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.

New Monitor, Same Snow Job (Letter to Editor, CDT)

The CDT changed the title from what is posted above to the title below.

Letter to the editor: Spin from Old Main dizzying
June 6, 2015

Penn State’s new athletics integrity monitor, Charles Scheeler, put his stamp of approval on Old Main’s self-assessment of its progress in improving the university.

The AIA’s report is like the Freeh report in that it draws predetermined conclusions with little supporting evidence.

On Page 10, it concludes that the increased number of secondary violations reported was due to the increase in the number of compliance staff. It also reports increasing questions about rules interpretation. However, it is more likely that the increases are due to the NCAA revising its violation structure from two tiers to four in August 2013.

No statistics were provided about the increase/trend in violations.

On Pages 4 and 5, the report turns to feedback received from employees that revealed that many are concerned about retaliation if they report wrongdoing. Again, no statistics were provided to show the pervasiveness of the problem. Its only example of retaliation was drawn from the (highly dubious) 2000 janitor incident, and it makes no mention of Mike McQueary’s whistleblower lawsuit.

Finally, the university — Scheeler — reported that 35 youth protection reports were received in 2015, but doesn’t specify if they were to ChildLine, PSU’s youth compliance specialist, or to PSU’s ethics hotline.

It states the number has increased over last year, but is this a positive or negative development? Who knows?

This report is more PR spin for Old Main and a waste of university resources.

RAY BLEHAR

ANNAPOLIS, MD.

Read more here: http://www.centredaily.com/2015/06/06/4781503_letter-to-the-editor-spin-fron.html?rh=1#storylink=cpy

Read more here: http://www.centredaily.com/2015/06/06/4781503_letter-to-the-editor-spin-fron.html?rh=1#storylink=cpy

Erickson's Notebook Reveals Evidence of Deceptions, Possible Crimes

PSU's recent filing denying alumni trustees access to Freeh's source materials falsely argues that the University is protecting employee confidentiality.  The reality is that they are hiding evidence of possible crimes. 

By
Ray Blehar

Today, I am making a partial release of evidence I received in October 2012.  The release is in response to the PSU administration's continued stonewalling in providing access to the Freeh Source Materials -- that will help us get to the truth of the Sandusky matter.

Today, we take another step toward the truth.

The evidence released today reveals:

-- The administration knew Freeh lied about his independent discovery of the email evidence; 

-- The NCAA got at least one substantive update on the progress of the ongoing investigation at PSU; and, 

-- The administration planned to submit false personal injury claims to the Pennsylvania Manufacturers Insurance Company (PMA) in an effort to get reimbursed for the settlement costs of the John Doe A lawsuit and, if successful, likely future lawsuit settlements.

The Evidence

The information that follows is from a copy of the personal notebook of former Penn State President Rodney Erickson.  Two independent sources confirmed that the handwriting belongs to Erickson.

Analysis of the contents reveals that Erickson was receiving an update on the progress of the pending investigations and actions related to the Sandusky scandal.  It also appears that the notes capture the impressions of the Pennsylvania Office of Attorney General (OAG), thus there is an inherent bias to assume guilt on the part of PSU employees and officials and an inherent bias in the OAG's judgments of the reliability of the evidence.  I will make those distinctions clear in my presentations, where applicable. 

To maintain the confidentiality of the employees involved, I have (properly) redacted all of the information that could compromise their identities.  

Possible Conspiracy, Obstruction of Justice, Forgery

Page B-1 of the notebook.

Line 1 of the page below confirms the date of the note as January 31 (2012).

Line 2 shows that Erickson is to obtain copies of notes from Tim Curley and Gary Schultz.  This is significant because there has never been a mention of notes belonging to former Athletic Director Curley.  The mention of notes from Schultz is also an issue because those notes were allegedly not turned over to the OAG until April 2012.  

The "discovery" of the Schultz notes by the Freeh team allegedly occurred in May 2012.  Yet the Conspiracy of Silence presentment  identified April 2012 (see page 20) as the date on which the Schultz file was turned over.  Additionally, Kimberly Belcher testified that she turned over the Schultz files in April 2012 (to the OAG).  Belcher also testified that Gary Schultz turned over copies of the files (to the OAG) one day earlier.    Therefore, there is agreement between the prosecutors and one of their witnesses that Freeh lied about his discovery of the Schultz file (all references to the Schultz file in the Freeh Report are dated 5-1-12).  

