Spanier Complaint Details Freeh's Lies, Strikes Back at Frazier, Peetz, & Masser

Spanier's complaint not only exposed Freeh's lies, but seeks to expose his phony investigation racket.  It also struck back at PSU officials for parroting Freeh's groundless and defamatory findings -- in clear violation of Spanier's separation agreement.

FOR IMMEDIATE RELEASE

March 18, 2015

Contact: Libby Locke
Telephone: 202-628-7400
Email: press@clarelocke.com
Website: http://FreehReport.com

Former Penn State President Graham Spanier Files Defamation Complaint Against Louis Freeh

Suit asserts Freeh’s $8 million “Report” was a media-driven product that disregarded evidence and reached false and defamatory conclusions regarding Dr. Spanier

STATE COLLEGE, PENNSYLVANIA – Dr. Graham Spanier, former President of Penn State University, filed a 140-page defamation complaint today against former FBI director Louis Freeh and his law firm, Freeh Sporkin & Sullivan LLP, in the Court of Common Pleas in Centre County, Pennsylvania. The case centers on false and defamatory statements made in the “Freeh Report,” which was commissioned by Penn State University’s Board of Trustees in the wake of the Jerry Sandusky scandal.

In the filing, Dr. Spanier alleges that Freeh and his law firm knowingly and maliciously published false and defamatory statements about him in the Freeh Report, causing significant damage to Dr. Spanier’s reputation – harm which was compounded by Freeh’s promotion of the report in a nationally televised press conference. The complaint alleges that Freeh recklessly disregarded evidence in the final report, including the results of a comprehensive federal investigation that vindicated Dr. Spanier. The complaint also alleges that the 267-page Freeh Report was virtually complete before Freeh ever interviewed Dr. Spanier, which occurred only four business days before the report was issued.

“Dr. Spanier’s complaint demonstrates that the Freeh Report was little more than a public relations product that expediently scapegoated a few individuals and was designed to knock the controversy out of the news as quickly as possible,” said Libby Locke, attorney for Dr. Spanier. “We intend to demonstrate in this suit that through misdirection and strategic omissions, the Freeh Report intentionally reached the false and defamatory conclusion that Dr. Spanier had knowledge of information and events that he did not.”

In the suit, Dr. Spanier seeks to reclaim his reputation and to establish Freeh’s liability for the substantial harm that Freeh and his law firm have caused. Dr. Spanier is asking a jury to award compensatory and punitive damages for the reputational and economic harm caused by Freeh’s defamatory statements.

Spanier’s complaint also brings claims for multiple breaches of contract by Penn State, including the University’s efforts to publicize the Freeh Report, disparaging statements about Dr. Spanier by certain members of the University’s Board of Trustees, and other breaches of Dr. Spanier’s separation agreement. The complaint also includes a count for tortious interference of business relations against Freeh Group International Solutions, LLC, Freeh’s consulting firm, for interfering with Dr. Spanier’s contracts to perform national security work for the federal government.

“We will show that the predetermined findings of the Freeh investigation were not supported by evidence or fact,” said Locke. “As a result, Dr. Spanier’s reputation was severely tarnished. He is filing this complaint today to prove that Freeh’s conclusions are false and defamatory and to restore the reputations of those who were falsely targeted by Freeh.”

Dr. Spanier is optimistic that this lawsuit also will shine a light on Freeh’s lucrative business model of purported “investigative reports” for his clients embroiled in controversy. In the case of Dr. Spanier, the Penn State Board of Trustees needed Freeh to assign blame for Sandusky’s behavior and to justify the hasty personnel decisions made in the aftermath of the Sandusky scandal. The Freeh Report falsely blamed Dr. Spanier, other University officials, and Coach Joe Paterno in a misguided effort to enable the University to compartmentalize responsibility for Sandusky’s conduct and to bring closure to the scandal. 

The lawsuit is Docket Number 2013-2707.

Further information about the lawsuit may be found here: http://FreehReport.com  

Bad Faith, Addendum 2: Unintended Costs of the Railroading of PSU

When the BOT inner circle reached its "bad faith agreement" with the NCAA on the Consent Decree, it is likely that they thought the University would incur very little in the way of future expenses.  They were wrong, mostly because they believed their own hype.

