Steven Fink: 409, But No Joy

• As anyone who has read my most recent book, Crisis Communications, or followed my writings about the Penn State/Jerry Sandusky scandal elsewhere, or my public statements in numerous speeches and national media interviews can attest, I have long championed the reinstatement of the 111 vacated wins stripped from former Penn State football coach Joe Paterno’s record. The actual line I used many times was succinct: Explain history, don’t rewrite it. I pointed out that vacating those wins was purely a vindictive and punitive act by the NCAA.

  
  

  So, why aren’t I cheering the announcement that the NCAA and the Penn State board of trustees had agreed on a settlement (of sorts) that Paterno’s vacated wins would be reinstated and the plaintiffs (two state officials, not Penn State) would drop this portion of a precedent-setting lawsuit?

  
  

  Because this act settles nothing. If anything, it further obfuscates the heart of the matter. The still naïve Penn State board almost trampled each other in a stampede to vote their unanimous approval for this deal. This is exactly the same jump-on-the-bandwagon-mentality that got the school into this mess in the first place. This board is the gang that couldn’t shoot straight, writ large. 

  One of the purposes of the litigation was to expose the NCAA and its power grab for what it was. The NCAA sanctions – the infamous consent decree – never should have happened because the issues under review were criminal matters, not NCAA infractions. The NCAA had no jurisdiction, yet they grabbed it anyway, while the board was too numb to see what was happening. The court case, in part, was designed to prove that and, in so doing, have the court vacate the entire consent decree because the sports authority overstepped its bounds by a wide margin when it forced it down Penn State’s throat. There was every indication that Pennsylvania Commonwealth Court Judge Ann Covey was heading down that path. Every time the NCAA filed a motion to dismiss the case for various reasons, Judge Covey said this case is going forward. She was due to rule on the legality of the consent decree. Stated more succinctly, she was going to rule whether or not the NCAA had the authority to act in the authoritarian manner it did. And the absolutely last thing the NCAA wanted was to have anyone challenge — or worse, overturn — its authority.

  
  

  But with this “settlement,” that examination doesn’t appear likely to happen.

  There is a world of difference between having Joe Paterno’s win record restored because the NCAA never should have imposed that measure in the first place, and a “settlement” agreement. The tally may come up to the same impressive number of wins – 409 – but the methodology makes all the difference. And because of a “settlement,” the stench of wrong doing still hangs heavily in the Nittany Lion air.

  In the press release the NCAA issued immediately after this agreement, NCAA board member Kirk Schulz, Kansas State University president, boasted, “Today’s agreement with Penn State reaffirms our authority to act.”

  But Pennsylvania state senator Jake Corman, one of the lead plaintiffs, had a different – and woefully naïve – perspective. “This is a win,” said Corman.  “The NCAA has surrendered. The agreement we have reached represents a complete victory in the issue at hand – the consent decree is voided.… This validates our position that the rush to judgment against the Penn State Community was wrong….” 

  It does no such thing, Sen. Corman. It proves nothing, except how woefully naïve the board of trustees still remains. The board still does not understand any of the basic precepts of crisis management and crisis communications.

  
  

  Corman also said, “As we progressed through the case, it was clear that the consent decree could not stand up to the legal challenge.” I agree, which is why I think a settlement without a statement from the NCAA admitting that the consent decree never should have been imposed was another example of otherwise well-intended people not understanding the power of crisis communications. Once again, I think the NCAA played Penn State and the plaintiffs in this case like the proverbial violin. That’s why you can have blowhards like Schulz claiming complete victory. Schulz is correct: this is a victory for the NCAA. The Penn State board of trustees was once again hoodwinked by the smarter, slicker NCAA.

  
  

  The litigation was supposed to address the legality (or lack thereof) of the consent decree, of which the vacating of legitimate football victories was only a part. From the outset, the NCAA tried every trick up its sleeve to get the case thrown out, but they met their match in Judge Covey, who was determined to hear this case. At issue was nothing less than the NCAA’s testicles: Did the NCAA have the authority to impose the sort of draconian sanctions, especially given all the highly questionable goings-on behind the scenes to force Penn State into voluntarily accepting the sanctions? One high-ranking NCAA miscreant boasted in an email to chief thug, Mark Emmert, that they “bluffed” Penn State into accepting sanctions, fully believing that they didn’t have the authority to act.

  If, as Corman said, it was true that the “consent decree could not stand up to the legal challenge,” why on earth cave in on the case now? This should be the time to double down and press forward.

  This was a “back room” deal negotiated by a small group of the entrenched members of the BOT and the upper echelons of the NCAA. Only as a result of these legal proceedings did documents and emails come to light that revealed the NCAA’s unscrupulous methods in pressuring Penn State into accepting the consent decree. I have to wonder aloud what the NCAA promised – or threatened – to get to this “settlement.” It is important to remember that the entrenched members of the BOT were in lockstep with the NCAA all along. They and the university were never plaintiffs in this matter. The settlement vote of the board was unanimous, but I am surprised that the nine alumni members of the board went along with the vote. They perceived this as a victory; it was nothing of the sort.

  There will still be a stench attached to the number of wins. Those critics – and they are out there, believe me – who disagree with the reinstatement of Paterno’s wins will never acknowledge that they should be counted. They have already started beating the drum that the only reason the NCAA reinstated Paterno’s victories was to try to sweep the issue under the carpet before the just concluded NCAA annual meeting and convention.

  
  

  Yes, I wanted the vacated wins to be reinstated, but not like this. This settles nothing, except how inept the Penn State board continues to be.

  
  

  • JANUARY 19, 2015 (9:41 AM)

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.

By
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.

Eileen Morgan: Comment on Restoration of Wins

January 16, 2015

JOE PATERNO (409-136-3)

ALL of your wins, losses and ties centered on integrity, good sportsmanship, and Success with Honor.

We have always known that.

Vacated wins, loss of scholarships, and loss of bowl eligibility were the NCAA and the Penn State Board's smokescreen to blame one man's sickness on Penn State's football program and the impeccable career of Paterno.

Today's restoration of PSU's wins along with the previous revocation of loss of scholarships and bowl ineligibility, only further cement the fact that this was NEVER a football culture problem or a cover-up by Paterno. The NCAA and PSU Board have confirmed this fact today and have proven they needlessly marred the reputation of Joe Paterno, the football program, the students, the alumni and the entire Penn State community.

The revocation of these sanctions are not for 'good behavior.' It is because the truth has come out and has shined light on the NCAA and Board's nefarious deeds.

The NCAA insist they "acted in good faith." Anyone following this story knows their emails clearly show there was a lot of 'acting' but nothing in 'good faith.' They admitted in emails they questioned whether they actually had authority for sanctions and that asserting jurisdiction would be a 'stretch.'

The emails further show the PSU board collaborated with and was compliant with the NCAA.

Why would the PSU Board do this to their own school?

The truth is coming. The smokescreen is dissipating and justice will prevail.

The fight is not over.