The NCAA has slithered away from the Corman/McCord lawsuit with its reputation somewhat intact due to a settlement that still has PSU paying fines and also making quarterly payments to flim-flam man, George Mitchell. Worst of all, there was no admission by the NCAA that it had overstepped. In fact, it was quite the opposite.
The NCAA took the words "good faith" (from the settlement) out of context to boast that it had authority to punish PSU in Sandusky matter, even though they (and Rod Erickson) knew there was no basis for penalties.
Statements by Erickson, Gene Marsh, Emmert, and other NCAA officials that the Freeh Report provided the basis to punish Penn State were absolute hogwash. We all now know that the head of the Executive Committee (EC), Ed Ray, never read the report nor did he recall the EC's early favoring of the death penalty. Statements by the NCAA's PR Exec Bob Williams and Mark Emmert also proved that both men were clueless about the contents of the Freeh Report.
So, the million dollar question is: Was Erickson bluffed by Emmert's statements that the Freeh Report showed the worst case of lack of institutional control he had ever seen and that the EC's reaction to it was that they wanted blood?
Absolutely, unequivocally, no.
While the email of Julie Roe (Lach) mentioned that "our approach to PSU as a bluff when talking to Mark," it was clear she wasn't among the cabal at the NCAA who was collaborating with Erickson and company. To make an analogy, she was the NCAA's equivalent of former PSU BOT member Ann Riley in terms of influence. Roe (Lach) would eventually be fired over the Miami (Fla) investigation. According to Gene Marsh, he had expected to be dealing with Roe (Lach), but stated this was "a whole different critter" when he found himself negotiating with the top brass of the NCAA (Remy and Berst).
In an interesting aside, Marsh was hired late and had a track record of failures at his two negotiations with the NCAA (on behalf Ohio State and Alabama). According to Frank Guadagnino's deposition (p. 14), Marsh reached out to PSU at the urging of none other than Cynthia Baldwin. Previously, Marsh wrote that he believed the NCAA "should leave this one alone." Later, he would advise PSU to not risk an investigation by the Committee on Infractions.
Are you smelling something rotten?
|Erickson: Documents confirm he knew |
the NCAA didn't hold any cards.
But that didn't stop Erickson and Emmert from striking a "bad faith" agreement.
An Act of Bad FaithAnalysis of the Freeh Report, email evidence, court depositions, and other evidence paints a picture of collusion between top officials at PSU and the NCAA in railroading Paterno and the University at large. In addition, the evidence shows that Freeh, Sporkin, and Sullivan (FSS) used its engagement letter as the investigation plan and the Office of Attorney General's Sandusky grand jury presentment as the report template for convicting PSU officials in the court of public opinion.
In summary, it was an "act of bad faith" by all involved. And they did it for a variety of self-serving reasons.
The PSU Board of Trustees (BOT) needed a replacement narrative to justify the firings of Paterno and Spanier. It ensured the Freeh Report would do so by specifying the expected contents in the engagement letter with FSS. There are other reasons for the BOT's inner circle's scapegoating of Curley, Schultz, Paterno, and Spanier, but for the sake of simplicity, the focus will stay on justifying the firings.
Louis Freeh, who was hired with the encouragement of Governor Tom Corbett, conducted his investigation as not to undermine the Sandusky prosecution and (likely) to assist the OAG in finding more evidence against Spanier. In doing so, the investigation ignored exculpatory evidence that would have undermined the stories of the janitors and possibly Mike McQueary.
The investigation and report also whitewashed the failures of The Second Mile and the failures of Pennsylvania's child protection system The latter fact "benefited" Governor Tom Corbett and the PA government -- who would have been embarrassed if the public learned of the colossal failures of the child protection system (and police) in the Sandusky case. The failures of The Second Mile also may have exposed the OAG's lax oversight of charities. In both cases, the state could have suffered financial loss if it had been found negligent and likely forced to establish a victim's fund.
Centre County Children and Youth Services also benefited because it may have faced lawsuits over its shameful performance in the Sandusky case -- had it been exposed by either the OAG or Freeh.
|Freeh didn't work for free. |
The NCAA got what it paid
for in the Freeh Report.