By
Ray Blehar

According to PSU's progress web-site, as of June 30, 2014, the University incurred $79.7 million in expenses not including settlement of claims related to the Sandusky crimes.  Adding the settlements of $59.7 million, the current tab for the scandal is $139.4 million.  However, that does not include the additional $36 million in payments/donations owed from the lNCAA/Corman settlement.  

Adding those brings the total cost to $175.4 million... and counting.  But that figure is an illusion.  The cost to PSU is far lower -- but still a lot more than the BOT inner circle ever expected.

The BOT Inner Circle Misjudged Costs of Scandal

Based on the earliest accounting available, it is reasonable to estimate the scandal's expenses were in the $15 million dollar range when Erickson signed his name on the dotted line on July 23rd, 2012.  

It is also very likely that he and the cabal of Board members didn't believe that the scandal expenses would move much farther beyond that.  They believed they convinced everyone that there was a PSU cover up and that all future litigation in the matter was closed. 

To review, the BOT inner circle:

• Created a narrative that the PSU "culture" was to blame for enabling Sandusky's crimes;
• Hired Louis Freeh to conduct a phony investigation and create a report to justify their actions of firing Paterno and Spanier -- and to further indict the PSU culture.
• Got the NCAA to repeat the "culture" narrative and to praise them for their actions that (allegedly) "saved" PSU football; and, 
• Attempted to cut off future challenges to the consent decree by giving up PSU's rights to appeal to the NCAA or take other legal actions. 

The BOT inner circle, apparently believing the stuff they were shoveling, likely thought the only things left to happen after the consent decree was signed was that the "moving forward" train would leave the station and that everyone would jump on board.   

As Karen Peetz mistakenly stated, "by the time someone gets here in 2014, it will just be a distant memory." 

Their mistaken beliefs would cost PSU millions.

OOPS!  The Scandal Won't Cost PSU Anything

Unfortunately, the "smartest people in the room" were not only foolish to believe their own hype about the PSU culture being responsible for Sandusky,  but they were also foolish enough to believe their faulty assumptions about the costs of the scandal.  

According to a media source, PSU spokesperson David LaTorre stated that the scandal wouldn't cost PSU anything.  The University stated the situation a bit more eloquently.

"The University maintains General Liability and Directors & Officers insurance policies which are expected to cover the defense of claims brought against the University and its officers, employees and trustees. Legal and other expenses not covered by insurance are expected to be funded from interest revenues related to loans made by the University to its self-supporting units. As a common business practice, the central University -- which has the ability to finance bonds backed by its credit rating --is able to loan its self-supporting units money for special projects. These units do not have their own borrowing authority, but they are all part of the University's credit profile. As an example, in the case of the most recent $100 million Beaver Stadium expansion, the University bore the risk to finance a bond at a variable rate during a favorable financial period. The University then loaned funds at a fixed interest rate to Intercollegiate Athletics, which then repaid the loan with interest from its ticket sales, club seats leases, sponsorships and other income generated. The interest from this loan is then placed into a fund that can be used for more projects in the future or in emergency situations. Therefore, uninsured expenses can be covered by this interest and will not be funded by student tuition, taxpayer funds or donations. Compensation paid to all such attorneys, consultants and firms will be regularly updated and all expenses are audited."

The interest expected from the series of loans to PSU athletics is estimated at $43 million over the terms of the loans.  As the accounting shows, however, the university did not issue bonds and instead used funds from the institutional support budget.  That decision was likely driven by the fact that there were too many eyes watching the Board's every move.

Regardless of how the costs were funded, they total at around $32 million -- which is a lot more than zero.  

Sandusky Injury Claims ($59.7 Million and Counting)

Lubert's sub-committee blew it.

