Catching Up With Costas and the Paterno Lawsuit

After nearly 19 months of the media swallowing a false narrative - hook, line, and sinker - Bob Costas finally decides to give truth a chance.

By
Ray Blehar

Better late than never.

On May 29th, Bob Costas mediated representatives of the Paterno family on his show, Costas Tonight.  I was in the upper reaches of Pennsylvania and well "off the grid," so I missed the live showing.   And my first recap of the show was when I read John Ziegler's account on Friday afternoon.

While I won't go as far a John did to label it "vindication," it was a very well done show and definitely the most positive step from the media that the "truth" (not "truther") movement has seen to date.

Personally, I had long lost any hope that the media would change its view of the Sandusky scandal and am still quite convinced that the media will only come around when the Kane and other investigations conclude.  That said, the Costas Tonight show at least made an argument that there is another side of the story that needs to be heard.  At least, that's how Bob summarized his feelings on Morning Joe the following morning.

Highlighting Costas Tonight

Where's Mark and Louis?  One of the highlights of the first segment included Bob's announcement that NCAA President Mark Emmert and Louis Freeh were invited to participate in the discussion but declined.

Applying Today's Knowledge to 2001.  Bob Costas remains "guilty" of applying what we know about Sandusky today to the 2001 incident and implying that people should have reacted differently.   I believe Dan McGinn made the very strong case that former-FBI profiler Jim Clemente revealed that Sandusky was a sophisticated criminal who was able to fool not only Paterno, but the police and child protection caseworkers.  McGinn's statement that Sue Paterno stated she let their children and grand children play in the pool with Sandusky reinforced the idea that they had no idea about Sandusky's criminal behavior.

No Cover-Up.  Paterno family lawyer Wick Sollers made the case that a cover-up didn't make sense because Sandusky was not only retired from PSU in 2001, but was not even liked by Paterno.  Former Governor and Attorney General Dick Thornburg and Paterno family spokesperson Dan McGinn laid to rest any idea that Paterno and/or Penn State covered up Sandusky's crimes and the 2001 incident specifically.   Costas, McGinn, and Thornburg all stated that numerous individuals were told about the incident and no one even attempted to keep the incident from being spread.  Thornburg added that there was little evidence proving crimes were concealed.

The John Ziegler Moment:  At the beginning of the third segment, Bob Costas repeated one of John Ziegler's key points -- that McQueary did not say he was coerced or told to be quiet about the 2001 incident in his lawsuit against PSU.   One would think that being silenced about 2001 would be a key point in a "whistleblower" lawsuit. The fact is that Paterno and PSU did not ask or request that McQueary stay silent about the 2001 incident.

Doing the Minimum:  Costas  pushed the argument that Paterno and Penn State did the minimum possible in reacting to the 2001 incident and suggested that PSU should have cut all ties with Sandusky after that incident.  His point was not very well rebutted by the panel, who should have stated that it is a matter before the courts regarding whether PSU did enough and that the PSU intervention did stop assaults from occurring on campus after 2001.

The Paterno Legacy.   While Dan McGinn said that the legacy is important to the University, the former players, and its alumni, all that the Paterno wishes is that the truth and the facts will come out.   McGinn believes that in the end, a more "balanced view" of Paterno will be revealed.

The Paterno Lawsuit - Hits and Misses

Hit:  The lawsuit addresses the most obvious damages wrought by the NCAA, namely, defamation of Joe Paterno, pecuniary and emotional damages brought on by the false accusations in the report, and violations of due process rights of individuals damaged by the NCAA, including current and former PSU employees and football players.

Hit:  The lawsuit names Mark Emmert individually and as President of the NCAA as a defendant.  In addition, it names Edward Ray, Chairman of the NCAA Executive Committee as a defendant.  These two men ignored the NCAA's own procedures, then forced a member institution to not only violate its own rules of governance, but to forfeit its rights of due process.

Hit:  The lawsuit seeks a permanent injunction of the Consent Decree, as well as declaring the decree unlawful and void ab initio (from the beginning).  It also seeks compensatory and punitive damages.

