Wednesday, November 5

NCAA emails reveal PSU not threatened with Death Penalty, no cram down.

Emails included in the latest Corman v. NCAA filing reveal that ability to sanction PSU was a bluff and that PSU had agreed to sanctions without threat of Death Penalty.

Ray Blehar

It is ironic that three vague e-mails, two of which did not even contain the name of Jerry Sandusky, were deemed as "smoking gun" evidence of a lack of integrity of four PSU leaders.

Yesterday, three rather detailed email exhibits involving the NCAA emerged that show a "small inner circle" within governing body of collegiate athletics knew it was violating its own rules when it sanctioned Penn State.  

The emails reveal:

1.  On July 20, 2012 a draft of the NCAA's press release on the sanctions was circulated for review  -- three days ahead of the alleged cram down of the NCAA Consent Decree.  In other words, the Consent Decree was not signed under threat of the Death Penalty.

3. The ability to sanction PSU was a "bluff" that Julie Roe and Emmert knew would only score a temporary victory for Emmert.  That "victory" was the expected positive public relations of the NCAA being tough on violators. 

4. The NCAA's approach was to get PSU to agree to sanctions based on ethical violations -- not rules violations that provided the football program with a competitive advantage.  Julie Roe expressed reservations that this could survive a review by the Committee on Infractions (COI). 

5.  Ed Ray believed that PSU's response to the 17 November 2011 NCAA letter would be integral to the process and turned over to the COI.

6. Julie Roe and Kevin Lennon also were waiting for PSU's response to the NCAA letter and expected it to be turned over to the COI.

No Death Penalty Threat

Emails from July 20 and 21, 2012, show that the NCAA had a near final draft of its press release circulating for review prior to the actual signing of the NCAA Consent Decree.  

ESPN's Don Van Natta reported that - according to Erickson and Emmert -- the Death Penalty was in play until sometime on Friday. The ESPN piece also reported that Gene Marsh, who was hired on July 17 by PSU to negotiate with the NCAA, was stunned to learn a "draft without the death penalty would be coming by email" on that Friday afternoon.  It didn't arrive until after midnight (i.e, Saturday morning)  -- according to Marsh.

Through the evening on Friday, Marsh sat in front of his laptop computer, continually checking his inbox for a draft of the agreement, known as a consent decree. "I was just staring at the computer, waiting," Marsh says. Until it arrives, it's not offered, he thought. "It was silly, but I just kept staring." Not long after midnight, the nine-page document arrived.

The timeline shows the near final draft of the press release outlining the sanctions was provided to NCAA officials at 8:31PM on 20 July -- in advance of the sanctions being provided to Marsh.

Again, this is three days before PSU allegedly was forced to sign the Consent Decree under threat of Death Penalty.  

NCAA Penalized PSU Football Without Evidence

As the next clip from the email shows, the NCAA could not have seriously evaluated the evidence in the Freeh Report that concluded a cultural problem at PSU enabled Sandusky's serial child sexual abuse.  Freeh's conclusion was based on the alleged failure of the janitors and PSU leaders to report abuse incidents in 2000 and 2001, respectively.  


In order to penalize PSU's football program, the NCAA and Freeh both ignored the evidence that showed the football program appeared to be an area of the University that didn't fear reporting Sandusky.  Both Mike McQueary and Paterno reported the incident to their superiors.  That is an irrefutable fact.

Ironically, the first "lie" in Julie Roe's email was that the football program was protecting its image by not reporting Sandusky.    

The second, and bigger lie, exposed in this email is that the sanctions were already established and negotiated well before the alleged "death penalty" threat.

Ability to Sanction PSU was the "Bluff"

While some might believe the NCAA was bluffing PSU when it threatened them with the death penalty, a more careful reading of the emails shows that the Emmert and Roe knew the ability to sanction PSU without it committing a violation was a "bluff."  However, the emails indicate that Emmert was willing to win a temporary victory (and garner the PR as a tough enforcer), all the while knowing it was a risk that the COI would back the sanctions.  

Actually, it was no risk at all to Emmert.  He could still claim he wanted to get tough with PSU, but couldn't do it without violating the organization's rules.  

