An Act of Bad Faith: The BOT's & NCAA's Railroading of Paterno & PSU

A construction of the Freeh investigation timeline and other evidence shows the NCAA didn't influence the outcome of the Freeh investigation or bluff PSU.  The inconvenient truth is that Erickson knew the NCAA had no grounds to penalize PSU, but collaborated with them to railroad Paterno and the University.

By 
Ray Blehar

The NCAA has slithered away from the Corman/McCord lawsuit with its reputation somewhat intact due to a settlement that still has PSU paying fines and also making quarterly payments to flim-flam man, George Mitchell.  Worst of all, there was no admission by the NCAA that it had overstepped.  In fact, it was quite the opposite.

The NCAA took the words "good faith" (from the settlement) out of context to boast that it had authority to punish PSU in Sandusky matter, even though they (and Rod Erickson) knew there was no basis for penalties.

Statements by Erickson, Gene Marsh, Emmert, and other NCAA officials that the Freeh Report provided the basis to punish Penn State were absolute hogwash.  We all now know that the head of the Executive Committee (EC), Ed Ray, never read the report nor did he recall the EC's early favoring of the death penalty.   Statements by the NCAA's PR Exec Bob Williams and Mark Emmert also proved that both men were clueless about the contents of the Freeh Report.  

So, the million dollar question is:  Was Erickson bluffed by Emmert's statements that the Freeh Report showed the worst case of lack of institutional control he had ever seen and that the EC's reaction to it was that they wanted blood? 

Absolutely, unequivocally, no.  

While the email of Julie Roe (Lach) mentioned that "our approach to PSU as a bluff when talking to Mark," it was clear she wasn't among the cabal at the NCAA who was collaborating with Erickson and company.  To make an analogy, she was the NCAA's equivalent of former PSU BOT member Ann Riley in terms of influence. Roe (Lach) would eventually be fired over the Miami (Fla) investigation.    According to Gene Marsh, he had expected to be dealing with Roe (Lach), but stated this was "a whole different critter" when he found himself negotiating with the top brass of the NCAA (Remy and Berst).   

In an interesting aside, Marsh was hired late and had a track record of failures at his two negotiations with the NCAA (on behalf Ohio State and Alabama).  According to Frank Guadagnino's deposition (p. 14), Marsh reached out to PSU at the urging of none other than Cynthia Baldwin.  Previously, Marsh wrote that he believed the NCAA "should leave this one alone."  Later, he would advise PSU to not risk an investigation by the Committee on Infractions.  

Are you smelling something rotten?

Erickson:  Documents confirm he knew
the NCAA didn't hold any cards.

The truth that Penn State and the NCAA so desperately want to stay hidden is that both parties knew there was no Lack of Institutional Control (LOIC) over PSU Athletics.  There were no major violations to support it.  According to documents obtained from Old Main, by January 31st, 2012 the NCAA and PSU understood that the ongoing investigation had found PSU to be very good at following the rules.  

But that didn't stop Erickson and Emmert from striking a "bad faith" agreement.

An Act of Bad Faith

Analysis of the Freeh Report, email evidence, court depositions, and other evidence paints a picture of collusion between top officials at PSU and the NCAA in railroading Paterno and the University at large.  In addition, the evidence shows that Freeh, Sporkin, and Sullivan (FSS) used its engagement letter as the investigation plan and the Office of Attorney General's Sandusky grand jury presentment as the report template for convicting PSU officials in the court of public opinion.  

In summary, it was an "act of bad faith" by all involved.  And they did it for a variety of self-serving reasons.

The PSU Board of Trustees (BOT) needed a replacement narrative to justify the firings of Paterno and Spanier.  It ensured the Freeh Report would do so by specifying the expected contents in the engagement letter with FSS.   There are other reasons for the BOT's inner circle's scapegoating of Curley, Schultz, Paterno, and Spanier, but for the sake of simplicity, the   focus will stay on justifying the firings.

Louis Freeh, who was hired with the encouragement of Governor Tom Corbett, conducted his investigation as not to undermine the Sandusky prosecution and (likely) to assist the OAG in finding more evidence against Spanier.  In doing so, the investigation ignored exculpatory evidence that would have undermined the stories of the janitors and possibly Mike McQueary. 

