Eileen Morgan: To Tell The Truth. Would the Real Mark Emmert Please Stand Up?

by Eileen Morgan

NCAA vs. PSU

In his letter¹ on November 17, 2011 to the Penn State Board of Trustees, NCAA President Mark Emmert wrote, “I am writing to notify you that the NCAA will examine Penn State’s exercise of institutional control over its intercollegiate athletics program, as well as the actions, and inactions, of relevant responsible personnel.  I also have notified the NCAA Division I Board of Directors of the NCAA approach.  We recognize that there are ongoing federal and state investigations and the NCAA does not intend to interfere with those probes.  Moreover, we respect that under our criminal justice system there is a defined process to ascertain the facts, as well as determine criminal guilt or innocence.  We will utilize any information gained from the criminal justice process in our review….”

Although Penn State did not violate any NCAA rules, it is clear that in November 2011, the NCAA planned to ‘examine’ for itself if Penn State (and relevant personnel) lacked ‘institutional control.’  It is also very clear that Emmert was initially going to allow due process to run its course and defer NCAA action until the criminal justice system (via the Tim Curley and Gary Schultz trials) determined criminal guilt or innocence.  So what happened to the NCAA’s probe and waiting for due process?  The very next day on November 18, 2011, the Penn State Board of Trustees signed Freeh’s engagement letter², authorizing Freeh and his team to investigate the matter.  Apparently, within one day, Emmert changed his mind and decided to hold off on an NCAA investigation until after Freeh disclosed his findings.    

Shortly after the release of the Freeh report, the NCAA Board gave Emmert the power to take corrective and punitive action relative to Penn State, forgoing the NCAA's normal investigative protocol.  On July 22, 2012, the NCAA announced that it would impose "corrective and punitive" sanctions against both the Penn State football program and the institution as a whole the next morning.  Additionally, the NCAA said that since Penn State had commissioned the Freeh report and accepted its findings, further proceedings would be redundant.  Emmert himself said that Freeh's investigation was far more exhaustive than any that would have been mounted by the NCAA.³  But, Emmert could not have known back in November 2011 that Freeh’s investigation would turn out to be ‘exhaustive.’  So why did the NCAA forgo their own probe in 2011?  Was there a deal between PSU and Emmert to use Freeh’s findings from the beginning?  And more importantly, why did Emmert renege on his promise ‘to utilize any information gained from the criminal justice process’ in his review before handing down unprecedented sanctions?  Certainly, the criminal justice system’s examination in the Curley and Schultz trials will be far more exhaustive and its determination of criminality or innocence will be legally binding.
¹ http://www.psu.edu/ur/2011/NCAA.pdf
² http://www.scribd.com/doc/129799160/Freeh-Engagement-Letter
³ http://usatoday30.usatoday.com/sports/college/football/bigten/story/2012-07-23/ncaa-penn-state-punishment-sanctions/56427630/1

It is interesting to note that questions 2-4 on page 3 of Emmert’s letter deal with the Grand Jury Presentment.  The Presentment listed allegations against Sandusky, as well as Curley and Schultz.  The statements in the Presentment were only allegations waiting to be proven through the justice system.  Therefore, how can Emmert expect PSU to answer questions regarding issues identified in the Presentment when those issues are only allegations and have yet to be verified in a court of law?

In addition, Emmert’s stretch of the bylaws’ context to encompass the Sandusky issues is unimpressive.  His particular attempt of equating ‘young people’ within the NCAA framework to that of children is overreaching to say the least.  The context of ‘young people’ cited in Bylaw 19.01.2 clearly means collegiate student-athletes.  However, on page 3, he discussed re-examining “behaviors that lift up ‘young people’ rather than making them victims.”   Clearly, no student-athlete at Penn State was a victim and this comparison was a feeble attempt to validate the NCAA’s jurisdiction in this matter.