The NCAA obviously didn't know the first rule of "Freehdom" -- Louis Freeh doesn't work for free. You pay your money -- you get your results. NCAA got what it paid for -- a report that didn't mention a single NCAA violation.
Conversely, the PSU BOT's payment of $6.5 million ensured that the investigation would go exactly as the SITF directed. The $6.5 (and eventually $8.1 million) also likely was enough to get Freeh's and his team lie about many things related to the case.
The confirming evidence follows.
Breaking Down the Freeh InvestigationThe timeline constructed from the end notes of the Freeh Report correlates quite well with the timeline previously constructed from Right-To-Know emails. Both timelines show that significant updates to the Freeh Report occurred as the PA OAG was forced to utilize (release) evidence already in its possession. The other significant update to the Freeh Report occurred after the Sandusky trial and the not guilty verdict related to the incident reported by McQueary.
It is highly probable that PSU provided Freeh with the relevant emails and the Schultz file early in his investigation, but Freeh had to wait for the approval of the OAG to utilize them. Governor Corbett stated Freeh was selected because he would not interfere with the ongoing prosecutions or investigations. That, of course, would include getting clearance to use certain evidence.
Timeline of the SITF's (Freeh) InvestigationThe Right-To-Know emails obtained by PSU alumni Ryan Bagwell and Bill Cluck do not include any mention of a "BOT briefing call" for Freeh to brief the trustees about his investigation plan. He didn't need to because the engagement letter set forth the outcomes of the investigation, which were to FIND: 1) the reporting failures that occurred; 2) the causes of the failures; 3) who had knowledge of the sexual abuse allegations; and 4) how the allegations were handled by the BOT.
The timeline of Freeh's investigation reveals he followed the SITF's instructions perfectly, with little diversion of its attention to the NCAA's guidance.
Engagement 1. Find reporting failures (focused on Paterno and 2001 incident)
November: The 2001 IncidentFreeh began his investigation on November 23rd with an interview of Cynthia Baldwin regarding her discussion with former Senior VP of Business and Finance, Gary Schultz, about his grand jury subpoena. On the 28th, FSS continued interviewing Baldwin about the 2001 incident.
December: Joe Paterno/PSU FootballIn December, the end notes reveal that the investigation's focus had shifted to Joe Paterno and the football program. FSS interviewed members of the Athletic Department (AD) and football staff about Sandusky working out in the facilities (Dec 5, 7, 11); Paterno's knowledge of "everything that was going on" (Dec 6, 19); Paterno's (lack of) involvement in sports camps (Dec 19); and compliance with NCAA rules (Dec 19). The Freeh team also met with an official from the Office of Student Affairs to discuss disciplinary matters pertaining to football players (Dec 12).
Engagement 2. Find causes of the failures (focused on access to facilities)
Engagement 3. Who had knowledge of abuse allegations (focused on police,1998 incident)
January: Sandusky's Retirement benefits, the Clery Act, and 1998After being briefed by the NCAA in early January, the Freeh team met with a PSU AD official on January 10th, but didn't find any evidence of lax protocols or violations. The FSS team then moved off the subject of NCAA violations and began investigating Sandusky's retirement benefits (Jan 12), conducted interviews with police about the Clery Act (Jan 13) and Sandusky's access to Beaver Stadium (Jan 25). On January 27th, FSS interviewed a former University Park police officer (likely Detective Ronald Schreffler) regarding the 1998 incident.
In January, the NCAA was informed that PSU's AD compliance staff was "fastidious about rules violations." The NCAA responded that it would "wait for Freeh Report."
SIGNIFICANCE: In January 2012, the NCAA and PSU knew the athletic department was compliant with NCAA rules and Freeh's investigation found nothing of note in its investigation from that point forward.
February: Clery Act,Sandusky Retirement, 1998In February, FSS continued work on the Clery Act, interviewing former police chief Steven Shelow on the 1st. The next day (Feb 2) they questioned Office of Human Resources (OHR) officials about reporting of incidents and about Sandusky's retirement. While questioning OHR, the investigators also inquired about the 1998 incident and Curley's background. The investigation looked into Sandusky's access privileges to the Beaver Stadium luxury suites on February 8th. On February 22nd, a retired dean was questioned about Sandusky's emeritus status, while OHR was likely questioned about background checks.
