Thursday, November 27

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.

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,, 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."  


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.

Sunday, November 23

Media Wrong About Bluff, Death Penalty, and NCAA Influence

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

Ray Blehar

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

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

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

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

Those stories are all wrong.

PSU influenced Freeh Report, not NCAA 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Louis Freeh:  All show, no substance....
...and the media keeps falling for his act.
In the end, PSU and the NCAA were banking on Freeh's reputation and well crafted media events to overcome the lack of evidence in the case.  As history shows, the Freeh Report could not be delivered to the media in advance of his press conference due to a (planned) server crash.  The media simply ran with Freeh's press conference remarks without doing any fact-checking.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Collaboration on Public Relations

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

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

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

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

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

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

Maintaining the Lies: The August 12, 2012 BOT Meeting

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

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

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

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

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

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

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

Peetz:  No mastermind.
As for Karen Peetz, she was not the mastermind behind any of this, but was willing to assist with the PR campaign to make her "leadership" of the BOT look good, while smearing Paterno and the football program.  

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

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


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

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

They failed.

Wednesday, November 12

PS4RS Statement: Freeh, NCAA did terrible disservice to children

In light of today’s news  about "collaboration" between Freeh and the NCAA, PS4RS has issued the following statement:

"The Penn State community and the wider general public were led to believe that Louis Freeh was hired to provide an objective, independent assessment of how a pedophile could have gone undetected so long; and to learn how to prevent it from ever happening again. Sadly, with today's news, we have learned that the real objective was to place the blame on Penn State football so that the NCAA could hand down harsh sanctions and thereby prop up its faltering image. In doing so, Louis Freeh obscured the lessons that should have been learned from this tragedy and did a terrible disservice to children everywhere.

Governor Corbett Doth Protests Too Much, Me Thinks

Note:  While I continue to analyze the latest filing, I provide this post for your reading pleasure.

Much like Keith Eckel's protest about being compromised, Tom Corbett denies "conspiracy" between his administration, law enforcement, and PSU in firing Paterno.  

Ray Blehar

Corbett:  Protest of conspiracy
between his administration,
the OAG, and PSU was most
interesting part of his latest denial.
Last Thursday, November 6th, recently defeated Governor Tom Corbett once again  downplayed his role in the firing of Joe Paterno.

"They probably shouldn't have fired him. They probably should have suspended him..."

What's this "they" stuff, Governor?  

You interjected yourself into the meeting to dissuade trustees from speaking out in support of Paterno.  

While the controversy over the firing has been discussed many times, I found the last two paragraphs most interesting.

In the interview, Corbett said the board of trustees - on which he sits as governor - never recovered from the decision to fire the 85-year-old coach, because it caused its focus to shift from where it should have been: Sandusky's crimes against children.

"There was no conspiracy from law enforcement or from the administration or from Penn State to do anything to Joe Paterno."

Corbett's voluntary denial of his administration's, law enforcement's and Old Main's "conspiracy" to railroad Paterno (and Spanier) was even more of a "tell" than his campaign supporter and colleague, Keith Eckel's recent protest about being compromised.

There is little doubt the AG and Law Enforcement shifted the focus to Paterno and Penn State and that Corbett had a key role in the firing.

Noonan (Law Enforcement) Shifted Focus to Paterno

Noonan: Condemnation
of Paterno and PSU 

was self-serving
Clearly, despite Linda Kelly's smokescreen of praise for Paterno doing the right thing, the AG was making the Sandusky case about Paterno and PSU from the outset.  Their motive was to deflect attention away from the failures of child welfare in 1998 and their own shoddy investigative work.  

It was no accident that Frank Noonan, the top cop, was outspoken in making his morality case against Paterno.  Noonan's bungled law enforcement investigation of Sandusky took nearly three years because of a failure to form a multi-disciplinary team (or task force), the failure to execute timely warrants, and the failure to follow leads.  

Without scapegoating Paterno and PSU, Noonan and OAG officials would have been in the line of fire and may have had to answer tough questions about the safety of children while the investigation lagged.  