The investigation and report also whitewashed the failures of The Second Mile and the failures of Pennsylvania's child protection system   The latter fact "benefited" Governor Tom Corbett and the PA government -- who would have been embarrassed if the public learned of the colossal failures of the child protection system (and police) in the Sandusky case.  The failures of The Second Mile also may have exposed the OAG's lax oversight of charities.  In both cases, the state could have suffered financial loss if it had been found negligent and likely forced to establish a victim's fund.

Centre County Children and Youth Services also benefited because it may have faced lawsuits over its shameful performance in the Sandusky case -- had it been exposed by either the OAG or Freeh.  

Freeh didn't work for free.  
The NCAA got what it paid 
for in the Freeh Report.

While the NCAA (and Big Ten) were permitted to engage with the Freeh investigation -- and received substantive updates along the way -- the NCAA's guidance to FSS didn't result in any findings of wrong-doing.   According to the Freeh Report, FSS conducted just one substantive interview concerning NCAA rules after it was briefed by Julie Roe (Lach).  The result was a weak allegation that PSU's compliance staff was understaffed (p. 36). 


The NCAA obviously didn't know the first rule of "Freehdom" -- Louis Freeh doesn't work for free.  You pay your money -- you get your results.  NCAA got what it paid for -- a report that didn't mention a single NCAA violation.  

Conversely, the PSU BOT's payment of $6.5 million ensured that the investigation would go exactly as the SITF directed.  The $6.5 (and eventually $8.1 million) also likely was enough to get Freeh's and his team lie about many things related to the case.

The confirming evidence follows.

Breaking Down the Freeh Investigation

The timeline constructed from the end notes of the Freeh Report correlates quite well with the timeline previously constructed from Right-To-Know emails. Both timelines show that significant updates to the Freeh Report occurred as the PA OAG was forced to utilize (release) evidence already in its possession.  The other significant update to the Freeh Report occurred after the Sandusky trial and the not guilty verdict related to the incident reported by McQueary.

It is highly probable that PSU provided Freeh with the relevant emails and the Schultz file early in his investigation, but Freeh had to wait for the approval of the OAG to utilize them.  Governor Corbett stated Freeh was selected because he would not interfere with the ongoing prosecutions or investigations.  That, of course, would include getting clearance to use certain evidence.

Timeline of the SITF's (Freeh) Investigation

The Right-To-Know emails obtained by PSU alumni Ryan Bagwell and Bill Cluck do not include any mention of a "BOT briefing call" for Freeh to brief the trustees about his investigation plan.  He didn't need to because the engagement letter set forth the outcomes of the investigation, which were to FIND:  1) the reporting failures that occurred; 2) the causes of the failures; 3) who had knowledge of the sexual abuse allegations; and 4) how the allegations were handled by the BOT.  

The timeline of Freeh's investigation reveals he followed the SITF's instructions perfectly, with little diversion of its attention to the NCAA's guidance. 

Engagement 1. Find reporting failures (focused on Paterno and 2001 incident)

November: The 2001 Incident

Freeh began his investigation on November 23rd with an interview of Cynthia Baldwin regarding her discussion with former Senior VP of Business and Finance, Gary Schultz, about his grand jury subpoena.  On the 28th, FSS continued interviewing Baldwin about the 2001 incident.

December: Joe Paterno/PSU Football

 In December, the end notes reveal that the investigation's focus had shifted to Joe Paterno and the football program.  FSS interviewed members of the Athletic Department (AD) and football staff about Sandusky working out in the facilities (Dec 5, 7, 11);  Paterno's knowledge of "everything that was going on" (Dec 6, 19);  Paterno's (lack of) involvement in sports camps (Dec 19); and compliance with NCAA rules (Dec 19).  The Freeh team also met with an official from the Office of Student Affairs to discuss disciplinary matters pertaining to football players (Dec 12).

Engagement 2.  Find causes of the failures (focused on access to facilities)
Engagement 3.  Who had knowledge of abuse allegations (focused on police,1998 incident)

January: Sandusky's Retirement benefits, the Clery Act, and 1998

 After being briefed by the NCAA in early January, the Freeh team met with a PSU AD official on January 10th, but didn't find any evidence of lax protocols or violations.  The FSS team then moved off the subject of NCAA violations and began investigating Sandusky's retirement benefits (Jan 12), conducted interviews with police about the Clery Act (Jan 13) and Sandusky's access to Beaver Stadium (Jan 25).   On January 27th, FSS interviewed a former University Park police officer (likely Detective Ronald Schreffler) regarding the 1998 incident.  