Sanctions: Mark Emmert vs. Rodney Erickson

What is the truth regarding the Penn State sanctions and the threat of the death penalty?  Emmert maintains there was no such threat.  This 7/24/12 ESPN video⁴ (at the 3:00 mark), affirms that Mark Emmert denied that PSU was threatened with the death penalty, “No, it wasn’t that at all.”  In addition, the Sun Sentinel article ⁵ reveals that Ameen Najjar, former NCAA enforcement director (who worked under Emmert up until May 2012), addressed the Penn State sanctions in an Aug. 7, 2012 email to Nevin Shapiro:  "The Penn State deal is a travesty," he wrote. "The NCAA did not impose anything. Penn State agreed to and self-imposed the penalties, waved all due process and waived any right to appeal.  The NCAA had/has NO authority to impose any penalties in that situation and PSU's president sold the school down the river!"

However, according to a story written⁶ by Don Van Natta Jr., Emmert confirmed that a core group of NCAA school presidents had agreed that an appropriate punishment was no Penn State football for four years and that Emmert told Erickson in a phone conversation on July 17 that a majority of the NCAA's leadership wanted to levy the four-year penalty.
Gene Marsh, a former chairman of the NCAA’s infractions committee who defended former Ohio State coach Jim Tressel, had been hired by Penn State to help negotiate sanctions in the wake of the scandal. According to Van Natta, Marsh received a call in July from Donald Remy, the NCAA’s general counsel. Remy told Marsh that Penn State was facing a death penalty for multiple seasons.
Erickson said, “if Penn State did not agree to the sanctions, a formal investigation would have begun and the University could have faced a multiyear death penalty, as well as ‘other sanctions,’ including a financial penalty far greater than $60 million.”

⁴ http://www.youtube.com/watch?v=rKWIOqcvQZI&feature=youtube_gdata_player
⁵ http://www.sun-sentinel.com/sports/um-hurricanes/fl-nevin-shaprio-miami-ncaa-0403-20130403,0,3454721.story
⁶ http://espn.go.com/espn/otl/story/_/id/8199905/penn-state-nittany-lions-rodney-erickson-said-school-faced-4-year-death-penalty

At the 3:30 mark of the ESPN video, Emmert admits the death penalty was ‘unequivocally on the table’ and an ‘active option.’  He also states that the Board’s behavior and actions (signing the Consent Decree) were ‘clearly considerations in not applying the death penalty’ and he says had Penn State not been as ‘forthright, open and decisive’ he does not ‘know what the outcome would have been’ but suspects ‘it would have been significantly worse.’  This would at least suggest there was an unspoken threat of a four year death penalty from Emmert.

I find it interesting to note that Erickson said, “if Penn State did not agree to the sanctions, a formal investigation would have begun and the University could have faced a multiyear death penalty….” Perhaps we have been focusing on the wrong threat.  The threat has always been centered on the death penalty.  Maybe the threat of a ‘formal investigation’ gave Erickson pause.  Imagine if a formal NCAA investigation would have begun, taking into consideration the outcome of the criminal justice process as Emmert promised in November 2011.  This would have exposed the Freeh report for its fraudulent and baseless conclusions and the Board of Trustees would no longer be able to justify their rush to judgment in terminating Joe Paterno and Graham Spanier.  In all likelihood, Penn State would have been absolved of Sandusky’s crimes and able to avoid sanctions altogether.  Why didn’t Erickson buy time for the football program and allow the NCAA to formally investigate?  Did Erickson sign the Consent Decree to avoid an authentic investigation that would make the Freeh report vulnerable to review which would then confirm that the Board’s November 2011 actions were unjust?  Whether the death penalty was real or fabricated, is Erickson hiding behind it to justify the acceptance of the Consent Decree?

At about the 4:00 mark of the video, Emmert confirms the NCAA had two options: to investigate or hand down the Consent Decree.  He says a traditional investigation would ‘consume’ much time and energy with an ‘UNKNOWN OUTCOME’ so they opted for the Consent Decree.  Don’t all investigations begin with unknown outcomes?  Isn’t that the very purpose of a probe: to determine the facts?

Oh wait, I stand corrected.  If you are the Penn State Board of Trustees you can apparently pay for an investigation and determine your OWN outcome⁷.  Emmert did not want to launch his own investigation to determine the truth; he wanted to act immediately, saving precious time and money, and appease the masses, so he took the ‘known’ outcome authored by Louis Freeh and the PSU Task Force.  Again I ask, what happened to Emmert’s initial stance to wait for the “criminal justice system to ascertain the facts, as well as determine criminal guilt or innocence?”