Lines 3, 4, and 5 indicate that Ira Lubert, Stephanie Deviney, and Keith Eckel may have served as a special liaison group for the OAG investigation.  More about the possible roles of each member in a future post.

Lines 8 through 15 discuss the OAG's evidence and impressions regarding Penn State's failure to cooperate during the investigation.  

Lines 10 and 11 make reference to PSU taking 18 months to supply records that were subpoenaed on January 7, 2010.  Counting forward 18 months puts the date of receipt by the OAG as 7 July 2011, which is the exact date the Moulton Report (page 158) confirmed for the "Penn State emails" being turned over to the Pennsylvania State Police.  Obviously, the Penn State Office of General Counsel (OGC) knew when it turned over the email evidence, thus at a minimum, the OGC knew Freeh lied about his independent discovery of the email evidence at his grandstanding press conference on July 12, 2012.  

The following quote is a reference to Freeh Report Exhibit 5G and the email evidence (my emphasis added):

"In critical written correspondence that we uncovered on March 20th of this year, we see evidence of their proposed plan of action in February 2001 that included reporting allegations about Sandusky to the authorities. After Mr. Curley consulted with Mr. Paterno, however, they changed the plan and decided not to make a report to the authorities."

However, there are broader legal implications.

False Charges.  Former President Graham Spanier  was charged with obstruction of justice for failure to comply with Subpoena 1179 that requested his emails and documents.  The above information indicates that key documents and emails were turned over while Spanier was President, and not delayed until March/April 2012, as falsely claimed by former AG Linda Kelly (on page 32 of the Conspiracy of Silence presentment).  

At the July 29, 2013 preliminary hearing, Penn State IT forensics team expert, John Corro testified that he was not contacted to retrieve information from the December 2010 subpoena (#1179) until March or April of 2011.  After being instructed to gather the requested information, he turned over three USB drives containing the emails to Baldwin in April 2011 (see page 91).  Moreover, at the grand jury hearing of Graham Spanier, Baldwin promised to turn over the requested emails by April 15, 2011.  It is quite apparent that Penn State's OGC was behind the delay in turning over email, not Spanier. (Possible Obstruction of Justice,  Conspiracy)

Schultz was also charged with obstruction of justice for his failure to turn over his notes.  However, the notebook appears to show Schultz's notes already in the University's possession in January 2012.   If this is indeed the case, then it is likely the infamous "secret file" of Schultz was procured shortly after he informed Baldwin of its existence on January 5, 2011. Copies were made and likely provided to the AG, while the originals were returned to the drawer.  (Possible Conspiracy)

Forgery. Considering the emails were turned over in July 2011, it defies explanation that Spanier was not charged with failure to report child abuse in November 2011.  Freeh Report Exhibit 5G includes an email purported to be written by Spanier on 27 February 2001. In that email, Spanier allegedly wrote that PSU could be "vulnerable for not reporting" the incident.  Also note that the Sandusky Grand Jury Presentment (page 12) referenced the responsibility of the head of a school to report suspected child abuse, but remarkably didn't charge Spanier at that time.   

So what is going on?

According to the forensics experts I consulted, the February 27, 2001 email was universally deemed to be suspicious.  Further research revealed an error that would cause html tags to appear in the text of the email would be caused by converting a Eudora email file to Outlook.  This is exactly what would have occurred if someone downloaded and edited the file, due to PSU's system switch from Eudora to Outlook.   Based on those facts, along with numerous reports of varying dates by witnesses to the turnover of the email and recent reports of Freeh's past history of manipulating evidence (e.g., BP and FBI),  there are substantial reasons to suspect evidence tampering. (Possible Forgery)