In January, the NCAA was informed that PSU's AD compliance staff was "fastidious about rules violations."  The NCAA responded that it would "wait for Freeh Report."

SIGNIFICANCE: In January 2012, the NCAA and PSU knew the athletic department was compliant with NCAA rules and Freeh's investigation found nothing of note in its investigation from that point forward.

February: Clery Act,Sandusky Retirement, 1998

In February, FSS continued work on the Clery Act, interviewing former police chief Steven Shelow on the 1st.  The next day (Feb 2) they questioned Office of Human Resources (OHR) officials about reporting of incidents and about Sandusky's retirement.  While questioning OHR, the investigators also inquired about the 1998 incident and Curley's background.  The investigation looked into Sandusky's access privileges to the Beaver Stadium luxury suites on February 8th. On February 22nd, a retired dean was questioned about Sandusky's emeritus status, while OHR was likely questioned about background checks.

Engagement 4:  How allegations were handled by the BOT (focus on Spanier's leadership).

March: BOT Knowledge of Sandusky, PSU Culture 

On the last day of February (Feb 29) and through March, the investigation conducted numerous interviews with members of the BOT about how the Board was informed of the Sandusky investigation and about Spanier's leadership.   On March 22, the FSS team received a letter from The Second Mile's attorney explaining its knowledge of the 2001 incident. In the letter, the charity's attorney informed FSS that Curley had told the charity to "avoid publicity issues."  To be clear, the Freeh Report's lone piece of evidence about PSU avoiding bad publicity (p. 78) was based on double hearsay. 

Triponey: Reached out to Emmert
to assist in "Penn State mess."

The investigation took a brief detour to interview Vicky Triponey on March 10th to discuss her interactions with Paterno and Spanier.  According to Triponey's affidavit, she had reached out to Mark Emmert to assist with the "Penn State mess," referencing a "toxic culture."   She also stated that she was told that she would be brought in near the end "to clarify, validate or perhaps confirm what they were hearing in their other interviews."  The significance of Triponey's information was summarized in a footnote on page 65 of the Freeh Report.   The investigation still had nothing on Paterno.


At this point, the report draft was likely a repackaging of the grand jury report with embellishments about Sandusky's access and a few additional areas, like University governance, compliance with the Clery Act and other policies mixed in.  That's when the first bump in the (rail)road occurred.

The Perjury Particulars Bump in the (Rail)Road
In response to a request for perjury particulars by the attorneys for Curley and Schultz, the OAG was forced to utilize the Penn State emails (that had been turned over to the PA State Police in July 2011) to support the Commonwealth's response. The significance of using the emails was two-fold: first, it allowed Freeh to use them in his report; and second, the emails more fully exposed the role of DPW in the 1998 investigation.  

April:  Revisiting 1998 and Continued BOT Interviews.

Up until the release of the emails, Freeh had relied on the University Park police report and an interview (January 27) of a former police officer (likely Schreffler) to recount the incident.  The OAG's release of email evidence essentially forced FSS to revisit the 1998 incident.  The Freeh team performed  interviews with DPW program representative Jerry Lauro (Apr 26) and with a Centre County CYS representative (also Apr 26).  

The BOT threw Spanier  under the bus.

Interviews about the BOT's knowledge of the Sandusky investigation had been ongoing all month (Apr 5 to Apr 23).  The majority of the BOT claimed to have received knowledge of the Sandusky investigation through the May 12, 2011 briefing by Spanier and Baldwin.  A handful of trustees said they had no knowledge of the grand jury investigation until November 2011.  Most trustees recalled that Baldwin informed them it was the third or fourth grand jury to investigate Sandusky and that the incidents  didn't involve PSU. 

In summary, the BOT members dubiously claimed they were in the dark on the Sandusky matter and blamed Spanier for a lack of transparency and for not being inclusive as a leader.

May:  Investigation Wraps Up

According the end notes, only a few interviews were conducted on May 9 and 16 to answer lingering questions about the firing of Paterno.   On May 5, Frazier sent an email to Louis Freeh which confirmed the investigation was wrapping up.  An excerpt from the email follows.

