Friday, March 9

Crime and Punishment: How Mark Emmert destroyed Penn State Football without a Scintilla of Evidence

What was the right choice in 1998?
In 1998, there was a confidential police investigation that included District Attorney oversight and an investigation by The Commonwealth of Pennsylvania’s Department of Public Welfare (DPW). In fact, the abundance of evidence indicates that the DPW, despite having access to their hotline whistleblower, a PhD psychiatrist, and her clear report that Sandusky was a pedophile in the grooming stages, and the police investigative actions, failed to do a thorough investigation. The DPW conducted a rushed “investigation”, brought in an unlicensed expert to conduct cold interviews and quickly filed a report with the DA indicating not only no crime, but no evidence of any behavior typical of a pedophile.
This report, no crime/no pedophile, was made by a government agency whose core mission includes protecting children in Pennsylvania. This report was filed despite hard evidence to the contrary by the whistleblower, Dr. Chambers.
Mr. Emmert penalties start in 1998 so he clearly felt that Penn State and the football program did not make the right choice at that time.
Likely, unless laws were broken and confidential information leaked, the football program did not have access to the details available to the DA and DPW. The Athletic Director and coach may (or one or both may not have) known that an investigation took place and Sandusky cleared. There is no hard evidence that they knew any details.
It should have been incumbent on Mr. Emmert to explain why he thought PSU had enough information in 1998 to make a right choice and what that choice should have been.
Let’s give Emmert huge leeway with his thinking about 1998. Let’s assume PSU should have assumed that the existence of an investigation of a senior employee alone was a basis for making a right choice in 1998.
So what is the most aggressive action that PSU could have taken in 1998?
PSU was Sandusky’s employer in 1998. They could have fired him based on unacceptable behavior by a senior employee (showering and physical contact with a minor). Since he was not charged criminally, the university would have been limited to a confidential severance agreement, that are typical and could have included severing all access and ties to the university. Perhaps paying for counseling and breaking ties with The Second Mile would have been included in the right choice at the right time. The victim was already under expert psychiatric care.
My guess is the actions above might have satisfied Emmert’s standard of the right choice. If done at the conclusion of the DA’s case, Emmert might agree that it would meet the right time standard.
What proof exists that “hero worship, the “culture of sport” and “winning at any cost” were motivation for PSU to not make the right choice at the right time in 1998?
Let’s move on to motivation for not making the right choice in 1998.
Freeh offered inconclusive emails that Joe Paterno might have had knowledge of an investigation. That proves nothing, even if true. Paterno would not have been entitled to any detailed information of a criminal investigation other than the conclusion.
Gary Schultz and Graham Spanier knew of the investigation and did not make the right choice at the time according to Emmert’s standard. But why didn’t they? What information did they have? Freeh doesn’t tell us.
All of the evidence in Freeh’s report indicates they believed it was not a serious matter, i.e. investigated and no criminal findings. Isn’t it more likely that their inaction was driven by inadequate information, poor judgment or other factors?
Where is the hard proof that allowed Emmert (Freeh) to conclude that the culture of hero worship and culture of sport was the motivation for Graham Spanier as top guy at PSU to not to make the right choice in 1998.
The Freeh report doesn’t provide any proof that Spanier and others believed they were not making the right choices in 1998. So Freeh speculates, and Emmert accepts, that the leaders conspired to not take more action to protect Paterno and his football program. Further Emmert does not focus on his fellow PhD University President, Dr. Spanier, but makes prejudicial unfair derisive references to the football coach (“hero worship”). Likewise, Freeh uses a bundling technique of “the four most senior leaders” of PSU, as if they are all equals and operated in concert…. both false inferences.
Speculation is not proof….not even close. I can speculate a higher probability reason that no action was taken in 1998 than the populist notion of all about protecting Paterno/football. Speculation is educated guessing. The penalties are too severe to be based on speculation of motive.
The burden is on Mr. Emmert to provide hard evidence and prove the motivation for PSU not making what he believes would have been right choices. If the motive was not football, the NCAA does not have a basis to act.
Freeh did not prove the motive. An opinion by Mr. Freeh is opinion not fact. There is no evidence in the Freeh report that proves or even suggests that protecting the hero worship culture of Paterno / football was a motivation for not making the right choice at the right times.
There is no evidence that anyone believed they were failing to make the right choice.
Freeh and Emmert downplayed the PA Dept. of Welfare, the adult experts in the room, whose investigator Mr. Lauro’s incompetence or willful actions missed leads that easily should have exposed Sandusky. Yet, we are to conclude that a football coach should have solved this puzzle, even after the DPW and DA gave it an all clear. Nonsense.
What would have been the adverse impact on PSU football and Paterno had the right choice, as inferred by Emmert, been made in 1998?
Short answer is Nothing.
Sandusky retires a year earlier and a strong confidential agreement is negotiated.
What would have been the impact on Emmert’s concept of “hero worship”, i.e. admiration for Paterno? Again nothing. Impact on winning football games? Nothing. Impact on recruiting? Nothing. Impact on football revenues? Nothing.
Conclusion for 1998 events: some argument but not a no brainer, that more “right choices” could have been made; zero proof that right choices not made because of culture of hero worship / football; zero evidence that making the right choices would have had significant damage to Paterno/football.
Any reasonable executive would easily conclude that not doing the right thing is the riskiest choice. Emmert wants us to believe that these smart guys got together and decided hey let’s do the wrong thing or this will embarrass Joe and PSU football. Utter nonsense and unencumbered by any facts.