The legal and compliance sub-committee of the PSU BOT culminated research it began in February 2012 and in October 2012 the Board approved a resolution which stated the University was liable for injuries suffered as a result of the crimes of Gerald Sandusky.  Among the many reasons why this was a bad decision, the foremost was that the decision was made under the premise that  PSU's insurer would reimburse the University for the claims (up to the specified coverage limits).  The insurer, the Pennsylvania Manufacturer's Association (PMA) Insurance Company, denied the claims.  PSU sued and the case is scheduled to go to trial in March 2015. 

The "plain language" of PSU's policy indicates that the University will lose.  Molestation and sex abuse aren't  covered.  

Also, there are three pending cases against PSU regarding the Sandusky case -- all which rely heavily on the Freeh Report as evidence that the University was at fault for Sandusky.  These are civil cases and the burden of proof is on the victims to show a preponderance of evidence supporting their respective cases (that PSU was a "third party" who contributed to or facilitated the crimes).   Obviously, the attorneys will also point to the language of the BOT's resolution that states the University is liable.   

PSU isn't looking good in these cases and they know it.  According to PSU's 2013 financial statements (p. 36), the University believes "a loss is reasonably possible in future periods which could have a material adverse effect on our current and future financial position, results of operations and cash flows."   

NCAA/PSU Unexpected Litigation Expenses ($8 million)

Given that the consent decree contained derogatory/defamatory statements about Paterno and other PSU leaders, it provided grounds for those individuals to sue for damages.  The Board's inner circle and the NCAA's belief a single sentence in the consent decree could stop damaged parties from litigating was rather foolish to say the least.  

The group of litigants claiming damages because of the University's, Freeh's, and NCAA's statements and actions include: Mike McQueary, Bill Kenney and Jay Paterno, the Paterno Family (et al), and Graham Spanier.   

As mentioned earlier, the BOT inner circle also erred in concluding that insurance would pay for Sandusky claims.  As a result, it hired Jenner & Block, LLP and Lee, Green & Reiter Inc. to litigate the PMA lawsuit.  

The legal tab incurred by PSU since the outset of the scandal is approximately $17 million. About half of those costs were unexpected.

Externally Initiated Investigations ($4.5 million)

The costs for externally initiated investigations has exploded since July 2013, when they were just $842 thousand.  Those costs were inclusive of the services provided by Margolis and Healy for consulting on Clery Act compliance.  The Department of Education issued its initial Clery Act compliance report in July 2013.  In addition, those costs included the services of Gene Marsh, who was brought in allegedly negotiate with the NCAA.

In August 2013, PSU released another statement revealing externally initiated investigations cost PSU about $1.1 million.   However, as of June 30, 2014, the cost of those investigations reached a whopping $5.6 million.  

Based on the firms listed, the monies are being paid to Buchanan Ingersoll, a governance consulting firm (but not Holly Gregory's)  and the law firm of Saul Ewing.  Saul Ewing holds the documents and related information related to the Freeh Report and has been supporting civil litigation efforts since the early days of the scandal.  The costs related to civil litigation and hiding the truth about the Freeh Report have escalated as the litigation efforts continue.  Given that some of  these cases are tied to Sandusky's criminal acts and some may be eventually be tied to criminal acts, it is unlikely that D & O insurance will cover the costs.

Indemnified Persons' Legal Defense ($4.1 million)

According to documents uncovered in the investigation, prosecutor Frank Fina advised PSU officials that he expected "C + S to flip" on Spanier.   Had that happened, the costs for the legal defense of the indemnified persons would have been much lower.  The Curley, Schultz, and Spanier cases would have been resolved by now, Spanier would have a criminal record, and the University would been done paying legal fees for indemnified individuals.  

Of course, none of that happened.

Much to the chagrin of Frank Fina and the BOT,
PSU officials have maintained their innocence. 

The three former PSU administrators have maintained their innocence and continue to fight in the courts.  

As of December 31, 2012 -- about two months after the OAG issued the Conspiracy of Silence grand jury presentment, the cost of indemnified persons defense was $5.8 million.  At the last accounting the cost was $9.9 million and counting as more Penn State officers file lawsuits.

Public Relations (Unexpected Direct Costs, $3M) 

Freeh, like Mitchell, was hired for PR purposes.

