedom of Information Act requests for Sandusky scandal documents.

    Penn State should get a fail for the three recommendations asking for transparency.

    1. Agree. Mitchell is as much a fraud as Louis Freeh was/is.

  2. There has been much debate regarding the extent to which the investigation of PSU's alleged "conspiracy of silence" has been "analysis-based" or "agenda-based." The following link, which is about UVA rape allegations, highlights some of the same key points repeated made on this site about the insidious nature of the "agenda-based" approach adapted by BOT/Freeh's regarding the “culture” at Penn State .

    As confirmed by Ken Frazier, the situation was never really whether or not a cover-up of Sandusky occurred within PSU leadership, but rather how the situation could be/should be leveraged by the BOT.

    1. Doug,
      Excellent point.

      The Erickson deposition shows that PSU was going to respond to the NCAA's original letter of November 17, 2011....but then was given a cease and desist order by the SITF (Frazier) to wait for their (Freeh's) investigation to conclude.

      As I have written previously, Frazier and Tomalis were the key influencers/authors of the Freeh Report. Frazier's comments in the wake of the report -- that blamed Paterno, Spanier, Curley, and Schultz -- were undoubtedly an outcome that he (and the BOT inner circle) wanted.

  3. When I heard about the UVA gang rape hoax story, it reminded me of Mike McQueary because both had years-delayed reports of rapes that never actually occurred. In both cases the media swallowed them hook, line and sinker despite numerous inconsistencies.

    CNN plays both sides. The link you provided questions whether victims of sexual assault always tell the truth.

    Yet in Sara Ganim's latest CNN piece, she never questions the veracity of Sandusky victim X, despite his being an atypical victim since he wasn't from Second Mile, was 17 at the time of the alleged assaults, was not groomed and he's now in prison. There's also never been any lawsuit filed, which suggests that he can't even find a lawyer who thinks he has a credible claim.

    1. Tim,
      Agree that this victim does not fit the profile.

      According to Ken Lanning, in high profile cases like Sandusky's, a few charlatans will come forward trying to benefit financially.

      As for Sara Ganim, I've yet to see her ever raise a question about someone's story -- even when she knew the person was lying to her (e.g., DPW's Jerry Lauro).