Engagement 4: How allegations were handled by the BOT (focus on Spanier's leadership).
March: BOT Knowledge of Sandusky, PSU CultureOn the last day of February (Feb 29) and through March, the investigation conducted numerous interviews with members of the BOT about how the Board was informed of the Sandusky investigation and about Spanier's leadership. On March 22, the FSS team received a letter from The Second Mile's attorney explaining its knowledge of the 2001 incident. In the letter, the charity's attorney informed FSS that Curley had told the charity to "avoid publicity issues." To be clear, the Freeh Report's lone piece of evidence about PSU avoiding bad publicity (p. 78) was based on double hearsay.
|Triponey: Reached out to Emmert|
to assist in "Penn State mess."
At this point, the report draft was likely a repackaging of the grand jury report with embellishments about Sandusky's access and a few additional areas, like University governance, compliance with the Clery Act and other policies mixed in. That's when the first bump in the (rail)road occurred.
The Perjury Particulars Bump in the (Rail)Road
In response to a request for perjury particulars by the attorneys for Curley and Schultz, the OAG was forced to utilize the Penn State emails (that had been turned over to the PA State Police in July 2011) to support the Commonwealth's response. The significance of using the emails was two-fold: first, it allowed Freeh to use them in his report; and second, the emails more fully exposed the role of DPW in the 1998 investigation.
April: Revisiting 1998 and Continued BOT Interviews.Up until the release of the emails, Freeh had relied on the University Park police report and an interview (January 27) of a former police officer (likely Schreffler) to recount the incident. The OAG's release of email evidence essentially forced FSS to revisit the 1998 incident. The Freeh team performed interviews with DPW program representative Jerry Lauro (Apr 26) and with a Centre County CYS representative (also Apr 26).
|The BOT threw Spanier under the bus.|
In summary, the BOT members dubiously claimed they were in the dark on the Sandusky matter and blamed Spanier for a lack of transparency and for not being inclusive as a leader.
May: Investigation Wraps UpAccording the end notes, only a few interviews were conducted on May 9 and 16 to answer lingering questions about the firing of Paterno. On May 5, Frazier sent an email to Louis Freeh which confirmed the investigation was wrapping up. An excerpt from the email follows.
Sent from my iPhone
On May 5, 2012, at 9:52 AM, "Frazier, Kenneth C." <ken firstname.lastname@example.org> wrote:
I would recommend waiting a few days to see if Wick calls. If he doesn't, I'd call him
saying that I suggested that you reach out to him based on my conversation with
McGinn. I would also let him know ( as I told McGinn) that you guys are wrapping upthe investigative phase. If they have something to say they should speak up now.
The Schultz File Bump in The (Rail)road
According to the Freeh Report, FSS had twice interviewed Kimberly Belcher (Jan 12 and Apr 12), who denied possessing the Schultz file. Later that month, in response to a grand jury subpoena, Belcher testified that she turned over a copy of the file to the OAG in April 2012. She also testified that Schultz provided the originals of the file to the OAG one day earlier. The Freeh Report lists the date of the Schultz file as 5-1-2012, confirming it was obtained after Belcher and Schultz had turned their files over to law enforcement.
Note: OAG officials concealed the existence of the emails and the Schultz file from the public until the emails were leaked in June. In May, the OAG changed the date of the McQueary incident from March 1, 2002 to February 9, 2001, however they did not say how the new date was determined.
The information from the Schultz file very likely caused the Freeh Report to be significantly edited to include details from the notes and emails regarding 1998 and 2001 incidents. However it is also very likely that there was considerable debate on the risk-reward of using the handwritten notes of Schultz. The notes from 1998 contained damaging information about CYS and DPW being told of many signs of child sexual abuse. Emails reveal that on May 20th, Frazier, Tomalis, Freeh, and McNeil likely planned to discuss the updates to the Freeh Report and the (selective) use of information from Schultz's file.
The "you dun good" statement by Tomalis was a reference to Frazier lying to the Board about Freeh's investigation being very active and continuing into the fall. The email between Frazier and Tomalis on May 4th showed that Frazier had lied because he expected the information to be leaked.