At a closer look, the Consent Decree seems to satisfy both parties.  Emmert got to flex his NCAA muscles to a world-wide audience and Erickson avoided a formal investigation that would have exposed the Freeh report.  By the way, if Erickson was threatened, why hasn’t he and the Board fought the sanctions since they were negotiated under duress?  It appears he wants to keep the sanctions status quo to avoid an investigation yet at the same time cry foul at Emmert’s threat. 

⁷ http://emf.intherough.net/pennstate5.htm

Emmert vs. Emmert

In this 4/3/13 article in USA Today ⁸, Emmert is accused of evading a variety of scandals that took place on his watch, including LSU having systemic academic fraud in its football program.

Emmert disputes that.

"The facts speak for themselves," Emmert said. "We went from an athletic program that was underperforming dramatically in the classroom to one that was performing well."

NOW HERE ARE THE FACTS (shared with me by an anonymous source):

The academic fraud was uncovered in 2001-02—and LSU submitted a report in 2004--2 years later. Penn State submitted the Freeh Report just months after the story broke.

These are the graduation rates for the Football Student-Athletes at LSU under Chancellor Mark Emmert, and corresponding rates for PSU. (Source: The Federal Graduation Rates from the NCAA)

Recruiting Class Year              LSU                                     Penn State

1999                                        37%                                         76%

2000                                        38%                                         72%

2001                                        37%                                         75%
Cheating exposed at LSU

"The facts speak for themselves," Emmert said. "We went from an athletic program that was underperforming dramatically in the classroom to one that was performing well."

2002                                        42%                                         80%

2003                                        42%                                         77%

2004                                        48%                                         80%

Apparently Mark Emmert, the head of the NCAA, believes graduating less than HALF of his football student-athletes can be defined as “performing well.”

Well, here is a fact that definitely speaks for itself.  Emmert’s comment reveals nothing but hypocrisy.  The NCAA President wants us to believe that under his supervision, a 48% graduation rate exemplifies a football program that is “performing well”, however, the Penn State football program that has consistently graduated 75-80% of its student-athletes constitutes a “Football Culture Problem.”

Mark Emmert speaks out of both sides of his mouth.  He says he will utilize information gained from the criminal justice process in his review, and then denies PSU due process.  He says he did not threaten PSU with the death penalty, but admits a four year death penalty was on the table as a viable option.  He says PSU has a ‘Football Culture Problem’ yet says LSU’s graduation rate of about 50% LESS than PSU is defined as ‘performing well.’  

Would the real Mark Emmert, please stand up?

⁸http://www.usatoday.com/story/sports/ncaab/2013/04/02/ncaa-president-emmert-previous-cases-uconn-lsu/2047607/

A Closer Look At Freeh's Engagement Letter

 PSU Got What They Wanted, But Not What They Paid For

-By Eileen Morgan

An engagement letter defines the legal relationship (or engagement) between a professional firm, a law firm in this case, and its client.  The PSU/Freeh Engagement Letter¹ details the hiring of Freeh, Sporkin, and Sullivan, LLP (FSS) to perform legal services and act as legal counsel for the Penn State Board of Trustees’ Task Force (Task Force).

LEGAL REPRESENTATION

The contract reveals that Freeh had been engaged to ‘represent the Task Force.’  The engagement letter clearly specifies throughout the document that ‘legal services’ were to be rendered by Freeh (FSS), including: page 1, ‘Re: Engagement to Perform Legal Services’; part 1. Scope of Engagement, Freeh’s law firm will ‘serve as independent, external legal counsel to the Task Force to perform an independent, full and complete investigation’ and will provide a report that ‘will contain FSS’s findings concerning: i) failures that occurred in the reporting process; ii) the cause for the failures; iii) who had knowledge of the allegations of sexual abuse; and iv) how those allegations were handled.  FSS’s report also will provide recommendations to the Task Force to ensure that those failures do not occur again.’ ; page 5, part 5., ‘For purposes of providing legal services….’; page 5, part 7., ‘FSS will provide the above-described legal services for the Task Force’s benefits’; page 7, part 10., ‘FSS may terminate its legal services’; and at the bottom of page 7, ‘FSS is delighted to be asked to provide legal services to the Task Force’ and the Task Force was invited to call Freeh to ‘discuss any matter relating to (their) legal representation.’  