Sent from my iPhone 

On May 5, 2012, at 9:52 AM, "Frazier, Kenneth C." <ken frazier@merck.com> wrote: 

I would recommend waiting a few days to see if Wick calls. If he doesn't, I'd call him 

saying that I suggested that you reach out to him based on my conversation with 

McGinn. I would also let him know ( as I told McGinn) that you guys are wrapping up 

the investigative phase. If they have something to say they should speak up now.

The Schultz File Bump in The (Rail)road
According to the Freeh Report, FSS had twice interviewed Kimberly Belcher (Jan 12 and Apr 12), who denied possessing the Schultz file.  Later that month, in response to a grand jury subpoena, Belcher testified that she turned over a copy of the file to the OAG in April 2012.  She also testified that Schultz provided the originals of the file to the OAG one day earlier. The Freeh Report lists the date of the Schultz file as 5-1-2012, confirming it was obtained after Belcher and Schultz had turned their files over to law enforcement.  

Note: OAG officials concealed the existence of the emails and the Schultz file from the public until the emails were leaked in June.  In May, the OAG changed the date of the McQueary incident from March 1, 2002 to February 9, 2001, however they did not say how the new date was determined.  

The information from the Schultz file very likely caused the Freeh Report to be significantly edited to include details from the notes and emails regarding 1998 and 2001 incidents. However it is also very likely that there was considerable debate on the risk-reward of using the handwritten notes of Schultz.  The notes from 1998 contained damaging information about CYS and DPW being told of many signs of child sexual abuse.  Emails reveal that on May 20th, Frazier, Tomalis, Freeh, and McNeil likely planned to discuss the updates to the Freeh Report and the (selective) use of information from Schultz's file.





The "you dun good" statement by Tomalis was a reference to Frazier lying to the Board about Freeh's investigation being very active and continuing into the fall.  The email between Frazier and Tomalis on May 4th showed that Frazier had lied because he expected the information to be leaked.

At the end of May, the final draft of the Freeh Report was ready, but all involved likely knew that it was light on facts.  It was very likely that the group began its public relations/smear strategy to cover for the deficiencies in the report.

June: Minimal investigation activity -- smearing begins

Little investigative activity took place in June 2012.  The end notes show the investigation circled back with a former finance officer on June 12th (likely Al Horvath) to obtain background information about VP Schultz.  

Evidence indicates that the efforts of the SITF and Freeh focused on making the public believe that honorable men like Joe Paterno and Graham Spanier had more concern for the well-being of a pedophile than the well-being of children.  They did that through leaking emails to the press.

On or about June 11th, existence of the emails was leaked to NBC news.   NBC cited "law enforcement" and "legal sources" (either of which could have been a loose reference to a Freeh team member) in its report.  NBC's report cited just the word  "humane" from the emails -- taking it out of context.  NBC's report was picked up by most papers, including the Philadelphia Inquirer, who reported that Paterno was involved in the email exchange.  The Inky's report appeared to be welcomed by SITF co-chair Ron Tomalis, who forwarded it to the Core Group of Frazier, Freeh, and McNeil.

The original reporting on the emails didn't gain traction initially because the Sandusky trial took center stage.  Interestingly, the trial had one very unexpected - and mostly unreported - result.

Last Bump in the (Rail)Road - Not Guilty, Count 7
Had the Sandusky trial gone according to plan, little changes would have been required to the draft of the Freeh Report.  However, the failure of a jury to believe McQueary's testimony about witnessing a rape likely blew a major hole in the Freeh Report's ability to condemn Paterno's actions in 2001.  The result was that Freeh retreated to using a non-specific passage in an email (of dubious provenance) to "reasonably conclude" that Paterno was solely responsible for stopping the report of the 2001 incident.  Freeh also played up the janitor incident and Sandusky's access to facilities, the latter claimed to be under the purview of Paterno, to condemn the football culture.

The media, who hadn't been paying attention to the details of the Sandusky case from the outset, persisted with the theme that football - and by extension, Paterno - was the reason Sandusky could commit crimes for so long.  A column written by Howard Bryant was embraced by Ken Frazier and likely others at PSU who had been looking to justify the firing of Paterno.



Before the month of June ended, the media returned to the story of the emails -- only with more details being released about their content.  Public opinion was turning against Paterno and Spanier, just as the SITF intended.