At the end of May, the final draft of the Freeh Report was ready, but all involved likely knew that it was light on facts. It was very likely that the group began its public relations/smear strategy to cover for the deficiencies in the report.
June: Minimal investigation activity -- smearing beginsLittle investigative activity took place in June 2012. The end notes show the investigation circled back with a former finance officer on June 12th (likely Al Horvath) to obtain background information about VP Schultz.
Evidence indicates that the efforts of the SITF and Freeh focused on making the public believe that honorable men like Joe Paterno and Graham Spanier had more concern for the well-being of a pedophile than the well-being of children. They did that through leaking emails to the press.
On or about June 11th, existence of the emails was leaked to NBC news. NBC cited "law enforcement" and "legal sources" (either of which could have been a loose reference to a Freeh team member) in its report. NBC's report cited just the word "humane" from the emails -- taking it out of context. NBC's report was picked up by most papers, including the Philadelphia Inquirer, who reported that Paterno was involved in the email exchange. The Inky's report appeared to be welcomed by SITF co-chair Ron Tomalis, who forwarded it to the Core Group of Frazier, Freeh, and McNeil.
The original reporting on the emails didn't gain traction initially because the Sandusky trial took center stage. Interestingly, the trial had one very unexpected - and mostly unreported - result.
Last Bump in the (Rail)Road - Not Guilty, Count 7
Had the Sandusky trial gone according to plan, little changes would have been required to the draft of the Freeh Report. However, the failure of a jury to believe McQueary's testimony about witnessing a rape likely blew a major hole in the Freeh Report's ability to condemn Paterno's actions in 2001. The result was that Freeh retreated to using a non-specific passage in an email (of dubious provenance) to "reasonably conclude" that Paterno was solely responsible for stopping the report of the 2001 incident. Freeh also played up the janitor incident and Sandusky's access to facilities, the latter claimed to be under the purview of Paterno, to condemn the football culture.
The media, who hadn't been paying attention to the details of the Sandusky case from the outset, persisted with the theme that football - and by extension, Paterno - was the reason Sandusky could commit crimes for so long. A column written by Howard Bryant was embraced by Ken Frazier and likely others at PSU who had been looking to justify the firing of Paterno.
Before the month of June ended, the media returned to the story of the emails -- only with more details being released about their content. Public opinion was turning against Paterno and Spanier, just as the SITF intended.
July: Last minute interviews, and finalizing the reportAlthough Graham Spanier and his legal team had requested meeting with Freeh's team since the outset of the investigation, it didn' take place until July 6th -- about one week before the report was published. While FSS incorporated some of Spanier's information into the chapters on 1998 (Ch. 2), 2001 (Ch. 4), and the BOT (Ch. 5), it is important to note that the investigators re-interviewed Cynthia Baldwin on July 9th. The purpose of the interview was to rebut Spanier's statement that he didn't have knowledge of the 1998 incident.
|Freeh Report missed badly on the|
testimony of janitor, Buck Petrosky
EVIDENCE: Pages 65 and 66 of the Freeh Report purport to be Petrosky's testimony at the trial, but there are at least eleven statements included on those pages that were not part of his testimony. In conclusion, it is almost certain that Freeh used the grand jury report to fill in the information and fabricated the quotes.
Note: The Freeh Report also attributed direct quotes from Mike McQueary (p.67), who was not interviewed, to an interview on March 1, 2012.
CONCLUSION: No NCAA Violations, No LOICThe Freeh investigation ended without finding any more evidence of NCAA violations than it had in January. In short, the NCAA had nothing to hang its hat (or cattle) on. The only NCAA related finding in the Freeh Report was an unsupported assertion that PSU's NCAA compliance staff was understaffed.
Both parties knew (from substantive updates during the investigation) that the Freeh Report would not include information to justify the NCAA penalizing PSU. Instead, a media campaign would be used to prop up the Freeh Report.
PSU's PR Campaign "Justified" NCAA SanctionsThe inner circle had been working on the public lynching of Paterno, Spanier, and the football program all along. As noted in a previous post, the outline for the NCAA Consent Decree (CD) was consistent with the key points of Erickson's five point promise.