Why did the Board of Trustees’ Task Force need additional legal counsel and representation?   The Board of Trustees had already brought in the firm of Reed Smith to handle the Board’s legal affairs in relation to the Sandusky matter and its aftermath.  Why would PSU spend millions of additional dollars on a second law firm in November 2011 to investigate possible criminal matters (i-iv above) when the state of Pennsylvania had already charged Tim Curley and Gary Schultz with criminal wrongdoing and the investigation was underway and in the hands of the judicial system?  After all, Freeh had NO subpoena power, and Task Force’s Ken Frazier, who oversaw Freeh’s work, acknowledged that Freeh knew he would be unable to interview ANY of the key witnesses and had no legal authority in the pending criminal matters.

In other words, the Pennsylvania courts will lawfully establish the very findings (i-iv above), if any, that the Penn State Board of Trustees paid Freeh to determine, the difference being that the Freeh Report could ultimately cost the University $10 million and is NOT a legally binding document based on indisputable evidence.  The Freeh Report, regarding the PSU officials’

involvement, has been substantially refuted and would be thrown out of a court of law based on the very fact that Freeh’s findings and conclusions are unproven opinions that relied upon flimsy evidence. 

In essence, Freeh could not officially and did not actually render legal counsel or a legally binding report regarding the alleged failures at Penn State, and thus, failed to fully deliver the services paid for as itemized in the engagement letter.  If Freeh had truly been serving in the capacity outlined in the letter of engagement, the University would never have allowed him to pontificate as he did in a nationally-televised and sensational press conference without the benefit of the Board having even read his report.

A PLAN FOR VINDICATION

So why did Penn State agree to pay for a multi-million dollar report instead of waiting for the courts to LEGALLY determine if there was knowledge of sexual abuse and if there were failures of reporting that abuse, in accordance with the law?  Since Freeh’s report would have no legal standing and the courts would have the final say, it appears the Board essentially hired Freeh to produce an unofficial report that would vindicate their highly controversial terminations of Joe Paterno and Graham Spanier on November 9, 2011. 

First, Freeh was clearly representing the Board of Trustees, as indicated twice on page 1.  On page 2, Freeh’s team was ‘under the sole direction of the (Board’s) Task Force,’ meaning the Task Force ‘supervised, guided, and/or managed’ the actions of the investigation and possibly ‘gave explicit instruction(s)’ to Freeh.  On page 5, part 7., Freeh provided his legal services for the ‘Task Force’s benefit.’  In addition, the two parties would ‘consult one another’ during the investigation, as necessary, as indicated on page 6, line 1.   And finally, Freeh’s team was ‘looking forward to working with the Task Force.’  Based on this description of a mutual working relationship and Freeh’s legal representation of the Task Force, it begs the question: How could Freeh possibly ‘perform an independent investigation’ as promised?  Independent means ‘not influenced or controlled by others; not subject to another’s authority or jurisdiction.’  Freeh obviously did not perform an independent investigation, but rather, was under the authority of the Task Force who could control the content of the report.  Therefore, Freeh failed again to deliver the services paid for as itemized in the engagement letter.  

