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.

Media Wrong About Bluff, Death Penalty, and NCAA Influence

The preponderance of the evidence to date shows there was no death penalty ultimatum or bluff and that PSU was behind the narratives of the Freeh Report and the NCAA Consent Decree

By
Ray Blehar

Since November 10th, there has been a deluge of documents flooding the legal system.  The November 10th Corman v. NCAA filing alone was 325 pages. That was followed by more Corman filings on the 12th, 13th (2), and then a Paterno v. NCAA filing on  the 20th.

As in any case, the more information/evidence that is found, the clearer the picture gets.  

For those in the media who have not kept a close watch on the case, it was easy for them to (again) jump to conclusions based on a word or two in emails and a few other documents.

From their abbreviated review, the media concluded that PSU was bluffed into believing that the NCAA could sanction them.  They also jumped to the conclusion that the NCAA had influenced the Freeh Report  and that PSU came close to getting the death penalty.

Those stories are all wrong.

PSU influenced Freeh Report, not NCAA 

Nothing the NCAA briefed to the Freeh group about major violations or lack of institutional control was mentioned in the report.  In fact, the NCAA is only mentioned three times in the report and the best the Freeh report could muster was that the PSU compliance staff was understaffed.  This allegation, of course flies in the face of over a half century of results showing that PSU never had a major rules violation...and still doesn't.

The end notes of the Freeh Report reveal that it was mostly sourced from discussions with the PSU BOT members, Cynthia Baldwin, and the 1998 University Park police report.  The claims of being an exhaustive review are greatly exaggerated.  More was left out of the Freeh Report than was put in it.

Emails obtained by Ryan Bagwell and Bill Cluck revealed the "Core Group" who guided the construction of the report were PSU's Frazier, the PA government's Tomalis, FSS's Omar McNeil and Louis Freeh.  PSU BOT leaders, Karen Peetz and Keith Masser, were infrequent addressees on the emails.

Finally, the "culture" allegations lodged in the Freeh Report originated with the PSU Board and Erickson's Five Point Promise, specifically point number 1.


1.  I will reinforce to the entire Penn State community the moral imperative of doing the right thing - the first time, every time. 

-- We will revisit all standards, policies and programs to ensure they meet not only the law, but Penn State's standard. To oversee this effort, I will appoint an Ethics Officer that will report directly to me. 

-- I ask for the support of the entire Penn State community to work together to reorient our culture. Never again should anyone at Penn State feel scared to do the right thing. My door will always be open.

After Freeh proclaimed PSU's culture to be corrupt - based mostly on a dubious hearsay account of a crime allegedly witnessed by a demented janitor - PSU had Gene Marsh let the NCAA know that PSU agreed with the Freeh Report's assessment of Penn State's "culture" problem.

As Marsh would later explain in August 2012, the NCAA believed the so-called lack of institutional control was caused by the "culture," not a violation of NCAA rules.  He pointed to Article 2.1, which states the President or Chancellor has authority over athletics, as the primary reason for the sanctions.  However, an honest interpretation of the language reveals that the scope is compliance with NCAA rules and regulations, not ensuring coaches police the conduct of retired coaches or second guess the decisions of child welfare officials.


Principle of Institutional Control - NCAA Constitution Article 2.1.1
It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the NCAA. The institution's chief executive officer is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures.

Winding back the clock to November 10th, 2011, Emmert in an ESPN interview stated that the NCAA would wait for the outcome of the criminal investigation before deciding how the NCAA would address the Penn State issue.  

The criminal cases against PSU officials were not concluded, however the NCAA decided to abandon their normal processes, citing the "unprecedented" nature of the case.

But the real reason the NCAA got involved was because: 1) Penn State wanted them to and 2)  coming down hard on PSU would boost the embattled organization's image.

As Marsh wrote above -- Erickson accepted the Freeh Report (on behalf of the Board) and then threw Spanier, Paterno, Curley, and Schultz and the "PSU culture" under the bus.  

The Board's  "goals," so to speak, were to get one more authority to confirm their decisions from 11/9/11 and to continue to assist the OAG in prosecuting PSU officials in the court of public opinion, if not in the eventual criminal trials.  

PSU was not "bluffed," communicated with NCAA all along

In January 2012, Erickson knew that the NCAA was informed of McQueary's gambling issues and some other potential minor rules violations.  

Evidence shows that both issues were uncovered during the criminal investigations relating to Sandusky, Curley, Schultz, and Spanier, given that Frank Fina advised PSU to not represent one of the possible criminal defendants allegedly related to the aforementioned issues. 

The NCAA rejected using this information in sanctioning PSU (i.e., no mention of them appear in the Consent Decree) because the information was obtained through the criminal justice system -- and not the so-called "independent" investigation by Freeh.

PSU Athletics:  "Fastidious on rules violations."

In the same time-frame, the NCAA also was told that the PSU Athletics Department compliance officials were "fastidious on rules violations (e.g., giving donations)."  The NCAA, likely realizing a case of Lack of Institutional Control (LOIC) couldn't be made on legitimately obtained evidence, responded that it would "wait for Freeh Report."   

