Mark Emmert: Unfit to Lead

Evidence revealing the level of Mark Emmert's corruption and lack of integrity in the Penn State case are grounds for his removal.

By
Ray Blehar

Dr. Ed Ray Provided The Initial Tip 
That Someone (Everyone) Was Lying

Today is the third anniversary of Penn State University's (PSU) and the NCAA's unprecedented agreement to punish the PSU football program and athletic department without cause. 

The evidence in the case proves that conduct of NCAA President Mark Emmert was so unethical, dishonest, and, at times delusional, that he is not fit to be the President of the NCAA.

At the time of the signing of the NCAA Consent Decree, the only evidence that something was amiss was Dr. Ed Ray's interview that contradicted that the death penalty was threatened.

Today we know a lot more than we did then, including that both parties knew there was no evidence to justify punishing PSU athletics and that Mark Emmert decided unilaterally to interject the NCAA in the matter. 

Also, contrary to popular belief -- and Senator Corman's summary -- the agreement (formally titled "BINDING CONSENT DECREE IMPOSED BY THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION AND ACCEPTED BY PENN STATE UNIVERSITY) was the result of an eight-month collaboration between the top leaders of the two organizations.   Those leaders used the opportunity provided by the Sandusky case as a means to rehabilitate their public images.

Emmert actions reflected his desire to change the NCAA's reputation as a weak enforcer who harshly penalized lesser NCAA members, while giving wrist slaps to big time athletics programs.  It was also true that the top leadership of PSU was under fire for its botching of the Sandusky matter and its rash decisions to remove former PSU President Graham Spanier and legendary coach, Joe Paterno.  They too desired to boost their reputations.

Their hyperbolic public relations strategy was to accuse former PSU officials of a lack of integrity and ethics, while putting themselves on the moral high ground and portraying themselves as reformers of PSU's governance and culture, respectively.

The irony in this case is overwhelming, as it was the top leaders of the NCAA and PSU - not Spanier, Paterno, Tim Curley, and Gary Schultz -- that displayed a lack of integrity and ethics. 

SUMMARY OF EVIDENCE

The evidence in this case reveals that NCAA President Mark Emmert and/or members of his top leadership team:

1.  Knew, on November 9, 2011, that the Charter and By-Laws did not authorize the NCAA's intervention in the Sandusky matter;

2.  Knew, on or about November 10, 2011, that they had to work around the enforcement process to interject the NCAA into the Sandusky matter; 

3.  Knew, in December 2011, that the NCAA's role in the Freeh investigation went beyond monitoring.

4.  Knew, by January 31, 2012, that the Freeh investigation found no major violations.

5.  Knew, by July 15, 2012, that the Freeh Report did not contain evidence of NCAA violations;

6.  Sidestepped the NCAA's responsibility to determine if a lack of institutional control (LOIC) existed at PSU;

7.  Began negotiating, on or about July 16, 2012, with Erickson to determine the specific sanctions on the PSU athletics department.

8.  Finalized, on or about July 21, 2012, the sanctions against PSU athletics.

9.  Lied, on July 23, 2012, to Graham Spanier about not naming him in the Consent Decree and about assigning individual culpability.

DISCUSSION

1. The NCAA Had No Role In Sandusky Matter 

"There is nothing for us to do. I think it is a dead issue."

-- Tom Hosty, NCAA Enforcement Official

When Mark Emmert identified a number of rules in its November 17th letter to Penn State, he did so knowing that none of them applied to the Sandusky matter.  In addition, Emmert conveniently omitted the articles in The NCAA By-Laws and Charter that clearly showed it had no jurisdiction in the case.  To wit:

1.3.1 Basic Purpose. [*] The competitive athletics programs of member institutions are designed to be a vital part of the educational system. A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.

1.3.2 Obligations of Member Institutions. [*] Legislation governing the conduct of intercollegiate athletics programs of member institutions shall apply to basic athletics issues such as admissions, financial aid, eligibility and recruiting. Member institutions shall be obligated to apply and enforce this legislation, and the enforcement procedures of the Association shall be applied to an institution when it fails to fulfill this obligation.

19.01.1 Mission of NCAA Enforcement Program.  It shall be the mission of the NCAA enforcement program to eliminate violations of NCAA rules and impose appropriate penalties should violations occur. The program is committed to fairness of procedures and the timely and equitable resolution of infractions cases. The achievement of these objectives is essential to the conduct of a viable and effective enforcement program. Further, an important consideration in imposing penalties is to provide fairness to uninvolved student-athletes, coaches, administrators, competitors and other institutions." 