July:  Last minute interviews, and finalizing the report

Although Graham Spanier and his legal team had requested meeting with Freeh's team since the outset of the investigation, it didn' take place until July 6th -- about one week before the report was published.   While FSS incorporated some of Spanier's information into the chapters on 1998 (Ch. 2), 2001 (Ch. 4), and the BOT (Ch. 5), it is important to note that the investigators re-interviewed Cynthia Baldwin on July 9th.  The purpose of the interview was to rebut Spanier's statement that he didn't have knowledge of the 1998 incident. 

Freeh Report missed badly on the
testimony of janitor, Buck Petrosky

The other significant interview allegedly took place on July 2nd with janitor Ronald "Buck" Petrosky. Petrosky allegedly told Freeh's team that "football runs this place" and "going up against Paterno would be like "going up against the President of the United States."  However, it is highly probable that Petrosky wasn't interviewed at all.

EVIDENCE:  Pages 65 and 66 of the Freeh Report purport to be Petrosky's testimony at the trial, but there are at least eleven statements included on those pages that were not part of his testimony. In conclusion, it is almost certain that Freeh used the grand jury report to fill in the information and fabricated the quotes.   

Note: The Freeh Report also attributed direct quotes from Mike McQueary (p.67), who was not interviewed, to an interview on March 1, 2012. 

CONCLUSION: No NCAA Violations, No LOIC

The Freeh investigation ended without finding any more evidence of NCAA violations than it had in January.  In short, the NCAA had nothing to hang its hat (or cattle) on. The only NCAA related finding in the Freeh Report was an unsupported assertion that PSU's NCAA compliance staff was understaffed.

Both parties knew (from substantive updates during the investigation) that the Freeh Report would not include information to justify the NCAA penalizing PSU.   Instead, a media campaign would be used to prop up the Freeh Report.

PSU's PR Campaign "Justified" NCAA Sanctions

The inner circle had been working on the public lynching of Paterno, Spanier, and the football program all along.  As noted in a previous post, the outline for the NCAA Consent Decree (CD) was consistent with the key points of Erickson's five point promise.  

The CD was not a cram down...  

..it was the BOT inner circle handing a gun to the NCAA for the execution of the legacy of Paterno and to give PSU football the virtual death penalty (via the athlete transfer option).  The NCAA, who had a reputation as a weak enforcer, had no qualms about playing the heavy.   As part of the deal, the NCAA agreed to mention the death penalty threat and give Peetz and Erickson a pat on the back for cleaning up PSU when gave its press release on the CD.  

Freeh: made many false 
statements during presser

PSU's well crafted media campaign gave "legs" to the Freeh Report.   It started by allowing Freeh to conduct a grand standing press conference where he made statements that were not supported by any evidence (in Freeh Report or anywhere else).  The media and the public learned all they needed to know about scandal by watching "Freeh TV."  

No one in the media fact checked or disputed any of Freeh's statements.

Here is a sampling of false statements made by Freeh at his presser:

20:40- “the evidence clearly shows, in our view, an active agreement to conceal”

22:20 -”the rapes of these boys occurred in the Lasch Building”

26:20 – “the reasonable conclusion that we make is that all four individuals, that I’ve mentioned including Mr. Paterno made a decision – made a decision to actively conceal knowledge in the events of February 2001. I can’t parse between them, degrees of responsibility - what’s significant and shocking is that the four of them, the four most powerful people at Penn State University made a decision to conceal this information.”

30:08 – “Well we know when Mr. Curley speaks to the Second Mile he uses the same word, that they were worried about Sandusky showering with a boy because of bad publicity. So this 
notion of bad publicity, which is really disclosure, opening, and reporting, is a pervasive concern and fear by those running the university.”

30:55 - “There’s several e-mails – contemporaneous e-mails – in 1998, which we found by the 
way, which shows he’s (Paterno) clearly following the case. He’s clearly following the 1998 
investigation.”

33:08 - “The janitors, that’s the tone on the bottom. Ok. These are the employees of Penn 
Stare who clean the locker rooms in the Lasch building where young boys are being raped. They witness, what is probably, in the report, the most horrific rape, that’s described.”

36:20 – “He (Paterno) as someone once said, made perhaps the worst mistake of his life. We’re not singling him out. We’re putting him in a category of four other people who are the four 
major leaders of Penn State….He was an integral part of the active decision to conceal.”

The press ran with those soundbites and they became a substitute for the lack of evidence in the Freeh Report. 