In the end, Emmert and PSU figured out a way to clear the COI "hurdle."  The NCAA got an "illegal" agreement from Erickson and a small group of trustees to by-pass the traditional enforcement procedures.  This action violated PSU BOT Standing Order V. (1) (d) (vi), which requires the "to make decisions collectively as the governing body of the University."

The irony is overwhelming here.  The NCAA was penalizing PSU for a lack of integrity, but to do so, mandated that PSU ignore its own rules in agreeing to the sanctions!

Runaway Train

NCAA lawyer, Kevin Lennon, referred to the PSU case as a "runaway train."  He and Roe expected the case to eventually be turned over to the Enforcement staff and for the NCAA to stick to its traditional enforcement process after that.

Conversely, Julie Roe knew "the plan" was to negotiate with PSU on strong sanctions - even though the basis for penalties was "a stretch." However she still believed the COI would be involved eventually.   

Obviously, Erickson, Karen Peetz, and the rest of the PSU BOT "inner circle" offered little in the way of resistance to the eventual sanctions. 

Small Groups Behind Unprecedented Use of NCAA Consent Decree

It is important to note that a similar "small group" within PSU Board of Trustees (BOT) were privy to the details of the long-term collaboration (not cram down) that lead to the unprecedented NCAA Consent Decree.  

The NCAA leadership appears very similar to the Penn State Board of Trustees in that a small group appears to be in control and make the big decisions.  As this July 13, 2012, email between NCAA Chief Operating Officer, Jim Isch and Mark Emmert revealed, the NCAA EC was not yet in the loop on the PSU discussions.

Given that Ed Ray was not part of the discussions between PSU and the NCAA that led to the NCAA Consent Decree and phony Death Penalty threat, it comes as no surprise that he and Emmert didn't have their stories straight on the latter.

Erickson:  Ashamed of deal cut with NCAA?
The NCAA emails shown above  (and this video) reveal that the well publicized story (by the BOT and Emmert) of the threat of the Death Penalty was false -- and that PSU had negotiated its penalties.  

While I don't claim to be a body language expert, note that at 2:38 Erickson immediately looks down and away (an indication shame or guilt) and begins to play with the papers on his desk when he says: 

"We'll continue in dialog with them about what are..what are appropriate sanctions."  

As I wrote here -- and as was originally briefed by former Penn State great and NFL Hall of Famer, Franco Harris in January 2013 -- the NCAA Consent Decree appeared to be based on Rodney Erickson's November 11, 2011,  five-point promise.  

Former NCAA Enforcement Director, Ameen Najjar,  said that Erickson "had sold PSU down the river." 

Both the NCAA and Rod Erickson appear to be guilty of lying about the Death Penalty threat.


While the emails indicate that the NCAA's decision on the PSU case was about strengthening its public image as an enforcer.  An enforcer certainly has no qualms about being "accused" of threatening someone with harsh penalties.

In Erickson's and the "inner circle's" case, the threat of the Death Penalty gave them a means to hopefully escape the backlash of the PSU community, who they believed could be convinced that they cut the best deal possible.

We didn't buy it.

So, the question that remains is:  Why did Erickson and the PSU BOT "inner circle" willingly go along with the NCAA?

Their decision has cost PSU upwards of $170 million and has cost the University (and four men in particular) their reputations.  

To spend that kind of money and take that kind of hit to the school's reputation can only mean that there is something worse that the Board didn't want the NCAA or anyone else to find.

I will expose part of what that might be tomorrow. 


  1. Is anyone going to come forward and finally put the real truth to who is responcible for this story? If people on the BoT sold PS down the river with no real evidence to hold PS responcible they should be relieved of their positions. I, truely feel that this was just away to hold PS Football responcible because of people on the B who wanted to get rid of Joe and bring down the entire sports program.

    1. It's much more than just hatred of Joe and scapegoating the football program -- which was a diversion from the real issues in the Sandusky case.

      Lots of people involved in this mess -- all who benefited from the deflection of the blame to PSU Athletics.

  2. Any possibility Emmert took it upon himself with no other authorization to threaten the Death Penalty to Erickson? Emails mention he was ok with the risk of dealing with the COI to achieve the positive PR from the sanctions. Only way he avoids the COI is by getting PSU to agree to the sanctions beforehand. Possible he pulled out the Death Penalty threat on his own to ensure the sanctions were agreed to, otherwise he would look very foolish and incompetent if this went to the COI and determined they had no authority or jurisdiction to punish PSU.