Article 32.6.3 Statute of Limitations imposes a four-year limit or statute of limitations on rules violations that can be adjudicated by the NCAA's enforcement arm.  

Ironically, in 2010, Mark Emmert proclaimed PSU football as exemplifying everything the NCAA stands for and called Paterno "the definitive role model of what it means to be a college coach."  Sandusky's crimes that surfaced one year later had no bearing on PSU's stellar record of combining athletics and academics, did not constitute NCAA violations, and occurred outside the statute of limitations for an enforcement action. 

Emmert's and the NCAA's dishonesty is confirmed by the email below, showing that they knew as early as November 9, 2011  that matters related to the Sandusky grand jury report were not applicable and outside of the statute of limitations. (Corman/Roe Lach, #1)

After the repeal of a number of sanctions in September 2014,  Emmert backpedaled on the process used to penalize PSU, sheepishly calling it an "experiment." 

2.  Emmert Knew The Sandusky Case Was Not An Enforcement Matter

"..use it to look at the athletic culture, but Mark wants more."

-- David Berst, NCAA Policy Expert

In a November 10th ESPN interview about the Sandusky scandal, Emmert stated  "that I would never say athletics was the cause of it." He further stated that "the NCAA would let the criminal justice process move forward and see what the facts say happened...then we'll do an inquiry to see what action should be determined." (Corman/Emmert #2)

The day after the interview, former PSU Vice President for Student Affairs, Vicky Triponey emailed Mark Emmert, sending him a "THANK YOU" for his comments on "the PSU situation." She also offered her assistance with "the Penn State mess" and stated she "knew too well what people were capable of doing when immersed in a toxic culture."  

That same day, former NCAA Vice President for Enforcement, David Price, emailed Julie Roe Lach to advise her to brainstorm ways to justify an enforcement action against Penn State that did not involve violations of NCAA rules. (Corman/Roe #2 shown below)

On November 15, 2011, Emmert invited the NCAA senior leadership team to a one hour meeting on November 16th to discuss "Penn State." (Corman/Berst #2)  


The following day, David Berst, an enforcement and policy expert for the NCAA, emailed a "heads up" to Big Ten Commissioner, Jim Delaney, stating he (Berst) "pushed back and have lost the argument so far" on an NCAA inquiry.  Berst informed Michigan State President Lou Anna Simon that an inquiry could be used "to look at the athletic culture, but Mark wants more." (Corman/Berst #4).

The NCAA's role in the matter was limited, but Emmert "wanted more."

On November 17, 2011, Emmert held a conference call with the Division-I Board of Directors (BoD) at 11:30 AM to discuss Penn State situation. At his deposition  (p. 73), Emmert didn't think he shared his subsequent letter to PSU with the BoD at that time.(Corman/Emmert #5) Later that day, or about 3:10 PM, the NCAA sent a so-called "notice of inquiry" to PSU.  

The email memorializing the notice stated  "The plan is to send to the Board tomorrow, after Mark and President Erikson (sic) have spoken."  (Corman/Berst #3)

Despite the expert opinions of David Berst and the enforcement staff that there were no applicable violations in the Sandusky case - and that all of the criminal acts occurred outside the statute of limitations, Mark Emmert unilaterally decided that the NCAA would get involved in the incident.  The evidence also shows that  the Division-I BoD did not approve the letter to PSU and was not provided a copy of it after it was sent.  

Emmert's actions depict an environment in which the President could act unilaterally and was accountable to no one.   

Again, the irony in this case is overwhelming.

3.  Emmert Knew the NCAA's Role Exceeded Monitoring The Freeh Investigation

"The University has undertaken a commendable process by commissioning the independent FSS investigation."

-- Quote from NCAA Consent Decree


On November 21st, the NCAA VP for Legal Affairs, Donald Remy, arranged a November 23rd teleconference for Emmert, VP for Enforcement Julie Roe Lach, and newly selected PSU President Rodney Erickson and other PSU officials to discuss the Sandusky matter (Corman/Erickson #1).  Emmert recalled that Erickson asked for more time to respond to the four questions because PSU was waiting for the Freeh investigation to determine the facts (Emmert deposition page 92). 