Grand Jury Presentment Focuses on Roles of Paterno, McQueary

The Sandusky grand jury presentment was written to highlight the 2002 (sic) incident over all the other incidents in the report.  Placing the incident second in the chronology of the report made it appear that if PSU had done more about Sandusky, his crimes would have been prevented.  

In addition, the presentment downplayed the details of the Victim 6 incident, omitting the role of child welfare investigators in clearing Sandusky and ensuring he had continued access to his child victims.  

Kelly's AG Office led PR campaign against PSU.
The AG's press release about the presentment shows that it prioritized Sandusky's association with Penn State over that of The Second Mile, who was informed of the 2001 incident and did LESS than PSU.  Also, note that the victims are mentioned last in the release's opening paragraph.

"This is a case about a sexual predator who used his position within the university and community to repeatedly prey on young boys," Kelly said. "It is also a case about high-ranking university officials who allegedly failed to report the sexual assault of a young boy after the information was brought to their attention, and later made false statements to a grand jury that was investigating a series of assaults on young boys."

The presentment and the press release set the narrative of a PSU football sex scandal because it did not protect the names of the key witnesses -- Paterno and McQueary --  who were not facing charges.

University of Arkansas law professor, Brian Gallini, stated that Pennsylvania's presentment system bypasses many of procedural protections provided by federal criminal law. In addition to not protecting the names of witnesses and third parties, the state's system also does not provide an opportunity for witnesses and other parties mentioned by name to file any kind of legal response.

It was the AG's false statement that McQueary "saw a naked boy, Victim 2, whose age he estimated to be ten years old, with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky" that lit the inferno that engulfed Penn State.

The public would have to wait another month for the Curley/Schultz preliminary hearing find out that McQueary never saw a rape and didn't use the words, rape, sodomy, or any other explicit terms (p. 25 of transcripts) when speaking with Paterno.

By that time it was too late.  The false narrative was well established.

The die had been cast by the AG's false statement of a "rape" and the PSU BOT's failure to interview McQueary, which could have changed the narrative considerably.  None of the trustees I spoke with about the firing could explain why the Board didn't interview McQueary.

This lack of due diligence was not out of panic or a lack of time -- it was intentional.

Keep reading.

First, it is important to note that the public has not seen nor read Joe Paterno's grand jury testimony.  

Paterno's testimony was read into the record by AG attorney Bruce Beemer, on December 16th, 2011.  It is not clear the reading was entirely accurate, given that Schultz's legal team has motioned to obtain his tape recording, alleging an error in transcription. 

In Paterno's case, the simple transcription error of "it was" rather than "was it" would be monumental regarding his alleged statement:

"Obviously, he was doing something with the youngster. It was a sexual nature. I'm not sure what you would call it."

Paterno: Police interview shows faulty
memory of the details of 2001 incident
Most objective people who are reading this would conclude that "Was it" seems to fit better contextually.  In addition, it would be quite easy to transpose two words either from the original testimony or when Beemer was reading it into the record.

Accurate or not, it was clear that Paterno was equivocating about what he had heard from McQueary.   Later, when Paterno's October 2011 police interview was released, it was also clear that Paterno had a very poor recollection of the incident and what transpired in its aftermath. 

Here are Paterno's remarks about his interaction(s) with Tim Curley.

SASSANO: Okay, did you tell him that over the phone or did you have a meeting in person here at your house?
J. PATERNO: No, I told him over the phone.
SASSANO: Did you have a subsequent meeting at your house?
J. PATERNO: Oh gez, I don’t know, we.. he’s been over here, he comes over here for a lot of different reasons and something may have come up during our, he may have come over about a football schedule, he may have come over about something else and in the process we may have gotten in to it, I can’t say absolutely no and I can’t tell you I remember doing it.

SASSANO: Did Mr. Curley get back to you at some point in time after that to advise you what actions were taken…
J. PATERNO: No, no, I didn’t, I had other things to do, we had… As I said, Jerry was not working for me.

SASSANO: Subsequent, to that you’re saying Mr. Curley never got back to you, correct, to advise you?
J. PATTERNO: There was no need to get back.