CALCULATED RESULTS

The results from the investigation were to be provided in a written report per the Scope of Engagement.  Remarkably, this report seemed to have predetermined results before the investigation even began.  Notice that Freeh is certain of what the report will contain.  FFS discloses that ‘the report will contain FSS’s findings concerning: i) failures that occurred in the reporting process; ii) the cause for the failures; iii) who had knowledge of the allegations of sexual abuse; and iv) how those allegations were handled.  FSS’s report also will provide recommendations to the Task Force and Trustees for actions to be taken to attempt to ensure that those and similar failures do not occur again.’  Freeh was careful to address the ‘sexual abuse’ as alleged since those charges were pending at the time, even though all of the other aspects of his planned “investigation” were more definitive, making no use of the word “alleged.”   And on page 2, Freeh states that ‘any discovered evidence of criminality’ and ‘if any victims of sexual crimes’ are identified, they ‘will be reported to appropriate authorities.’  Here, Freeh discusses his course of action ‘if’ he finds certain data.  However, as previously mentioned regarding the Scope of Engagement, he did not say his report ‘will contain any findings determined’ or ‘if findings are determined.’  Clearly, Freeh differentiates between what he might find and what he will find. 

On the date of this contract, November 18, 2011, Freeh seemingly guarantees to the Task Force that his future report will contain findings concerning the failures of the Penn State Officials in reporting sexual abuse, the cause for those failures, who had knowledge and how did they handle that knowledge.  He also guarantees his report will provide recommendations to ensure those failures do not occur again.  This is amazing foresight by Freeh since he did not actually know at the time if there even was a confirmed report of sexual abuse, let alone if there were indeed failures in reporting it. 

Although Freeh states at the top of page 6 that his team ‘does not promise any result’ he claims they ‘will make every reasonable effort to provide specific results.’  It is apparent, from the Scope of Engagement, that many of the findings of the Freeh Report, which was publicly released on July 12, 2012, had been premeditated from day one.  The results the Board wanted, regarding the top PSU officials, were apparently the results they were going to get.  Since the criminality of any wrongdoing by individuals was being handled by the judicial system, there seems to be only one motivational factor to pay millions of dollars for an unsubstantiated report: To justify the Board’s reckless and impetuous decisions to terminate Paterno and Spanier.  

Trustee Kenneth Frazier’s recent statement² appears to confirm the Board’s need for a predetermined outcome: “I believe that we are entitled to look at the words and contemporaneous emails and other documents that draw the conclusions that we need to draw as a university.”  What conclusions did the Board need to draw as a university?  The courtroom will determine the factual findings once and for all.  All the Board needed to do was to be responsible stewards of the University, exercise patience, and allow the legal system to establish the ruling regarding the Penn State officials. 

But Frazier actually answers that question by further saying, “We can take employment actions, we can take corrective actions without any need to resort to the so-called due process, reasonable doubt standard, and I don’t care if they are acquitted.”  Clearly, Frazier and the rest of the Board needed to draw certain conclusions to justify the Board’s ‘employment actions’ taken against Paterno and Spanier.

INSURANCE

What’s even more fascinating is that the Penn State Board of Trustees indemnified Freeh and his team for ALL costs, expenses, and judgments, including any amounts paid in settlement of ANY claims.  It was actually a brilliant plan.  The Trustees ostensibly paid Freeh millions to publish a report with (unsubstantiated) findings that legitimized their rash decisions of November 9, 2011, and by indemnifying him, provided Freeh with unbridled freedom to publicly spew fallacious and slanderous statements about Paterno, Spanier, Curley and Schultz.  Essentially, Freeh had carte blanche to produce findings and conclusions, regardless of truth, that would substantiate the Board’s previous actions without the liability of being sued.  By protecting Freeh from the fallout of lawsuits, the Task Force could contrive the results they desired while relieving Freeh of any accountability.  Should there be any legal action taken against Freeh and his firm, should there be any judgments against Freeh, and should Freeh have to spend any time defending himself to the University or the public, the tab for all of his bills will generously be picked up by Penn State. 

FREEH’S FAILURES ARE THE BOARD’S VICTORIES

Freeh’s failure to perform an independent investigation allowed the Task Force, overseen by Frazier and Corbett’s Secretary of Education Ron Tomalis, to supervise the probe.  And, Freeh’s failure to deliver a report that was legally binding allowed the Task Force to acquire what seemed to be its ultimate goal: exoneration for the Board.  This truly was a match made in heaven.

¹http://www.scribd.com/doc/129799160/Freeh-Engagement-Letter
²Ken Frazier’s statement at the Penn State Board of Trustees Legal & Compliance Committee Meeting, Hershey, PA-March 14, 2013