 Erickson confirmed that not long after the receipt of the NCAA's November 17th letter, he was instructed by the Special Investigations Task Force -- led by Kenneth Frazier and Ronald Tomalis -- to stand down on the response to the letter and wait for the Freeh investigation to complete (Erickson deposition, page 19).  

A half-hour conference call for November 29th between Emmert and Tomalis was arranged by the NCAA.  The call included the NCAA's (redacted) "Penn State talking points" which were compiled by Donald Remy (Corman/Emmert #8).   

Frazier, Freeh, and Tomalis all had
vested interests in the investigation

Emmert had no recollection of what was discussed with Tomalis at that meeting, but just two days later, on December 1st, the NCAA set up a meeting at the Nittany Lion Inn and invited representatives from Freeh, Sporkin, and Sullivan (FSS), the Big Ten, and the NCAA (Corman/Roe Lach #6).  The Big Ten's Jon Barrett was approved to participate in the investigation by Kenneth Frazier on December 4th.  According to Barrett, Frazier wanted to give the Big Ten and NCAA equal treatment  (Corman/McNeill #3).

On December 16th, then PSU General Counsel Cynthia Baldwin provided a draft letter to the NCAA asking for an extension of time and suggesting that the Freeh Report be used as PSU's response (Corman/Berst #4).  The NCAA and FSS had gotten cozy enough that Remy and McNeill collaborated on suggestions for Baldwin's draft (Corman/McNeill #4)

During late December, the NCAA provided FSS with a list of proposed questions/avenues of investigation. (Corman/McNeill #7)  and computer search terms (Corman/McNeill #9). 

On January 6th, 2012, the NCAA prepared materials and conducted a briefing highlighting NCAA rules and examples of lack of institutional controls to FSS (Corman/McNeill #10).

Even though the NCAA attempted to influence the Freeh investigation, their efforts were unsuccessful simply because they didn't understand that Louis Freeh doesn't work for free.  Had the NCAA paid Freeh to find NCAA violations, he would have found them -- or fabricated them.


4.  The NCAA Knew the Investigation Found No Major Violations

"Curley....fastidious on rules violations e.g. giving donations...
But NCAA waiting for Freeh Report"

-- Passage, dated January 31, 2012, from Rodney Erickson's notebook

The end notes of the Freeh Report indicate that FSS investigators completed their investigation of the PSU football program and the athletic department by the end of January 2012.  

According to the notes of former President Rodney Erickson, on or about January 31st, 2012, PSU informed the NCAA that the FSS investigation had found only minor violations of NCAA rules.  

Specifically, PSU informed the NCAA that PSU Athletic Director (AD) Timothy Curley and another AD official were "fastidious about rules violations."   The notes also indicate that despite being informed of PSU's compliance with rules, the NCAA was "waiting for Freeh Report."

The NCAA was told PSU athletics was "fastidious on rules violations," but remained confident that the Freeh investigation would find reasons to punish PSU athletics.

I would be remiss not to mention the lack of integrity of former President Rodney Erickson, who, despite this evidence, advised the PSU lawyers to move forward with a settlement with the NCAA because "they hold all the cards.  We hold none."

5.  Emmert Knew The Freeh Report Did Not Justify A Finding of a LOIC

"I don't believe Judge Freeh will take any position other than what is noted in the report."

-- Omar McNeill, responding to NCAA's request for a statement on LOIC

On July 12, 2012, Mark Emmert (Corman/Emmert # 16) requested that James Isch, Donald Remy, Kevin Lennon, Julie Roe (Lach) and Crissy Schluep begin an immediate review of the Freeh Report.  

By July 14th, NCAA officials understood the Freeh Report lacked the evidence to legitimately punish Penn State Athletics.  In an email (Corman/Roe #17), Julie Roe Lach wrote: "if we make this an enforcement issue, we...will lose the war when the COI has to rule."  In the same email, Roe referred to NCAA's enforcement action as a "bluff" and stated that Mark (Emmert) agreed with her assessment.





















Earlier that day, Kevin Lennon wrote to Roe Lach about the NCAA's "idea to bring Judge Freeh in" expressing concerns that it would raise questions regarding why the matter was not given to its enforcement staff.  As noted earlier, Emmert and others knew it would be impossible to carry out punishments against PSU in an enforcement action.






