PSU and the NCAA Respond to Freeh Press Conference

PSU's Response

Frazier: Praised Freeh investigation and
emphatically condemned PSU officials

According to the deposition of Frank Guadagnino (pages 18 and 19), a small group including Ken Frazier, Karen Peetz, Rod Erickson, Guadagnino, Tom Poole, and Richard Edelman met to review the Freeh Report and craft PSU's response.  The cabal who would go on to inflict more damage on PSU than Sandusky, gave the University the death blow.

Ken Frazier praised the Freeh Report for "following the facts" and for being "thorough and comprehensive." Frazier also emphatically condemned  Paterno, Spanier, Curley, and Schultz for their alleged failures.  Peetz piled on, stating Paterno's 61 years of service were "marred."  Erickson's pledge to implement all of the recommendations in the Freeh Report (just as he said he would in his November 2011 five point promise), left little doubt that PSU had totally accepted the Freeh Report.

 In the public's eyes, PSU's press conference confirmed the Freeh Report.  Dissenting views  were given no credence by the PSU administration or the media.

Two days after the press conference, Frazier emailed Peetz to suggest disbanding the SITF. It's mission was accomplished -- it had justified the firings of Paterno and Spanier by propping up the Freeh Report.

NCAA Response

The NCAA's response to the Freeh report was originally very cautious, stating that it would carefully review it and were awaiting PSU's response to the four questions in its November 17 letter to Erickson. 

"Like everyone else, we are reviewing the final report for the first time today. As President Emmert wrote in his November 17th letter to Penn State President Rodney Erickson and reiterated this week, the university has four key questions, concerning compliance with institutional control and ethics policies, to which it now needs to respond. Penn State's response to the letter will inform our next steps, including whether or not to take further action. We expect Penn State's continued cooperation in our examination of these issues."

PSU Substitutes Freeh Report & Pleads Guilty to LOIC

In November 2011, then PSU General Counsel Cynthia Baldwin was drafting a response to the aforementioned letter, but was told to stand down by the SITF.  Erickson and Baldwin were told that the response should wait for the outcome of its (Freeh's) investigation.

The deposition of Rod Erickson revealed that after the release of the Freeh Report, it expected to respond to the NCAA's four questions by early August 2012.   On July 17, 2012, Erickson made a statement that PSU was crafting a response to the four questions and then would "negotiate what would be appropriate sanctions."   

Erickson was lying about those two things (and likely many others).

An email dated July 18th from Gene Marsh indicated that penalties were already proposed by the NCAA as early as July 16th or 17th.   According to NCAA Counsel Don Remy, Erickson told the NCAA that PSU had accepted the Freeh Report and that the report contained evidence of a LOIC.  

Erickson's deposition confirmed Remy's position that it was the former PSU President who determined the Freeh Report constituted a LOIC.  Under questioning, Erickson stated he was familiar with the concept of a LOIC from reading sports pages and that PSU was in violation.  He then spun the story to state that it was the NCAA (Emmert) concluding it was the worst case of a lack of institutional control and that the University presidents "wanted blood."   

Contrary to the statements of PSU and Erickson, they were not bluffed and the NCAA wasn't holding any cards.   


Ed Ray's deposition and emails indicated that the talk about the NCAA EC favoring the death penalty was not true.  As Ray said, "if you told me the vote was 19-2 against, I wouldn't have been surprised."  

The truth as that the PSU BOT Executive Committee pushed the NCAA to play up the death penalty scenario and also asked the NCAA to give them props for improving governance and removing the former leadership.


The excerpt below is from an email exchange between Don Remy and Ed Ray, in which Remy explained how PSU asked the NCAA to play up the death penalty and its improvements in governance.   

The CD came down hard on Paterno, Spanier, and the Athletic Program and caused irreparable harm to the University's reputation.  By design of PSU, the CD penalties didn't inflict direct financial damage to PSU.  Collateral damage would be another story.

PSU Athletics Pays The Price

Evidence uncovered during my investigation revealed that Erickson was quite well versed in the financial affairs of both the University and the Milton Hershey Medical Center.   While he was a puppet of the inner circle, he was no dummy when it came to finances and the penalties bear that out.

PSU Athletics will bear the financial burden
 of the scandal for the next 35 years. 

