Saturday, January 17

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

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

Ray Blehar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Frazier: Dishonestly
praised Freeh Report
The media ran with Freeh's (lies) soundbites.

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

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

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

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

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

The Freeh Report was wrong about Paterno and Penn State.


  1. This is just more media frenzy with widespread misreporting on the proposed settlement. It is merely a proposed settlement, but most articles portray it as a done deal. There are several reasons to expect the judge to reject the proposed settlement as she did a previous proposed settlement.

    The judge wanted to examine the legality of the entire Consent Decree in court. The parties are doing an end run around that by declaring the original Consent Decree void but then keeping two of the major sanctions ($60 million fine, Athletic Integrity Monitor) in a new agreement. The parties are blatantly attempting to usurp the judge's authority to declare those two sanctions legal.

    The proposed settlement also includes an obviously false statement about "the NCAA's legitimate and good faith interest and concern regarding the Jerry Sandusky matter."

    That is clearly a lie based on lots of evidence obtained from the NCAA. The NCAA stated in an email they were bluffing Penn State (not good faith). NCAA Executive Committee Chairman, Ed Ray, stated in a deposition that he never read the Freeh Report or the Consent Decree before he approved it (not good faith). NCAA emails indicated they were mainly interested in using the Sandusky scandal to generate good PR for the NCAA (not out of concern for victims of child sexual abuse).

    I don't see how a judge would want to officially endorse such a huge lie.

    1. I'm not a legal expert by any means, but if the plaintiffs and defendants agree to settle, then the court pretty much is going to go along. The plaintiffs have agreed to drop their complaint.

    2. Ray - The parties agreed to settle a while back and allow the fine to stay in PA but Judge Covey rejected that settlement and wanted to examine the legality of the entire Consent Decree.

      She has the authority to reject this settlement and ample reasons as outlined above. Obviously, there is tremendous pressure for her to go along and not rock the boat.

    3. They agreed to settle on the fine, but Corman agreed with Covey that the case on the validity of the CD should go on. Now that Corman has retreated from that position, I don't think Judge Covey will continue on the case. I hope I'm wrong.

    4. Corman is an elected official. He should be held to account for his decision now to be complicit in the massive wrongdoings of the entire Sandusky/ PSU story.

      Corman is acting, I presume, in his public capacity and on behalf of his constituents. Can his constituents legally challenge his decision on this? Can someone challenge his authority to make such an about-face decision, PARTICULARLY since the PSU admin have STILL not had their day in court?

  2. With the arrogant statements coming from ncaa people the past two days, Corman and/ or Covey may end up continuing on with it. I hate how all along the press talks about the 45 out of 48 counts js was convicted of without tEllington the general public the 3 counts connected with the alleged sodomy charge. Js was found not guilty of doing. Linda Kelly never really had a wit news or victim in that case. She had a 24 yr old marine who was going to testify he had turned on all the showers heads when 14 and was running on the wet floor(rhythmic slapping sounds), sliding and catching himself on wall. He was going to say he hung out with js before and 10 years after and nothing sexual happened ever. He was going to a say js was the best thing that ever happened to him. LK did not call him to the stand because he could have hurt her whole case. Thus the 3 dropped counts. Lie detector test verified that was truth. Wish the press would print that!

    1. Ginny,
      Thanks for your post. I agree that the NCAA is wrong for making the statements about its right to pursue the case and that they need to be contrite and apologetic instead.

      As always, this blog strives to ensure that people are informed of the facts surrounding this case. In that regard, please be aware that Sandusky was convicted on 4 of 5 counts in the Victim 2 incident. The other two acquittals at the trial were on indecent assault charges against Victims 5 and 6.

      Also, the 24 year old Marine decided on his own not to testify on behalf of Sandusky and instead claimed to be one of his victims. In addition, every statement that he had made about the shower incident has proven to be inconsistent. He was interviewed four times by the police and agents from the postal inspection service and told a different story each time. His statement to Amendola's investigator was also inconsistent.

      In summary, he was not a reliable witness for either side.