The deposition of Omar McNeil stated (pages 116-117) that on July 17, 2012, Donald Remy referred a question from Mark Emmert asking "why we did not have any specific mention of institutional or lack of institutional control in the report."  On page 120, McNeil stated that Remy also asked if Judge Freeh would have a view on whether there was a lack of institutional control if asked.  McNeil answered, "I don't believe that Judge Freeh will take any position other than what is noted in the report."

In summary, the NCAA knew the Freeh Report was devoid of specific information that could be used in an enforcement action and attempted to reach out to FSS to get them to make an additional statement regarding a lack of institutional control.  


6.  Emmert Sidestepped the NCAA's responsibility to determine if a LOIC existed at PSU

Emmert and the NCAA Weaseled Out of
the Responsibility to Determine a LOIC

"Penn State determined that yes, there were violations of the NCAA By-Laws."  
"We didn't have to."

-- Donald Remy, NCAA Legal Counsel

After being rebuffed by FSS, former PSU President Rodney Erickson stepped up to the plate and offered his unqualified opinion that the Freeh Report constituted a LOIC.   

Emmert's decision to accept Erickson's opinion on the matter was clearly an unethical act and a dodge of the NCAA's responsibilities in the matter.   

The NCAA Division I manual, Articles 32.7.1.1 and 32.7.1.2 state an institution can conduct its own investigation, however the investigation must be reviewed by Committee on Infractions (COI).  The COI's review must determine that "a thorough investigation of possible violations of NCAA legislation has been conducted."  After that has been determined, the enforcement staff and the institution "shall submit a written report" of the "proposed findings of facts," a summary of the information on which the findings are based;" and "a stipulation that the "findings are violations of NCAA legislation."  After that has been completed, the institution and the enforcement staff propose appropriate penalties based on the violations. 

NCAA counsel Donald Remy doubled down on Emmert's unethical and irresponsible maneuver, stating that Penn State determined that By-Law violations occurred based on its evaluation of the Freeh Report.

Remy at 256:  "I think that was Penn State's determination after the reading the Freeh Report. You read the Freeh Report, it comes back to the questions. Everything goes back to the questions. Were there violations of NCAA bylaws? Penn State determined that yes, there were violations of NCAA bylaws."

 "Q Did NCAA, as part of the overall process in which you engaged in, make a determination 
 that there was a lack of institutional control at Penn State such that these penalties were justified? 

Remy at 257: "Penn State did. I mean, that's what they said to us and so that's the basis upon which we moved forward. We didn't have to." 

The evidence proves the NCAA knew there were no violations found in the investigation or cited in the Freeh Report.   Emmert and the NCAA leadership's acceptance of Erickson's "guilty plea" was inexcusable.

7.  Emmert Negotiated With Erickson To Determine Penalties

Gene Marsh: Strictly "window dressing"

"It was absolutely not a negotiation. And I was finally glad to see that David Berst in his deposition, boom, say it was not a negotiation."

-- Gene Marsh, Attorney for PSU

Senator Corman's summary of the case was correct in that there were two parallel conversations occurring in the case.  The "real" discussion of penalties took place between Emmert and Erickson.  Conversely, Gene Marsh was brought in by PSU to serve as "window dressing" for the fake negotiations between him, Donald Remy, and David Berst.   

Evidence indicates that Marsh was likely selected because he was incompetent and easily intimidated.  His track record showed he had blown his previous two gigs representing the Ohio State and Alabama football programs, with each case resulting in probation, losses of scholarships, and vacating of wins.  In other words, he was Erickson's and Emmert's ideal man for the job.

Marsh was used by the NCAA and PSU to provide disinformation, such as constant reminders of the position of the NCAA Executive Committee on the death penalty, to PSU attorneys Frank Guadagnino and Stephen Dunham.  Erickson then pretended to consult them for advice on "negotiating" with the NCAA.

In spite of the charade, the depositions Rodney Erickson, current BOT Chairman Keith Masser and Gene Marsh all confirm that negotiations began on Monday, July 16th and a list of proposed penalties was crafted by July 17th.

Rodney Erickson's Deposition 
By Erickson's own admission he and Emmert discussed potential NCAA sanctions  "On that Friday" (July 13th) as he was leaving the Scranton campus (Erickson deposition, page 30). 

Q. Shortly thereafter, am I right, is the time you had your first contact with President Emmert about potential NCAA sanctions?