Let’s look at 2001:
First, it’s not clear what all four knew from McQueary, as there are conflicting reports and a decade later of reconstructing very brief discussions. What is clear is that McQueary did not report seeing rape.
Let’s go with benefit of doubt again and say that despite it looking like a repeat of 1998 DPW conclusions, that PSU should have done more even though not clear who had what information.
The “right choice at the right time” might have been for PSU to report McQueary’s account to police, DA, and Pa DPW. Further the right choice might have included reopening the retirement agreement, regardless of criminal findings, and banning Sandusky access to PSU for life and leveraging TSM charity to do likewise. It might also include trying to identify and help the alleged victim. I’m presuming these potential actions would have satisfied Emmert as a right choice in 2001, especially if the incompetent DPW didn’t fail to properly investigate as done in 1998 and follow the lead to victims identified years later and break the case wide open.
PSU did not make those choices. Who/Why? Mr. Freeh’s report, not his opinionated executive summary, simply provides no evidence that the decision to not make the right choice was based on preserving Joe Paterno’s so called hero status or protecting their storied football program. Freeh cannot even determine who made the call to do nothing.
All of the evidence indicates that the reason for not acting was same as 1998. In this case Mr. Schultz testified that he felt no crime was committed. Spanier said it was not a huge deal to him and he thought it involved horseplay, something that was not out of character for Sandusky.
But who has the burden of proof here? Clearly it rests with Mr. Emmert to explain why and how he concluded that 2001 failure to make the right choice was all about football.
There are other very plausible possibilities such as simply poor judgment / different moral compass of Mr. Spanier. Others include a potential destruction of The Second Mile, probably one of the higher profile children's charities in the country. Another possibility is empathy for Sandusky and not wrecking his life because he pushes boundaries as concluded by the PA Dept. of Public Welfare in 1998. Clearly Schultz and Spanier may have concluded that it was 1998 revisited…that is boundary issues with no evidence of assault….the 2012 jury found Sandusky not guilty of the 2001 event. Spanier may have reasoned that informing Second Mile, banning children, and asking TSM to help Sandusky was a reasonable choice.
So given multiple potential reasons for not making the right choice at the right time in 2001, only one is offered up, that being hero worship/football, and no credible evidence to support that finding. Other credible possibilities are not investigated and ruled out.
What was the advantage to Paterno, the subject of hero worship, and the culture of sports by not making the right choice in 2001?
If the right choice was made, and the resulting investigation would have broken the case (no guarantee), it would clearly have been a huge embarrassment for PSU to have such a revered figure turn out to be a serial child abuser / criminal. It would have raised questions about 1998. Penn State would argue that 1998 was handled properly and eventually someone might have found the real scandal – the Pa Dept. of Welfare had the info to solve this case in 1998 and failed to do so.
Emmert concludes that Penn State University did not make the right choices at the right time in 2001 because doing the right thing would have damaged Joe Paterno and their storied football program. Usually, doing the right thing doesn’t destroy anything, doing the wrong thing is another story.
Ask yourself, had Penn State done the right thing in 2001, per an assumed but very strict Emmert standard, would football revenues, recruiting, reputation been severely damaged. You can only answer yes if someone could prove that they knew Sandusky was a pedophile long before 2001 and 1998. There is zero proof of that.
Mr. Emmert has levied the most punitive sanctions in the history of sports. The economic and collateral damage to students, businesses, athletes, students, state revenues, Big ten revenues, alumni and other is likely staggering. All of this might was directed at football because he declared football to be the problem.
Yet there is no proof that football nor some notion lazily and prejudicially called “hero worship” motivated the President of PSU to not make the right choices that Emmert felt should have been made. There is also no reasonable evidence that had the right choices been made, anyone other than Jerry Sandusky might have been seriously impacted outside of normal embarrassment when a high profile revered figure fails. Did Mark McGuire’s juicing bring down Tony LaRusso and the St Louis Cardinals?
Where there is an abundance of evidence over decades is that PSU football culture included strict policy enforcement for academics, recruiting, BCS leading graduation rates, and discipline such as benching some of their greatest players in bowl games for minor infractions.
Joe Paterno asserted late in his life that the Sandusky scandal was not a football scandal. Mr. Emmert, it wasn’t the football coach, who was making the wrong choices. If wrong choices were made the buck stops with your fellow PHD and University President. He too deserves the right to defend his actions as he maintains he made the right choices and was given no opportunity to testify.
So Mr. Emmert, the fact that you rendered a punishment that will create a decade of destruction without hearings, zero due process and only with a media windstorm in your sails says one thing:
Mark Emmert, YOU made the wrong choice at the wrong time. You had to have football as the motive; otherwise you could not justify your jurisdiction.
There is no reason to believe that had Sandusky been a Professor of Biology that Spanier would have done anything differently. There is strong evidence to support that speculation, since a non-football charge of sexual abuse was presented to Spanier and he rejected it outright.
Someone, or some Court needs to stop you before more damage is done. The sanctions were a gross overreach based entirely on assigning a motive rather than proving one.
Suspend these sanctions and conduct open hearings to get the facts as to what motivated Penn State University to do less than what you believe should have been done. If the motive proves to be football protection, reinstate the sanctions. If you can’t prove it was football/sports driven, revoke the sanctions, apologize and go back in your box and reinstate due process at the NCAA.
Thomas Greene Six Mile South Carolina