As the full interview revealed, Paterno had no recollection of meeting with Gary Schultz or any recollection of any subsequent meeting or discussion with Tim Curley after his phone call to him.   However, Tim Curley testified (p. 182) to "circling back" with Paterno AFTER he had informed The Second Mile about the 2001 incident.  The emails exhibits - while yet to be authenticated -- also show that Curley had circled back with Paterno after the initial discussion.

This appears to be a case of the AG cherry-picking testimony that fits their narrative and throwing away anything that doesn't.  

The AG made the unconscionable decision to selectively use information of questionable accuracy (from Paterno), then bastardize Paterno's and McQueary's testimony into what an unwitting public believed to be  proof that McQueary told Paterno he witnessed a rape. 

The presentment also suggested a scenario where Paterno watered the incident down to "fondling" or something of a "sexual nature" - and that Curley and Schultz also watered down Paterno's testimony.  

This evidence  rejects Corbett's claim that the AG was not involved in a "conspiracy" regarding the firing of Paterno.  

The OAG's false statements in the presentment led to the public outrage and the firing.

PSU's Role

I have written much about PSU's illogical response to the grand jury presentment and their role in the public lynching of Paterno, Spanier, and PSU. 

The evidence shows the 11/9/11 decision to remove Paterno and Spanier was purposeful and not done out of panic.  Note: The BOT's decisions and actions in response to the grand jury presentment and its aftermath also are instructive in its acceptance of the NCAA sanctions.

Frazier:  On Nov. 6th,
cautioned BOT not to
 overreact to the
grand jury report.

First, the timeline does not support panic because the BOT held a conference call on November 6 and didn't make their decisions until the 9th.  There was ample time to interview Paterno and McQueary, however, the BOT did not respond to repeated calls by Paterno (who wanted to tell his side of the story).

In addition, according to a former trustee, Ken Frazier cautioned everyone to stay calm and not overreact.  Citing his experience with grand juries, he stated that grand jury indictments should not be taken too seriously and that prosecutors can say whatever they want.  Another reason panic can be ruled out is that the BOT had five days to gather information about the incidents in question.  

They chose not to do so.

As documented by Jay Paterno's latest book, Paterno had reached out to trustees Hintz and Joyner, who refused to meet with the legendary coach.  As noted earlier, they also did not interview McQueary, who was the key witness of the case.

These decisions were not made out of panic, as there was ample time to conduct a few interviews.  Incompetency can also be ruled out, as Ken Frazier successfully navigated the Vioxx crisis at Merck.  

BOT/Corbett Probable Scenarios

There are a few possible motives behind the BOT's willingness to throw PSU, Spanier, and Paterno under the bus.  Based on analysis of the evidence, I view the following three as probable.  There are other possible scenarios  that have yet to be ruled out.

From a financial perspective, Corbett could have threatened PSU with budget cuts similar to those he attempted in 2011.  Just one year's worth of cuts, if passed by the legislature would have far exceeded the actual costs incurred by PSU from the scandal to date.  Since the firings of Paterno and Spanier, PSU's state allotment has remained level.  Is that just a coincidence or did it result from the "change" in PSU's leadership?

The Commonwealth also possibly benefited financially from the BOT throwing PSU employees under the bus.  Had PSU pushed back and put the onus of the Sandusky crimes on the failures of the child protective system, the end result could have been lawsuits against Centre County Children and Youth Services.  Lawsuits alleging CYS negligence have been filed in Lackawanna and Berks Counties, as well as and other locales.

Surma: Removed Paterno and
Spanier without a vote.
Another scenario involves personal vendettas.  In October 2010, Corbett, while in one of Beaver Stadium's suites, was overheard stating that he would eventually get Spanier fired (after seeing him with his gubernatorial opponent, Dan Onorato).  

This website provided an exclusive report on Vic Surma's vendetta against Joe Paterno.  John Surma joined the BOT in 2007 and immediately began pestering Spanier to get rid of Paterno.   He was rebuffed by the former President, who had already reached agreement with the Board that Paterno should be allowed to retire on his own and that PSU didn't want a repeat of the Bobby Bowden "firing" at Florida State.

