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)

Steven Fink: The Penn State Crisis Annual Review, 2014

By Steven Fink

I was asked to write a brief review of milestone events in 2014, as I saw them, in the still going strong Penn State/Jerry Sandusky crisis. But first, let’s define our terms: A 17-person majority of the board of trustees would have you believe the crisis is over and it’s time to “move on.” Those individuals are naive and they are wrong. Worse, they are wrong at the top of their lungs. Moreover, they are the ones perpetuating the ongoing crisis, rather than doing anything proactively to resolve it.

Let me be clear: in the mid-80s – nearly three decades ago – I wrote Crisis Management: Planning for the Inevitable, the first book ever written on crisis management. It remains to this day the most widely read book on the subject. In it, I outlined the four separate and distinct phases of what I termed the Anatomy of a Crisis. Uninformed folks might have you believe that the school’s “crisis” began in November 2011, with the grand jury presentment, and ended soon thereafter. Far from it.  That was merely the Acute Phase of the crisis – the phase when chaos and turmoil reign supreme.  When that second phase ended, the University entered the third phase: the Chronic Phase. In this – generally the longest of the four stages – we encounter court actions (e.g., the Sandusky trial) newspaper exposes, investigations (e.g., the Freeh Report, the Thornburgh Report), mea culpas (e.g., board member Al Clemens public apology for his role in the rush to judgment), firings, promotions, course corrections, etc. This is where we remain mired today. Why? Generally because of the 17 recalcitrant BOT members who refuse to open the door and let the truth come out.

Looking back through 2014, I was surprised to see that I had written ten blog posts on this crisis and the NCAA’s overreaching power plays. (You can read them all at TheCrisisBlog.tumblr.com). The one that generated the biggest response was titled “17 Feathers for Penn State Board.” It was a reference to an old book by British author A.E.W. Mason, having to do with publicly naming a person a coward by presenting that individual with a white feather of shame. When the nine alumni-elected members of the board introduced a resolution to reopen the Freeh Report and who-knows-how-many-“sealed-documents” to finally get to the truth – the real truth – the 17 nay-sayers defeated the motion unanimously. For that I publicly labeled them all as cowards, and suggested they each receive white feathers.

Then, more recently, at what was supposed to be a specially called BOT meeting to discuss reopening the Freeh Report and getting a much-needed look at Freeh’s so-called “secret documents,” the 17 head-in-the-sand members, acting in unison as a group, boycotted the meeting entirely. What are they, children? What are they afraid of? The truth? Lemme break it down for you: when one person boycotts an event, you could make  a reasonable argument that it was done because of a strong philosophical difference of opinion. But when the entire group of 17 intransigent trustees fails to appear, it is clear they are lemmings that have lost their ability for independent thought and reason. Someone is calling the shots and these 17 white feather candidates are mindlessly jerking along on puppet strings.

 In my career, I have served on a number of boards, advised boards immersed in various crises, and currently chair the board of a private,non-profit charitable foundation. When a subject is presented with which I disagree, the last place I want to be is absent. No, I want to be there to express my opinions and maybe persuade some on the other side of the issue over to my side. To intentionally boycott a meeting because you’re afraid of the outcome of a vote is petulant and juvenile.

Consider: during this year, Judge Freeh tried to throw up as many legal road blocks as he could to keep his work secret, even in the face of evidence that he was in regular communication with the NCAA all during his investigation. How does this qualify as an “independent” report? Do I hear a growing chorus of “collusion”? But the board remained mute and did not support the actions to reopen the report and objectively examine its findings. If you’re trying to get to the bottom of a report that has been widely labeled as “fact-challenged” and “error-filled,” wouldn’t you want to see all the evidence to learn the truth?

Consider: during this year, the NCAA tried to throw up as many legal road blocks as it could to keep their documents private, even after it was revealed in a series of leaked emails that the NCAA bluffed a woefully naïve Penn State board into accepting the most draconian sanctions ever handed down by the sports authority, while suspecting all along that it did not have the jurisdiction to do so. In my most recent book, Crisis Communications, I argued that the events at Penn State were a criminal matter, not an NCAA infraction. If you’re trying to get to the bottom of the matter, wouldn’t you want to see all the evidence and maybe have those sanctions officially repealed and the millions of dollars in monetary fines returned? When the board took steps to block such actions, it put itself in the unimaginable position of opposing legal action that, if successful, would stand to benefit the university in a myriad of ways.

Feel free to disagree with me, but my experience tells me that the only reason most of the sanctions have been lifted early is because the NCAA wants this court case to vanish. In their presentation to the court, they actually argued that the suit was now moot because most of the sanctions have been lifted. That obvious ploy was spotted and quickly shot down by Pennsylvania Commonwealth Court Judge Ann Covey. Judge Covey now wants to see if the sanctions were even legal in the first place. (Good for her!)  And this challenge to the NCAA’s once impregnable authority is the very last thing the NCAA wants.

In court, the board (on behalf of the university) joined the NCAA. This mind-numbing action defies credulity, and there are only a limited number of plausible explanations why: Either the 17 board members are cowards (as I labeled them previously), they are in cahoots with the NCAA because they are afraid to rock the boat for fear of future actions, or they are just plain obtuse. You can cast your own vote.

But, thankfully, Judge Covey seems hell bent on getting to the truth and she is standing rock solid on this mission.

The NCAA said it was lifting many – but not all – of the sanctions against Penn State because former U.S. Senator George Mitchell, our “monitor,” gave us a gold star on his last report on the university’s compliance. But such moves will still leave the stigma of wrong doing intact. If things go well for the truth seekers, the court case could force the NCAA to acknowledge it was wrong, it had no jurisdiction to impose the sanctions in the first place, and for that reason the sanctions must be removed.

In the midst of this turmoil, the board adopted a new and completely meaningless “brand” for the university: “Penn State Lives Here.” When asked about it at the time, I replied “Penn State doesn’t need a new Brand, it needs a new Board.”

New Year’s Prediction: When the dust settles, as it most likely will this year, it will be time for accounts to be settled, starting with the removal of the most obstreperous board members.

New Year’s Wish: That the board wakes up before it’s too late and gets on the right side of history.

New Year’s Question: Which side will President Eric Barron come down on? He’s in a tough spot, to be sure: He is obedient to the board (who hired and pays him), but he can’t remain blind and mute forever. He asked to review the Freeh Report, which was a good step, but what is he planning to do with it…and when? In trying to answer that pivotal question, it would behoove us to recall that before coming to Penn State he was president of Florida State University – a school that essentially swept under the carpet damning reports and credible evidence that star quarterback, and eventual Heisman Trophy winner Jameis Winston, sexually assaulted a coed at the school. So Barron has familiarity with schools taking paths of expediency rather than paths of righteousness. Which path will he walk?

To those who holler into the wind that the crisis is past and let’s move on, I say this: If the crisis had ended in 2012, why are so many people still talking about it and litigating it now? When this phase of the crisis is finally over, the school will enter the fourth and final phase of the crisis: the Resolution Phase.

But, alas, we are a long way from that right now.

Steven Fink

President and CEO

Lexicon Communications Corp.

(www.CrisisManagement.com)

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