NCAA sanctions: The third option
FROM Reed Meyer, Ph.D. Penn State 1993 to the PSU Board of Trustees 
Continued from page one 
Is there surely not a third option on the table?  Why is the Board apparently not considering the third option of fighting the NCAA in federal court?  Would Penn State not stand a very good chance of winning such a lawsuit?  One would think that a federal court would be sympathetic to Penn State for several reasons.  
Penn State can argue that the NCAA should be treated as a state actor for these purposes, by virtue of its appearing to now rule on criminal-only matters and by virtue of its national monopoly (it is unreasonable to expect a competitor organization to successfully out-compete the NCAA at the large college level). As a state actor, the NCAA is culpable of not following its own bylaws, of not following due process, and (if attempting to change its bylaws retroactively to justify sanctioning Penn State) of unreasonably changing its bylaws ex post facto.  
The NCAA also violated its more-democratic infractions procedure, replacing it with an ad hoc authoritarian system consisting of a single man passing judgment and imposing sanctions.  It based its sanctions on a single document, which one of its own authors has stated was never intended for such a purpose, and which has been accused of drawing serious accusations against Penn State from extremely thin evidence.  There is also the question of whether the NCAA illegally strong-armed Penn State into a hasty acquiescence.  A federal lawsuit would also allow more opportunity and more time for proper investigations to take place.  Members of the legal profession across the country are apparently eager to see this play out in court, as they are worried about the precedents that would be set if the NCAA's actions were to go unchallenged.