Considering that the hiring of Freeh and George Mitchell were nothing more than public relations ploys, the cost of PR for the scandal has reached $20.7 million.  Not so ironically, in the earliest accounting for the scandal, the Freeh investigation and public relations costs were combined in the same category.  

In February 2012, that total was $5.75 million.   However, the costs of Freeh and Mitchell ($11.6 million) were expected at the time of the consent decree.

As noted above, the OAG and PSU expected one or more of the PSU officials to roll and bring an end to the scandal and its related costs.  The cost of PR calculated at the end of 2012 was $6.2 million.  PR costs have now unexpectedly reached $9.2 million

Firms providing early PR support were:  Reed Smith LLP, Ketchum, Kekst and Company Inc. and Domus Incorporated.   Firms added in April 2012  at a cost of $2.5 million for a 12 month period were: Daniel J. Edelman, Incorporated and La Torre Communications.

It is notable that Edelman's advice to PSU is likely to cost more than 40 times what the firm was  paid.  Here are his remarks from August 2012 about PSU's consistent messaging.

"Look, the school has lived through three major news cycles in the 

last two months, the Sandusky trial and verdict, the Freeh report, and then the NCAA

sanctions. In all three of these situations we've been responding to events not in control of

the events, but in each situation we've been able to provide consistent messages.

"And those are as follows: First, we take responsibility to insure this sort of thing

never happens again, and that we are going to fix the shortcomings so we're a stronger

institution in the future. 

"Second, we're committed to developing and supporting specific programs to protect children on and off campus.

Edelman: Learned nothing from Duke

"Third, we have a plan to improve the school's governance which will be informed in part by the Freeh Report's recommendations and will make this great University even greater in the future. This University has received praise in many corners in the past two months, despite these three big events in the sense that you have been willing to hold nothing back in the investigation and to take very strong actions, such as the removal of the statue in front of the football stadium prior to the NCAA sanctions.

In summary, Edelman's consistent message was to confirm that Penn State and Paterno was responsible for Sandusky's actions.   It should be noted that Edelman also advised the Duke administration's public relations efforts after the rape allegations lodged against its lacrosse team.  In that case, he relied on the media and the court of public opinion to form his beliefs and suggested that it might be right for Duke to do the same.  

It seems some people never learn from the past.

Conclusions

At this point in time, the unexpected costs for the scandal are $75.2 million -- well over the $44 million in interest that the University expected to cover everything.  Of course, those costs will continue to rise as the litigation continues and more potential lawsuits are filed over a variety of issues related to the Board's continued poor decision making.

Clearly, the BOT inner circle's analyses were flawed when they underestimated the direct costs (and indirect costs) of the scandal.  The only thing they may have underestimated worse was the resolve and intelligence of the University's alumni.

Next: Underestimating the alumni.

Media Wrong About Bluff, Death Penalty, and NCAA Influence

The preponderance of the evidence to date shows there was no death penalty ultimatum or bluff and that PSU was behind the narratives of the Freeh Report and the NCAA Consent Decree

By
Ray Blehar

Since November 10th, there has been a deluge of documents flooding the legal system.  The November 10th Corman v. NCAA filing alone was 325 pages. That was followed by more Corman filings on the 12th, 13th (2), and then a Paterno v. NCAA filing on  the 20th.

As in any case, the more information/evidence that is found, the clearer the picture gets.  

For those in the media who have not kept a close watch on the case, it was easy for them to (again) jump to conclusions based on a word or two in emails and a few other documents.

From their abbreviated review, the media concluded that PSU was bluffed into believing that the NCAA could sanction them.  They also jumped to the conclusion that the NCAA had influenced the Freeh Report  and that PSU came close to getting the death penalty.

Those stories are all wrong.

PSU influenced Freeh Report, not NCAA 

Nothing the NCAA briefed to the Freeh group about major violations or lack of institutional control was mentioned in the report.  In fact, the NCAA is only mentioned three times in the report and the best the Freeh report could muster was that the PSU compliance staff was understaffed.  This allegation, of course flies in the face of over a half century of results showing that PSU never had a major rules violation...and still doesn't.