A. On that Friday, yes.

Erickson went on to state that he did not talk to Emmert over the weekend and that the first substantive conversation took place with Emmert on Monday, July 16th and that negotiations started the same day (p. 229).  The post-season bowl ban was part of the negotiations (p. 227):

Q. Am I accurate that Penn State actually negotiated a reduction in the proposal length of the post-season ban?

A. Five to four years.

Erickson's recollection of Monday's discussion was that Emmert "said this  is not a normal situation where we go through the -- and he also said that the Freeh Group has already done an investigation that's more thorough...And that was one of the reasons...we may be able to move things in this direction of some sort of a package of sanctions (p. 43). 

Keith Masser's Deposition

The NCAA wasn't on my radar, but Rod Erickson  informed Karen and I that there were -- that the NCAA was interested in providing some kind of sanctions to Penn State. And that's -- and that --and then we were having periodic updates through that week. After that initial call with Rod Erickson, we had a short, maybe a day or so after that, an Executive Committee briefing by Rod Erickson. And then we were briefed periodically during that week prior to the consent decree being offered. (Masser Deposition, page 26).

According to the meeting invitation below, the Executive Committee briefing Masser mentioned was held on Tuesday, July 17th (Corman/Guadagnino #3).  That confirms Masser was informed on Monday, July 16th.

Gene Marsh Deposition
Marsh was much more definitive about the days the NCAA Consent Decree and penalties were proposed, stating that the settlement option originated Monday, July 16th and the penalties were laid out on Tuesday the 17th.


"So Monday was Remy and then Tuesday was when Remy and Dave gave me their first list of what -- what penalties that people had in mind." (Marsh Deposition, page 40)


The email below shows the first round of penalties proposed (Corman/Guadagnino #5).  

On Wednesday, July 18th, PSU legal staff member Frank Guadagnino checked with the NCAA regarding PSU initiating the draft of the NCAA Consent Decree (Corman/Guadagnino #6). 

This evidence proves that the sanctions and Consent Decree did not originate as a result of a death penalty threat and were a collaboration/negotiation between PSU and the NCAA.

8.  Sanctions Finalized and Rubber Stamped

"We have to make the best judgment at the time the issue is in front of us, with the information in front of us, and the executive committee, I think, did that well."

-- Mark Emmert

Shortly after midnight on Saturday, July 21st, emails from the NCAA arrived in the mailboxes of Gene Marsh, the PSU legal counsel, and - interestingly enough - a PSU campus "help desk" that was manned by an international student.   

So much for that confidentiality thing.

The negotiations on penalties were complete and the remaining issues were to clean up the language of the eventual consent decree, finalize the media campaign, and -- lastly -- get the approval of the NCAA Executive Committee.

On the afternoon of July 21st, the NCAA Executive Committee met to discuss the Penn State situation.  

According to Ed Ray, who admitted to neither reading the Freeh Report or the Consent Decree before he voted, the vote against the death penalty might have been 19-2 (with Ray and Pastides voting for).  It's a good bet Pastides didn't read the Freeh Report.

The unanimous decision that emanated from that meeting was that Mark Emmert could enter into a consent decree with PSU and noted a list of penalties that could be levied.  The proposal also dishonestly had a provision that the NCAA would take action unilaterally if PSU didn't agree to the sanctions. (Corman/Emmert #23)  

In summary, the Executive Committee simply rubber stamped what had already been negotiated by Emmert and Erickson without knowing they were bluffed.

9.  Lied to Graham Spanier and About Individual Culpability

It is one thing to lie to the public and to think that you won't get caught (e.g., Erickson and the death penalty), but it is quite another to tell a bald-faced lie when you know you'll get caught.

The latter is exactly what Mark Emmert did when former President Graham Spanier requested that the NCAA not name him or other PSU officials based on the evidence in the Freeh Report.

Emmert provided a weaselly answer that he didn't "intend" to single out individuals, all the while knowing that the NCAA Consent Decree language singled out Spanier.  (Corman/Emmert 27 and 28).

What is truly amazing about Emmert's answer to Spanier, however, is that after the NCAA Consent Decree was issued he continued to insist that individual culpability was not established -- even though it clearly was stated in the language of the document.  

In conclusion, the evidence in this case (and others) shows that Mark Emmert not only lacks integrity and ethics, but appears to be a leader who is completely detached from reality.

He remains unfit to be the President of the NCAA.