You, the members of the Board, may have sound reasons for why you do not think it wise to pursue such a third option.  Because this decision impacts the University's reputation in such a significant and lasting way (see below), I feel that you should share with the members of the Penn State community your reasoning against this third option.

If you believe that a lawsuit would further drag down the reputation of our University, I acknowledge that line of thinking, but let me show why I think that should not be a concern -- that, if anything, the reputation would only improve.

I share with you a great concern for our University's reputation, and I am not motivated solely out of love for the University; there are also selfish reasons.  I am concerned for my and my fellow graduates' future employability; in multiple occurrences appearing in the media, employers have threatened to fire or to not hire Penn State graduates solely because of a perceived group culpability in the Sandusky affair.  The value of our diplomas may also be weakened if the University's stained reputation results in difficulties in attracting a talented faculty, or in attracting research funding.

The Board's actions, thus far, seem to indicate that its members believe that the best way to improve the University's reputation is to "put things behind us" as soon as possible.  But there are problems with this approach.  In the public's eye, the Board's and administration's actions have been akin to accepting blame.  By appearing to accept blame, the stain is not reduced; it deepens, and it PERSISTS.  There is a good chance that the University's name would have been partially if not fully cleared, had time been allowed for a thorough, proper investigation to have been conducted -- it is therefore doubly regrettable that a university should "admit guilt" when there may have never been a genuine reason to.

History has shown time and again that when an entity appears to accept blame, its reputation, with regard to the event in question, does not significantly improve.  The event will slowly disappear from people's minds over time, but that is true whether blame is accepted or not, and, regardless of the passage of time, people will return to a negative view of the entity whenever they are reminded of the event.  History has also shown that people who had, a priori, a negative view towards an entity will simply reinforce that view when that entity appears to accept blame.  History has furthermore shown that some people react more emotionally than rationally when it comes to allegations of failing to protect children.  For these reasons, it is futile to accept blame without good cause, or to rush to "put things behind us".  In essence, there is no pleasing certain people, and therefore one's reputation cannot grow worse by insisting on due process; and
the other group of people, the more rational or sympathetic ones, will be understanding when you call for fairness and the facts in order to make a sound decision.

I believed in November of 2011, and continue to believe to this day, that the Board's best course of action for protecting the reputation of the University should have been to stand firm in the face of all onslaughts, from the media or from other quarters.  It should have insisted on following due process, and on neither taking action nor publicly voicing opinion until a thorough investigation had been conducted.  The Board should never have imposed on itself the conditions it did when it commissioned the Freeh report.  It should never have accepted or appeared to accept a report that was so lean on facts and so heavy on inflammatory accusations mostly unsupported by facts.  It should have fought any sanctions based on such a flawed report.  It should have only attempted to "put things behind us" when all the facts were truly in.

If unwilling to fight the NCAA in federal court, is it possible for the University to issue language such as, "The sanctions of the NCAA are accepted under protest, and without definitive evidence of any wrongdoing on the University's part"?

Sincerely yours,

Reed Meyer, Ph.D.
Penn State 1993

1 comment:

  1. This is awesome and addresses my concerns...and why I have been spending a lot of time reading the reports, depositions, etc. I care about the reputation of the University and my degree. If Joe is cleared, great. But I care more about PSU...and my hard-earned degree and it's reputation.

    Class action lawsuit from alumni? Against the BoT?