Surma wouldn't take no for an answer and the evidence in the case indicates that he and a few other PSU trustees may have started working with Corbett as early as March or April 2011 to engineer the removals.

In the immediate aftermath of the scandal, Surma took control of the Board and orchestrated the dismissals of Spanier and Paterno without bringing  it to a vote.  On December 2nd, the Executive Committee of the Board convened to hold a vote and make it official.

How it went down
According to a former trustee, Surma suggested that Paterno be removed and asked if anyone objected.  Before anyone could speak, Corbett, via speaker phone said:

"Remember the children. Remember that little boy in the shower."

The trustee said that Corbett's words made it difficult to object, given that anyone that did would have looked like they didn't care about children.

The New York Times reported the Corbett had been working the phones with Surma leading up to the meeting. 

A third scenario involves power.  As noted by former trustee Bob Horst, the power triangle at Penn State was President Spanier, the Chairman of the PSU BOT, and Paterno.  The removal of Paterno and Spanier would cut off the two corners of the triangle leaving the BOT chair the remaining or ruling force at PSU.  

After the "execution," to maintain its power, the Board would:

1. Only nominate and select weak University presidents.  Check.

2.  Emasculate the football program to ensure a coach would not be influential in University governance matters.  Check.

From Tom Corbett's perspective, he would benefit by not having Spanier to contend with in his dealings with PSU.  The Allentown Morning Call's article stated:

Playing a critical behind-the-scenes role in the deliberations of the Penn State board of trustees, Gov. Tom Corbett helped expedite the departure of one of his most powerful critics, longtime Penn State President Graham Spanier.
Now, with Spanier out of the picture, Corbett will have a chance to put his stamp on Pennsylvania's flagship public university.
Corbett will no longer have to spar with Spanier, a fierce advocate for public higher education, over Penn State budget cuts. And, as a de facto trustee, the governor will be able to weigh in on the search for Spanier's replacement.
It is not so far-fetched to believe that Corbett and the inner circle of the BOT cooperated in the removal of Paterno (and Spanier).

Additional Evidence

After the release of the Sandusky presentment and removal of Paterno and Spanier, PSU hired Louis Freeh to conduct an "independent" investigation into the matter.  Corbett took credit for recommending Freeh to PSU and remarked that Ron Tomalis would represent the "administration" on the Special Investigations Task Force.  

I'm very pleased with Ken Frazier leading that. Ken – I've only known him a short time – but I'm very impressed with his leadership. I'm very impressed that he has put together some people, including Ron Tomalis, on behalf of the administration and also as [state] secretary of education on that team, and the selection of Louis Freeh is I think a very good one." 

Freeh's condemnation and contempt for Paterno was palpable as he presented the finding of his investigation to the media.  The press conference was a well choreographed event, where a planned "hack" of Freeh's website precluded the distribution of his entire report to the media in advance of the event.  As a result, the full report only became available before Freeh took the stags and no one had time to read the lengthy report.

Interestingly, Corbett and Frazier media statements after the release of the Freeh Report both made it a point to state the report was 267 pages long -- as if the length of the report was indicative of thoroughness and/or accuracy.  

In the past year, considerable e-mail evidence obtained through the RTK efforts of Ryan Bagwell and BIll Cluck confirmed the collaboration between the Freeh group (the client of the PSU BOT Special Investigations Task Force) and OAG investigators.

There is little question that the PSU Administration (and its agents) were collaborating with law enforcement beyond what would be expected levels of cooperation.  

Collaboration or Conspiracy?

Under the PA crimes code, "conspiracy" has to parties engaged in the commission of a crime. As such, the firing of Paterno was not a criminal act nor does it appear that anything criminal took place prior to the legendary coach being removed.  

Unethical, yes. Criminal, no.

Therefore Corbett is correct that there was no "conspiracy" between the OAG and PSU involving the firing of Paterno -- it appeared to collaboration.

However, if the collaboration between Freeh and the OAG included commissions of crimes, such as evidence tampering -- among other crimes -- in the charging of Spanier (and/or further charges against Schultz) then a conspiracy would indeed exist.