Prior to the publication of the Freeh Report, emails were leaked to the press that resulted in reports that PSU officials were more concerned with the "humane" treatment of Sandusky, had no concern for victims, and that Graham Spanier may face charges in the case.  Not so ironically, PSU's comment on the email leaks/press reports was that "it would wait for the Freeh Report."

PSU, NCAA made case with media events
In short, PSU and the NCAA used every means at their disposal to dig up evidence that could be used to nail Paterno and PSU Athletics - but that evidence was hard to come by, even with Freeh using intimidation tactics on witnesses. 

Louis Freeh:  All show, no substance....
...and the media keeps falling for his act.

In the end, PSU and the NCAA were banking on Freeh's reputation and well crafted media events to overcome the lack of evidence in the case.  As history shows, the Freeh Report could not be delivered to the media in advance of his press conference due to a (planned) server crash.  The media simply ran with Freeh's press conference remarks without doing any fact-checking.

The quick acceptance of the report by Erickson, Frazier, and Peetz was astonishing to Penn Staters, who at this point, still believed that the PSU BOT was capable of rational thought and were somewhat honest people.  

However, the quick "approval" and the even quicker move to reach a settlement with the NCAA indicated that the two parties had prior knowledge of the flimsy evidence in the Freeh Report and were moving fast before the public learned the report was a sham.

It appears that by the morning of July 13th, PSU and the NCAA had been engaged in discussions and had formulated a plan among the top brass. That group likely included  Erickson, Tom Poole, and Frank Guadagnino for PSU and  Emmert, Remy, and Jim Isch for the NCAA.





















In Erickson's interview on July 17th, he stated that Penn State would be responding to the four questions asked by the NCAA on November 17th,  2011 -- after which PSU would negotiate "appropriate sanctions."    

It's likely that this was one of the "bluffs" involved in this case, given that Erickson had already agreed to using the Freeh Report as the response to the questions and emails indicate the NCAA was already discussing sanctions.

The next passage will show that Erickson and high ranking PSU officials -- to include Gene Marsh -- lied about what transpired with the NCAA.  

Don Remy's email destroys myth of Death Penalty "Ultimatum"

The November 13th  Penn State filing in response to Corman's request for documents appears to hold the most important e-mail (Exhibit M) to date.  Correspondence of September 7, 2012,  between Don Remy and Gene Marsh revealed how the PSU/NCAA Consent Decree was developed.  Note that Remy stated the following italicized remarks are the statement he would make to the public, however the front end of his email to Marsh confirmed that the Death Penalty controversy resulted from Penn State's PR plan.


On July 10, 2012, the media disclosed that the Freeh Report would be issued and a
press conference would be held on July 12, 2012. I contacted the Penn State University Office of
General Counsel to inform them of the NCAA's position on this Report. Because Steve Dunham had
not yet taken office...

...on July 11, 2012, I spoke with acting general counsel Mark Faulkner and
others. I informed them that it would be the NCAA position when the Freeh Report was released that
we expected Penn State to respond to the November 17 letter and then the NCAA would determine
our course of action. That course of action could include anything from doing nothing to conducting a full blown enforcement investigation and going through the infractions process.

On that same day, July 11, 2012, President Emmert delivered a similar message to President Erickson. On July 12, 2012 the Freeh Report was issued and the NCAA released the message we had communicated to PSU: we expected a response and then we would see what was next. 

On July 12, 2012, you (Gene Marsh) contacted me for the first time and indicated that you would handle drafting the response for PSU, that you would be vacationing but would be available by mobile and we should try to connect the following week. We tried to connect over the weekend and...

...on Monday, July 15, 2012, you and I spoke and recognized that our clients (NCAA and Penn State) were contemplating the possibility of resolving matters without a response to the letter and without an enforcement investigation and infractions hearing, but rather through some summary resolution wherein Penn State would agree to the findings of the Freeh Report and the NCAA would impose a set of penalties based upon those findings.

Death Penalty: ..there's a chance...

On that same day, President Emmert appeared on a pre-scheduled interview with PBS where he discussed the Freeh Report and indicated that the NCAA was waiting for Penn State's response to his letter. In that interview he acknowledged that the traditional enforcement process was available and that all penalties, including the so-called death penalty were in play.

On July 17, 2012 the NCAA Executive Committee met and discussed the approach of a summary resolution based upon Penn State's adoption of the Freeh Report that would include various penalties. On that same day, David Berst and I communicated to you the proposed penalties and the approach of a binding consent decree. You will recall that the proposed fine was originally discussed to be $30 million and subsequently raised to $60 million and we initially neglected to report on the vacation of wins, but immediately followed up the call with an e-mail to that effect. President Emmert had a similar conversation with President Erickson.