Under PSU's plan, the $60 million in fines (and the subsequent payment of claims related to the Sandusky incident) wouldn't cost the University anything.  The fines, originally expected to come from football reserves,  would instead be paid by the Athletic Department through an interest bearing loan.  It is estimated that the University will earn around $44 million in interest over the life of the loan -- while the football program is saddled with the debt for 35 years.   That of course, is on top of vacation of wins, scholarship reductions, bowl bans, probation, a phony Athletic Integrity Agreement, and confiscation of bowl money by the thugs in suits who run the Big Ten.  

The litigation expenses for University officials (Curley, Schultz, Spanier, and Baldwin) are covered through directors and officers (D&O) liability insurance.  Additionally, the Erickson mistakenly assumed that the payoffs to the Sandusky claimants would be covered by its insurance policies.  The insurer pushed back, stating PSU's policies didn't cover abuse and molestation incidents. PSU sued and ironically, count 4 is "BAD FAITH."  Talk about irony. Litigation in that case is expected to begin in March 2015.

In late 2012 through 2013, Erickson and the inner circle must have believed it got a pretty good deal for the money it paid Freeh.  

It had blamed Paterno, Spanier, PSU Athletics, and the "football culture" for Sandusky's crimes, got the NCAA to gratuitously pile on, absolved themselves of any real responsibility or accountability, kept control of the University, feigned concern for child abuse victims, and won the support of the media and the public.  

 All for about $8 million. 

Call it a railroading.

Call it a framing.

Call it what it was...an act of bad faith by the BOT inner circle and the NCAA.

Analysis: 409 - NCAA & PSU Knew Freeh Report Was Wrong

In restoring the wins of the Penn State football program and Joe Paterno, the NCAA is tacitly admitting the Freeh Report was wrong.  But it knew that all along.

By
Ray Blehar

The restoration of Penn State's and Paterno's football wins is another loss in the NCAA's battle to remain relevant.  The NCAA's losing streak isn't over, but Mark Emmert seems to think he can still "bluff" the public into believing he and a small cabal at the top of the NCAA legitimately punished PSU.

Emmert still bluffing about NCAA authority

"An extraordinary fine is still in place.  Two years of bowl bans still went forward and the athletic integrity agreement still remains in place, the scholarship reductions...were nonetheless in place."

Logic dictates that yesterday's NCAA's settlement agreement to restore the wins was a tacit admission that the Freeh Report got it wrong.  Not that the NCAA would ever admit to anything logical (see the former NCAA rule on bagels and cream cheese).


If the Freeh Report was right, Paterno was aware of Sandusky's proclivities and covered it up for a period of 14 years.   Penn State had knowingly harbored a pedophile.  And if the NCAA's contention was correct, that Paterno covered it up so his teams would gain a competitive advantage by avoiding bad publicity about an assistant coach -- then Paterno was a truly despicable individual.  An individual who put his own self-interest above the welfare of children.

It all that is true, there is no way that the NCAA should have even considered restoring Paterno's wins.

But yesterday, we learned that the truth wasn't what Freeh or the NCAA said it was.

The truth  -- even though the NCAA is likely never going to admit it -- is that the Freeh Report was wrong (about just about everything) and so was the NCAA's half-baked reasoning that PSU gained some competitive advantage from avoiding (potential) bad publicity about a retired assistant football coach.

The truth also is that the PSU Board of Trustees Special Investigations Task Force (SITF) and the NCAA knew that the Freeh investigation did not uncover any violations of NCAA rules.  They also knew that the Freeh investigation found no evidence that Graham Spanier, Timothy Curley, Gary Schultz, and Joe Paterno engaged in a cover-up of Sandusky's behaviors.  The incidents in 1998 and 2001 were reported outside of the University -- in other words, there was no "concealment."

Evidence obtained in my investigation shows that the NCAA received substantive updates about the Freeh investigation.  In January 2012, the NCAA learned that PSU's Athletic Department officials were "fastidious about rules violations."    Upon learning it, they decided to "wait for Freeh Report."

Although the NCAA and the SITF both dubiously claim that they did not see a draft of the Freeh Report, the  substantive updates let them know in advance the report was going to be a big nothing-burger.

Based on the end notes in the Freeh Report and emails between Ken Frazier and Ron Tomalis, the Freeh investigation had essentially wrapped up in May.   The draft report was ready to go and all that was left was for the Sandusky trial to confirm the information in the draft was correct.

Jury's disbelief of rape report
 blew a whole in the Freeh Report.