Exhibit 5G is shown below with the html tag " " (tag = non-breaking space) circled between each sentence where a double space separates them.  Note that it consistently appears in the text of Schultz and Spanier (at the top), who both use the traditional method of typing a double space after a period.  Conversely, Curley types in an alternative method of using a single space.  It is notable that there is only one html tag in the spaces between the sentences typed by Curley, which is caused by typing an extra space.  Other email samples obtained that were written by Curley demonstrated he single spaced after a period.  So in just this one instance, Curley used a double space? It just so happens the html tag appears after the only reference in the document about Joe Paterno.  This suggests that the line about Paterno was inserted into the document.  See below:

The OAG forensics expert, Braden Cook, offered no legitimate explanation for the presence of the html tags during his testimony (page 81) on July 30, 2013.  Cook simply said "that is formatting put in there from a web page."  Neither Cook nor any other expert witness brought forward by the Commonwealth testified as to the date the emails were turned over to prosecutors.  And of course, no one who testified made any mention of Louis Freeh's alleged role in discovering the documents.  

Anyone want to venture a guess on what Freeh's role was with regard to emails?  Hint: His computers were not connected to the University's network, thus his "work" was not traceable.

A review of the original email files (i.e., the electronic source data used by Freeh) would prove or disprove evidence tampering.  I suspect this is one of the key issues behind the Board's desperation to keep the source material hidden. (Possible Conspiracy) 

NCAA Received a Substantive Update On The Investigation

The Corman v. NCAA lawsuit revealed that the PSU BOT gave the Big Ten Conference and the NCAA permission to take part in Freeh's investigation. Although Penn State permitted their participation, officials from the NCAA and Penn State denied that any substantive updates were provided during the investigation.  

Pages B-13 and B-14 reveal that those statements were false.  

Line 5 alleges that an assistant coach gave permission for stuff (Line 15) to be given to recruits (Line 11).  Line 16 alleges that they were given a slap on the wrist for that activity. The allegations reveal a minor NCAA violation of giving impermissible benefits to recruits. The NCAA's typical punishment for minor violations is colloquially referred to as a "slap on the wrist."

Lines 17 and 19 report that Mike McQueary had a gambling problem and/or gambling debts. This information was revealed to the public in The Whistleblower's Last Stand, by ESPN's Don Van Natta (March 3, 2014).  McQueary bet on college and NFL games as a player, which would have been a major violation if discovered back then.  However, in 2011, the violation was outside the statute of limitations for enforcement.  (Note: All of the Sandusky abuse incidents on campus were outside the statute of limitations as well, so that says quite a bit about the "expertise" Gene Marsh brought to the table).  

Page B-13, lines 23 and 24 and Page B-14, lines 1 and 2, state that former athletic director Tim Curley and another PSU official were "fastidious on rules violations e.g. giving donations."

B-14, line 5 appears to be the NCAA response to the update, which was it was "waiting for (the) Freeh Report."

B-14 lines 7 through 10 refer to the AG continuing its investigation at Penn State.

B-14, line 13 refers to a teleconference scheduled for 5:30 PM

The remainder of the page is not relevant to the NCAA investigation.

Analysis and Implications

The note reveals that the NCAA and Penn State learned of violations that were found during the AG's investigation, but nothing that would be actionable to levy serious punishment.  However, the parties also learned that AD Curley and his staff were very fastidious about rules.  

As I reported in An Act of Bad Faith, 22 January 2015, the Freeh investigation had finished its review of the football program in January as well (based on the end notes of the Freeh Report).  Thus this was likely the last investigation based report about the athletic department and the football program.  Any other information used by Freeh to condemn the athletic "culture" was garnered from trustees (interviewed in April) and former PSU employees, like Vicky Triponey (interviewed in March).  After the investigations and interviews, Freeh and the NCAA didn't have anything tangible on Paterno and PSU Athletics -- and Old Main was certainly aware of it.

The deceptive methods of the BOT power bloc are on display in this July 20, 2012 email.  Erickson, who knows that investigations by the OAG and Freeh (which examined police records related to the Clery Act) surfaced nothing substantial, but then goes on to "bluff" Guadagnino and Dunham into thinking there would be risk in the traditional Committee On Infractions (COI) investigation process.







































Contrary to media reports, the evidence in this case is not of an NCAA cram down, but of Old Main "selling the University down the river," as stated by former NCAA official Ameen Najjar.  After Najjar's statement, the alumni watchdog group, Penn Staters for Responsible Stewardship (PS4RS) demanded a release of the documents related to the eventual NCAA Consent Decree.  