The CD was not a cram down...
..it was the BOT inner circle handing a gun to the NCAA for the execution of the legacy of Paterno and to give PSU football the virtual death penalty (via the athlete transfer option). The NCAA, who had a reputation as a weak enforcer, had no qualms about playing the heavy. As part of the deal, the NCAA agreed to mention the death penalty threat and give Peetz and Erickson a pat on the back for cleaning up PSU when gave its press release on the CD.
|Freeh: made many false |
statements during presser
No one in the media fact checked or disputed any of Freeh's statements.
Here is a sampling of false statements made by Freeh at his presser:
20:40- “the evidence clearly shows, in our view, an active agreement to conceal”
22:20 -”the rapes of these boys occurred in the Lasch Building”
26:20 – “the reasonable conclusion that we make is that all four individuals, that I’ve mentioned including Mr. Paterno made a decision – made a decision to actively conceal knowledge in the events of February 2001. I can’t parse between them, degrees of responsibility - what’s significant and shocking is that the four of them, the four most powerful people at Penn State University made a decision to conceal this information.”
30:08 – “Well we know when Mr. Curley speaks to the Second Mile he uses the same word, that they were worried about Sandusky showering with a boy because of bad publicity. So this
notion of bad publicity, which is really disclosure, opening, and reporting, is a pervasive concern and fear by those running the university.”
30:55 - “There’s several e-mails – contemporaneous e-mails – in 1998, which we found by the
way, which shows he’s (Paterno) clearly following the case. He’s clearly following the 1998
33:08 - “The janitors, that’s the tone on the bottom. Ok. These are the employees of Penn
Stare who clean the locker rooms in the Lasch building where young boys are being raped. They witness, what is probably, in the report, the most horrific rape, that’s described.”
36:20 – “He (Paterno) as someone once said, made perhaps the worst mistake of his life. We’re not singling him out. We’re putting him in a category of four other people who are the four
major leaders of Penn State….He was an integral part of the active decision to conceal.”
The press ran with those soundbites and they became a substitute for the lack of evidence in the Freeh Report.
PSU and the NCAA Respond to Freeh Press Conference
The NCAA's response to the Freeh report was originally very cautious, stating that it would carefully review it and were awaiting PSU's response to the four questions in its November 17 letter to Erickson.
According to the
deposition of Frank Guadagnino (pages 18 and 19), a small group including Ken
Frazier, Karen Peetz, Rod Erickson, Guadagnino, Tom Poole, and Richard Edelman
met to review the Freeh Report and craft PSU's response. The cabal who would go on to inflict more damage on PSU than Sandusky, gave the
University the death blow.
Ken Frazier praised
the Freeh Report for "following the facts" and for being
"thorough and comprehensive." Frazier also emphatically condemned
Paterno, Spanier, Curley, and Schultz for their alleged failures.
Peetz piled on, stating Paterno's 61 years of service were
"marred." Erickson's pledge to implement all of the
recommendations in the Freeh Report (just as he said he would in his November
2011 five point promise), left little doubt that PSU had totally accepted the
In the public's eyes, PSU's press conference confirmed
the Freeh Report. Dissenting views were given no credence by the
PSU administration or the media.
Two days after the
press conference, Frazier emailed Peetz to suggest disbanding the SITF. It's
mission was accomplished -- it had justified the firings of Paterno and Spanier
by propping up the Freeh Report.
PSU and the NCAA Respond to Freeh Press Conference
According to the deposition of Frank Guadagnino (pages 18 and 19), a small group including Ken Frazier, Karen Peetz, Rod Erickson, Guadagnino, Tom Poole, and Richard Edelman met to review the Freeh Report and craft PSU's response. The cabal who would go on to inflict more damage on PSU than Sandusky, gave the University the death blow.
Ken Frazier praised the Freeh Report for "following the facts" and for being "thorough and comprehensive." Frazier also emphatically condemned Paterno, Spanier, Curley, and Schultz for their alleged failures. Peetz piled on, stating Paterno's 61 years of service were "marred." Erickson's pledge to implement all of the recommendations in the Freeh Report (just as he said he would in his November 2011 five point promise), left little doubt that PSU had totally accepted the Freeh Report.