In June, Sandusky was convicted of 45 of 48 counts.  It was a compelling set of verdicts -- unless you had already drafted a report that assumed a guilty verdict for Count 7 -- the IDSI (rape) charge in the incident witnessed by Mike McQueary.  It was highly likely that one of the key themes of the Freeh Report was that if Mike McQueary's testimony was compelling enough for a jury to believe it, then Paterno ignored a report of rape.  The acquittal likely blew up how the Freeh report was going to hang Paterno out to dry.

Instead of compelling evidence based on a Count 7 guilty verdict, the Freeh Report had to rely on flimsy email evidence and cherry picked comments that Paterno had influenced the alleged non-report of Sandusky in 2001.   Anyone who actually read the email (save for Sally Jenkins), knew that there was nothing in it.  Moreover, anyone who has actually read the Freeh Report knows there is nothing in it.  The only way the NCAA and the SITF knew that Freeh could put his sham report over on the public was to ensure that few people would read it.


The way forward was a well-choreographed, over-the-top press conference featuring Louis Freeh lying about what his investigation found and about things that never happened on PSU's campus.  An unfortunate, and perhaps planned, server crash kept the Freeh Report from being distributed in advance.

Frazier: Dishonestly
praised Freeh Report

The media ran with Freeh's (lies) soundbites.

Immediately following the press conference, SITF co-chair, Ken Frazier dishonestly praised the Freeh Report:

 “We thank Judge Freeh for his diligence in uncovering the facts over the past eight months and issuing such a comprehensive and thorough report...”

Penn State's dishonest commentary and acceptance of the Freeh Report opened the flood gates for opinion columns that were light on facts and high on condemnation of Penn State and Paterno.   It also cleared the way for the NCAA to pile on to Paterno and the football program.


The depositions of Donald Remy and Bob Williams revealed that the NCAA didn't accept the Freeh Report.  The deposition of Ed Ray showed he didn't bother to read the full report either. Instead, the NCAA used PSU's acceptance of the report and Rod Erickson's admission that the report was evidence of a lack of institutional control to justify sanctioning PSU.

The NCAA's restoration of the wins yesterday confirmed what it knew it knew in July 2012.

The Freeh Report was wrong about Paterno and Penn State.

NCAA's Dishonesty in Penalizing PSU Should Be Its Downfall

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

By
Ray Blehar

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

                                                                                                                      -- Sonny Vaccaro, November 10th, 2014

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

I disagree.  

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

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

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

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

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

The NCAA Failures in the PSU Case

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

On November 17th, 2011, the NCAA's letter to PSU cited numerous by-laws in forcing its way into the Sandusky matter.  A fair reading of the cited By-Laws (i.e., 2.1,  2.4,  6.01.1,  6.04,  10.1, 10.01.1,  11.1.1,  11.1.2.1, and 19.01.2)  reveals that NCAA rules or by-laws violations must exist that emanated from a lack of integrity, honesty, or values.  

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

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

Athletics Integrity Agreement, Scholarships, Bowl Ban

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

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

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

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

Mitchell's monitoring: an act of fraud?

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

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

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

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

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

Competitive Advantage - Vacation of Wins

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

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




















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

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

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

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

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

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

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

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

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

$60 Million Fine to Support Child Welfare Programs

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

McQueary's testimony about the 2001 incident
didn't convince a jury that a rape occurred.

The Sandusky trial resulted in guilty charges in 45 of 48 counts. The most incendiary charge, which undoubtedly put the focus on PSU, was that McQueary witnessed a boy being "subjected to anal intercourse by a naked Sandusky."  As the trial verdicts proved, there was insufficient evidence to support that charge. 

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

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

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

According to Ken Singer of Male Survivor.

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

Singer compared offender behavior to that of an alcoholic. 

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

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

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

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

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

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

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

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

Suppressed Evidence Undermines Consent Decree

Emmert & Nifong ignored exculpatory evidence to
press flimsy cases at PSU and Duke, respectively

To make an analogy, Mark Emmert behaved much like DA Mike Nifong in the Duke case. Like Nifong, Emmert had "DNA evidence" proving the accused were innocent, but persisted in pursuing the case because of the positive publicity it would generate for the NCAA.

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

But that's not all that was missing. 

Erickson:  Complicit in the cover up of
 information about the 2001 incident

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

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

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

Conclusion

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

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

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

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

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