Miss:  The lawsuit should have named PSU Trustee Kenneth Frazier as a defendant and co-conspirator.  Frazier should have been named as a co-conspirator in the civil conspiracy for his role as the co-leader of the Board of Trustees Special Investigations Task Force (SITF), who selected Louis Freeh and signed the contract.   Also, Frazier should be sued for his statements at the July 12, 2012 press conference that repeated the false allegations of the Freeh Report and placed guilt on Paterno and other PSU officials for concealing Sandusky's crimes.

Miss: The lawsuit should have named PSU President Rodney Erickson as a defendant.  In the time between the release of the Freeh Report and the NCAA's action, President Erickson could have and should have had the PSU legal counsel conduct a review of the Freeh Report and offer a rebuttal.   Erickson's failure to do so was deemed as tacit acceptance of the Freeh Report and "invited" the NCAA to levy sanctions.  While the Paterno team called the consent decree a "cram down," President Erickson was negligent in not referring the matter to the full Board of Trustees for a vote and violated PSU's own rules of governance.

That said, the lawsuit is a strong effort, although the Paterno team should have spared key members of PSU no quarter after their incomprehensible and irresponsible conduct in responding to the Sandusky scandal.  Had the Paterno team named Erickson and the Frazier in the suit, then it would have enabled discovery of evidence of negotiations and other communications between PSU, Freeh, and the NCAA.

However, I am also eager to see if the Paterno lawsuit plaintiffs will gain standing and then what transpires in the discovery process.

And perhaps we got a hint of what's coming in the discovery process from the current lawsuit.

The "Inside" Story of the Lawsuit

Point 54 of the lawsuit (page 15) indicates that the Paterno team was helped by a member of Freeh's investigation team or the NCAA because the facts presented in that passage reveal facts that only persons in those parties would know.   While you could make a case that the information came from a PSU person, such as a trustee, none of the trustee plaintiffs named in the lawsuit were part of the SITF, thus would not have been privy to those details.  Of course, there could be a "leaker" from within the SITF or someone closely associated with an SITF member.

Point 54 follows:

"54. Instead of demanding that Penn State provide answers to its questions, the NCAA 
waited for the Freeh firm to complete its investigation. Attorneys and investigators working for 
the Freeh firm collaborated with the NCAA and frequently provided information and briefings to the NCAA. During the course of the seven-and-a-half-month investigation, the Freeh firm 
periodically contacted representatives of the NCAA to discuss areas of inquiry and other 
strategies. The final report released by the Freeh firm states that as part of its investigative plan, 
the firm cooperated with “athletic program governing bodies,” i.e., the NCAA." 

In successful investigations and prosecutions of conspiracies and fraud, typically an "insider"provides the key evidence to break the case.  I suspect this passage of the lawsuit is particularly chilling to Mark Emmert, Kenneth Frazier, PSU BOT members, and, particularly Louis Freeh.

Freeh made his reputation at the FBI on the "pizza connection" case, which was broken open by getting FBI agent Joseph Pistone (alias Donnie Brasco) on the inside of the mafia.  Pistone was able to learn the command and control structure of the mafia and also was able to leverage Sicilian mafioso member Tommaso Buscetta into testifying against the mob.

I suspect that Louis Freeh understands that it is now just a matter of time before this whole charade is turned inside out.

The PSU-Miami Connection

Regardless of the success or failure of the lawsuit, it appears that key evidence showing collusion between Freeh and the NCAA has been found.  We also know, by virtue of the "Bagwell e-mails" that there was collusion between Freeh and the former officials in the PA Office of Attorney General.

Given that information, it is easy to connect the dots that indicate the NCAA may have used information obtained in the criminal investigation of Sandusky for its investigation of PSU.

In other words, the NCAA's use of the Freeh Report for the PSU investigation provides similar problems that surfaced in the NCAA's investigation of the University of Miami for using information from the criminal investigation of booster Nevin Shapiro.