PS4RS stated:

“Should we ultimately find that Penn State was complicit in the imposition of the sanctions, or that President Erickson misrepresented the events that led to the execution of the consent decree, then it is reasonable to conclude that the (b)oard of (t)rustees and administration have been dishonest with the Penn State community and have failed wholly and completely in their fiduciary responsibility to the (u)niversity,” 

Pages B-13 and B-14 provide evidence of misrepresentation of the facts by Erickson and complicity with the NCAA in avoiding an investigation which would have eventually found no grounds to punish Penn State's athletic department.

But the misrepresentation of facts by the Penn State Board of Trustees started well before any decisions were made about the NCAA Consent Decree.

Attempted (and Rejected) Insurance Fraud

A rather cryptic set of notes spanning pages B-15 and B-16 appears to capture details from a discussion regarding the PMA's notice that it would not pay coverage for incidents of sexual abuse related to the Sandusky scandal.  

Penn State attempted to file the claims as personal injury claims, and then perhaps, was going to justify the claims by using fraudulent medical billings from the Hershey Medical Center.  

Page B-15, line 17 is noting the name of the law firm, Jenner and Block, who was working on the Pennsylvania Manufacturers Association Insurance Company (PMA) lawsuit.

Page B-16, line 1 characterizes PSU's strategy as a "Medical Care Story." (Possible fraud)

Page B-16, line 2 cryptically refers to victim settlements.

Page B-16, Line 4 is somewhat unintelligible, but the reference to Hershey is clear.  The second word might be "language," in a reference to policy language, but that is hardly conclusive.  There is also a reference to "Bill" which may be a name or it may be a reference to medical bills -- again, no certainty in interpreting the handwriting.

As it turned out, PSU followed through on the "medical care story" when it began negotiating the claims related to the John Doe A lawsuit with the PMA in early January.  In Penn State's legal filing, pages 5 and 6 it conveniently substitutes the words "bodily injury" for "abuse" to make its case -- and the only word it quotes from the John Doe A lawsuit is "continuously."   

Penn State alleged that PMA at first agreed to pay the claims, then upon further review, decided differently.  On February 2nd, one day after these notes were taken two emails announced that PMA filed for a declaratory judgment to limit its liability in the Penn State case.  It essentially agreed to pay claims related to negligence of University officials, but not the abuse claims.

There is much back and forth over which policy was in effect when, but the bottom line is that no policy issued after 1992 contained coverage for abuse and/or molestation.  One has to wonder if PMA didn't do PSU a favor by filing for a declaratory judgment and sparing the University the trouble of creating bogus medical treatment bills at Hershey.  

Please recall that in the immediate aftermath of the Sandusky charges, Penn State pledged to provide assistance to the victims in Erickson's Five Point Promise.  In March 2012, it officially announced free counseling services for child abuse victims of Sandusky, which was offered via a contract through Praesidium -- a Texas counseling firm.

How did Penn State end up using Praesidium?  That I do not know, but it seems like an unusual coincidence that one of the key staff members of that firm is named Matthew Dunham?

Undoubtedly, the network of concerned Penn State alumni will be checking for possible connections to current PSU Counsel Steven Dunham because that is the scrutiny that the Board has brought upon itself by continuously stonewalling its alumni and the alumni elected trustees.

Conclusion 

The evidence released today indicates that high ranking members of the Penn State University administration were engaged in dishonest practices well before the announcement of the Sandusky charges and they continued their deceptions up to the signing of the NCAA Consent Decree.

Not only did the administration deceive its alumni and the public, but it went as far as to deceive other members of the board of trustees, members of the PSU OGC, and even legal experts (i.e., Gene Marsh) that it hired to "assist" with the scandal. 

Some of the evidence that was revealed today helps to explain why Barron and his cohorts will likely fight to the bitter end to keep the alumni trustees from accessing the Freeh Source Materials -- the scandal "behind" the phony football scandal is far worse.

Today's blog serves notice to the administration that they may be able to keep people away from a law office in Philadelphia, but that office isn't the only place that the truth about the scandal can be found.

The truth is out there -- and people are finding it.