In the public's eyes, PSU's press conference confirmed the Freeh Report. Dissenting views were given no credence by the PSU administration or the media.
Two days after the press conference, Frazier emailed Peetz to suggest disbanding the SITF. It's mission was accomplished -- it had justified the firings of Paterno and Spanier by propping up the Freeh Report.
"Like everyone else, we are reviewing the final report for the first time today. As President Emmert wrote in his November 17th letter to Penn State President Rodney Erickson and reiterated this week, the university has four key questions, concerning compliance with institutional control and ethics policies, to which it now needs to respond. Penn State's response to the letter will inform our next steps, including whether or not to take further action. We expect Penn State's continued cooperation in our examination of these issues."
PSU Substitutes Freeh Report & Pleads Guilty to LOICIn November 2011, then PSU General Counsel Cynthia Baldwin was drafting a response to the aforementioned letter, but was told to stand down by the SITF. Erickson and Baldwin were told that the response should wait for the outcome of its (Freeh's) investigation.
The deposition of Rod Erickson revealed that after the release of the Freeh Report, it expected to respond to the NCAA's four questions by early August 2012. On July 17, 2012, Erickson made a statement that PSU was crafting a response to the four questions and then would "negotiate what would be appropriate sanctions."
Erickson was lying about those two things (and likely many others).
An email dated July 18th from Gene Marsh indicated that penalties were already proposed by the NCAA as early as July 16th or 17th. According to NCAA Counsel Don Remy, Erickson told the NCAA that PSU had accepted the Freeh Report and that the report contained evidence of a LOIC.
Erickson's deposition confirmed Remy's position that it was the former PSU President who determined the Freeh Report constituted a LOIC. Under questioning, Erickson stated he was familiar with the concept of a LOIC from reading sports pages and that PSU was in violation. He then spun the story to state that it was the NCAA (Emmert) concluding it was the worst case of a lack of institutional control and that the University presidents "wanted blood."
Contrary to the statements of PSU and Erickson, they were not bluffed and the NCAA wasn't holding any cards.
Ed Ray's deposition and emails indicated that the talk about the NCAA EC favoring the death penalty was not true. As Ray said, "if you told me the vote was 19-2 against, I wouldn't have been surprised."
The truth as that the PSU BOT Executive Committee pushed the NCAA to play up the death penalty scenario and also asked the NCAA to give them props for improving governance and removing the former leadership.
The excerpt below is from an email exchange between Don Remy and Ed Ray, in which Remy explained how PSU asked the NCAA to play up the death penalty and its improvements in governance.
The CD came down hard on Paterno, Spanier, and the Athletic Program and caused irreparable harm to the University's reputation. By design of PSU, the CD penalties didn't inflict direct financial damage to PSU. Collateral damage would be another story.
PSU Athletics Pays The PriceEvidence uncovered during my investigation revealed that Erickson was quite well versed in the financial affairs of both the University and the Milton Hershey Medical Center. While he was a puppet of the inner circle, he was no dummy when it came to finances and the penalties bear that out.
|PSU Athletics will bear the financial burden|
of the scandal for the next 35 years.
The litigation expenses for University officials (Curley, Schultz, Spanier, and Baldwin) are covered through directors and officers (D&O) liability insurance. Additionally, the Erickson mistakenly assumed that the payoffs to the Sandusky claimants would be covered by its insurance policies. The insurer pushed back, stating PSU's policies didn't cover abuse and molestation incidents. PSU sued and ironically, count 4 is "BAD FAITH." Talk about irony. Litigation in that case is expected to begin in March 2015.
In late 2012 through 2013, Erickson and the inner circle must have believed it got a pretty good deal for the money it paid Freeh.
It had blamed Paterno, Spanier, PSU Athletics, and the "football culture" for Sandusky's crimes, got the NCAA to gratuitously pile on, absolved themselves of any real responsibility or accountability, kept control of the University, feigned concern for child abuse victims, and won the support of the media and the public.
All for about $8 million.
Call it a railroading.
Call it a framing.
Call it what it was...an act of bad faith by the BOT inner circle and the NCAA.