Late night on July 20, 2012 you were sent a draft of the consent decree, pending NCAA Executive Committee approval. On July 21, 2012, the Executive Committee voted to approve the concepts of the penalties as they were spelled out in the final consent decree and that was communicated to you.

On July 23, the consent decree was executed and announced.

The Erickson video, as well as emails and drafts of the NCAA press release show that the penalties were changing as the process moved toward the 23rd.  

For example, the fine changed from $30 million to $60 million.  Emmert originally planned to rescind Paterno's 2010 Ford Foundation Award, but later relented.   

This was no take it or leave it, Death Penalty ultimatum -- it was just as Ed Ray truthfully reported.  

Ray's correspondence noted that the EC was overwhelmingly against suspension of play when it took its final (unanimous) vote on the penalties that would be enumerated in the NCAA Consent Decree.  The deposition of David Berst (page 221) revealed it was "understood by Gene (Marsh) that we might not ever get to the point where we could prove a case that would finally result in the death penalty."

So if Gene Marsh understood that the NCAA would have a difficult time justifying a case for the "death penalty," it would defy logic that he would get upset over Ed Ray's comments that the Death Penalty was quickly dispensed with by the NCAA Executive Committee.  

Of course, the reason he was upset was because Ed Ray's comments contradicted those of his client's (Penn State).

Collaboration on Public Relations

Based on the evidence above, the premise that the NCAA imposed the "unprecedented" process on PSU is clearly a lie. The vast majority of evidence to date supports the theory that it was a collaborative process.  

The Board also collaborated on the public statements that were devastating to the University, but amazingly kind to Karen Peetz and Rod Erickson.   

With regard to the latter, the PSU Executive Committee's (handwritten) meeting notes from 7/22/2012 reveal that "inner circle" requested Mark Emmert praise them, while throwing Paterno and others under the bus.

Emmert's press conference reveals he did a great job praising the Board and condemning Paterno (e.g., hero worship) and PSU athletics.  

As you read the preceding passage, I expect you were as dumbfounded (and quite possibly, as seething) as I was that the PSU Board and Erickson never spoke up to correct the record, even if just about academics.

There is no question that these individuals only cared for their own self-interest -- not the University's best interest.

Maintaining the Lies: The August 12, 2012 BOT Meeting

On August 12, 2012, the Board called a special meeting to discuss the process by which the NCAA imposed the consent decree and the sanctions on PSU and to affirm support of Rodney Erickson, whose authority to sign the CD was challenged by some trustees. 
  
As the discussion of the meeting turned to supporting Rod Erickson's decision to sign the CD, Peetz, Erickson, and Marsh all had their lies straight.


I absolutely support President Erickson and his  decision to accept the consent decree as the only real  option in the extraordinarily difficult circumstances  and the choices we were presented.  -- Karen Peetz



The next most substantive discussion was on Thursday evening (July 19th), and that message was loud and clear.   I was told that I should know that the majority of the  board of directors at the NCAA believe that the death  penalty should be imposed.  That was as late as Thursday evening and that's the first time that I heard, although I understand other places -- other    
numbers may have been tossed around, but that's the first time that I heard a multi-year death penalty. -- Gene Marsh


 Our legal team then began discussions with  NCAA legal counsel on Monday, July 16th, and it was clear that the NCAA was not interested in negotiating  the terms of the consent decree.  It was a take it or  leave it proposition, and despite our attempts to push  back on the sanctions as we learned about them we  didn't, as Gene indicates, receive the draft consent  decree in writing until the early hours of Saturday  morning then.  -- Rodney Erickson

Erickson's August 12th  statement contradicted his remarks on July 17th, which clearly were that PSU would be negotiating the sanctions.  As much of the evidence above shows, Erickson is guilty of lies of omission about quite a few things in this case -- some things could be considered an obstruction of justice.

Marsh, who had considerable experience with the NCAA, knew that the option to go the traditional enforcement route was available and his discussions with Remy and Berst revealed that he knew the NCAA would be hard pressed to make a case for the death penalty. 

His remarks to the Board about Article 2.1 being the "law of the land" for LOIC in this case were indeed a lie.

Peetz:  No mastermind.

As for Karen Peetz, she was not the mastermind behind any of this, but was willing to assist with the PR campaign to make her "leadership" of the BOT look good, while smearing Paterno and the football program.  

Peetz, who played field hockey at PSU, held a grudge against the football program, which unbeknownst to her, funded her own sport.  

Obviously, Karen is just as brilliant now as she was then.

Conclusion

As more evidence has come out, proper interpretation of the information reveals that select members of the PSU Board of Trustees, such as Erickson, Frazier, Tomalis, Peetz, and Surma, as well as key members of the PSU legal team, were firmly supporting the OAG's narrative that Paterno and key members of the administration had covered up Sandusky's crimes.

They hoped that the NCAA Consent Decree, with provisions stating that PSU could not challenge or appeal it through the NCAA's process or a judicial process would convince Penn Staters and supporters that it (and the Freeh Report) was the final word -- and the only solution was to "move forward."

They failed.