    Also, the 3 day difference from the draft to the consent decree signing isn't a big deal. The draft was sent on a Friday night, no way anything gets done or announced until Monday morning when everyone will pay be attention. If the NCAA want a PR boost, they would never do anything over the weekend. They were just getting their ducks in a row for Monday.

    1. Rums,
      Possible, but not likely. Evidence shows the outline for the Consent Decree was written by Erickson & company in November 2011.

      Evidence also shows the press release was nearly completed BEFORE the NCAA sent the draft consent decree to PSU (alleged) negotiator Gene Marsh. As I wrote in January, Marsh was window dressing.

      Agree that no one wants to break important news on a Friday night and so the Consent Decree/dog and pony show was scheduled for Monday.

      Now at what point in all this did the alleged Death Penalty threat happen?

      Answer: Never.

  3. These emails seem very damaging to the NCAA. I expect the redacted parts would have been even more damaging. Admitting that it was a "bluff," or fraud, should render the consent decree invalid.

    I'm glad to see Penn State issued a statement finding the NCAA bluff "deeply disturbing." Perhaps PSU leaders are waking up and will stop working with the NCAA in these lawsuits.

    1. PSU's statement was BS. They had been negotiating the sanctions all along. As I wrote, Erickson provided the outline for the CD in November 2011 (in his five point promise).

      I'm not so sure PSU will stop working with the NCAA. Criminals usually try to stick to their story for as long as possible -- in many cases, even after they are convicted.

      PSU officials have a lot to lose when the truth is revealed. They will be shamed and humiliated. I expect them to hold out as long as possible.

    2. Ray - You may be correct that Penn State's public statement is BS but it might be used as evidence in court. It seems like this boils down to basic contract law that if one party deliberately bluffs, or deceives, the other party in a contract that results in the contract being voided and the bluffing party being liable for damages.

  4. Ray:

    Can you guess what is being labeled as "Redacted" in those e-mails from Williams and Roe?

    1. Top email the original press release is redacted. (Corman makes good point by including as a document that shouldn't be protected or redacted).

      2nd email - I have no idea, but will study further.

  5. Ray,
    Supervisory Grand Jury Judge Barry Feudale initiated an investigation in February 2013 into Grand Jury leaks during the Sandusky and DeNaples investigations. The investigation was to last six months. He appointed former AG prosecutor James Reeder and later added former AG prosecutor Kenneth Brown to assist.

    Feudale was removed from Grand Jury work following the discovery of an email to Fina criticizing former AG Linda Kelly and newly elected AG Kathleen Kane and flashing a knife in an AG office. Feudale also allowed Baldwin to misrepresent our three PSU administrators.

    Following the August 2013 completion date, there does not appear to have been a report filed or made public regarding the Feudale Grand Jury leak investigation. It seems inappropriate to name two former AG prosecutors to examine leaks from Grand Juries they may have appeared before.

    Without a report, it appears the beneficiaries of the leaks was OAG, lead by Corbett, Kelly and Fina, which could have been the source for the leaks.

    Currently, Fina was reported to have helped initiated a Montgomery County Grand Jury to investigate Grand Jury leaks from the offices of AG Kathleen Kane regarding a 2009 Philly probe..

    Do you have any information on the final report of the Feudale initiated Grand Jury leak investigation of 2013? Please keep up the great work.

    1. Elroy,
      I am in the dark as much as you are.

      I asked the PA OAG if they were still probing the grand jury leaks this past summer and they couldn't disclose that information.

  6. Hi Ray,

    Thank you for sharing your skills and time to write about this topic. It's relieving and comforting that someone is working to reveal the truth!

    I had one question as I was reading this post. I can imagine the NCAA responding to it by saying "the press release draft referenced in the July 20/21 emails was not the one we used. It included the death penalty; we only removed that after further negotiation w/ PSU." All we can see from that draft is the first sentence, which could have been used in either a press release containing the death penalty or not.

    What are your thoughts?


    1. At rbe July 23rd press conference, Emmrrt said that the sanctions were worse than any one or two year suspension of play. Recall Erickson told a story about a 4 year Death Penalty. They couldn't keep their lie straight.