The end notes of the Freeh Report reveal that it was mostly sourced from discussions with the PSU BOT members, Cynthia Baldwin, and the 1998 University Park police report.  The claims of being an exhaustive review are greatly exaggerated.  More was left out of the Freeh Report than was put in it.

Emails obtained by Ryan Bagwell and Bill Cluck revealed the "Core Group" who guided the construction of the report were PSU's Frazier, the PA government's Tomalis, FSS's Omar McNeil and Louis Freeh.  PSU BOT leaders, Karen Peetz and Keith Masser, were infrequent addressees on the emails.

Finally, the "culture" allegations lodged in the Freeh Report originated with the PSU Board and Erickson's Five Point Promise, specifically point number 1.


1.  I will reinforce to the entire Penn State community the moral imperative of doing the right thing - the first time, every time. 

-- We will revisit all standards, policies and programs to ensure they meet not only the law, but Penn State's standard. To oversee this effort, I will appoint an Ethics Officer that will report directly to me. 

-- I ask for the support of the entire Penn State community to work together to reorient our culture. Never again should anyone at Penn State feel scared to do the right thing. My door will always be open.

After Freeh proclaimed PSU's culture to be corrupt - based mostly on a dubious hearsay account of a crime allegedly witnessed by a demented janitor - PSU had Gene Marsh let the NCAA know that PSU agreed with the Freeh Report's assessment of Penn State's "culture" problem.

As Marsh would later explain in August 2012, the NCAA believed the so-called lack of institutional control was caused by the "culture," not a violation of NCAA rules.  He pointed to Article 2.1, which states the President or Chancellor has authority over athletics, as the primary reason for the sanctions.  However, an honest interpretation of the language reveals that the scope is compliance with NCAA rules and regulations, not ensuring coaches police the conduct of retired coaches or second guess the decisions of child welfare officials.


Principle of Institutional Control - NCAA Constitution Article 2.1.1
It is the responsibility of each member institution to control its intercollegiate athletics program in compliance with the rules and regulations of the NCAA. The institution's chief executive officer is responsible for the administration of all aspects of the athletics program, including approval of the budget and audit of all expenditures.

Winding back the clock to November 10th, 2011, Emmert in an ESPN interview stated that the NCAA would wait for the outcome of the criminal investigation before deciding how the NCAA would address the Penn State issue.  

The criminal cases against PSU officials were not concluded, however the NCAA decided to abandon their normal processes, citing the "unprecedented" nature of the case.

But the real reason the NCAA got involved was because: 1) Penn State wanted them to and 2)  coming down hard on PSU would boost the embattled organization's image.

As Marsh wrote above -- Erickson accepted the Freeh Report (on behalf of the Board) and then threw Spanier, Paterno, Curley, and Schultz and the "PSU culture" under the bus.  

The Board's  "goals," so to speak, were to get one more authority to confirm their decisions from 11/9/11 and to continue to assist the OAG in prosecuting PSU officials in the court of public opinion, if not in the eventual criminal trials.  

PSU was not "bluffed," communicated with NCAA all along

In January 2012, Erickson knew that the NCAA was informed of McQueary's gambling issues and some other potential minor rules violations.  

Evidence shows that both issues were uncovered during the criminal investigations relating to Sandusky, Curley, Schultz, and Spanier, given that Frank Fina advised PSU to not represent one of the possible criminal defendants allegedly related to the aforementioned issues. 

The NCAA rejected using this information in sanctioning PSU (i.e., no mention of them appear in the Consent Decree) because the information was obtained through the criminal justice system -- and not the so-called "independent" investigation by Freeh.

PSU Athletics:  "Fastidious on rules violations."

In the same time-frame, the NCAA also was told that the PSU Athletics Department compliance officials were "fastidious on rules violations (e.g., giving donations)."  The NCAA, likely realizing a case of Lack of Institutional Control (LOIC) couldn't be made on legitimately obtained evidence, responded that it would "wait for Freeh Report."   

Prior to the publication of the Freeh Report, emails were leaked to the press that resulted in reports that PSU officials were more concerned with the "humane" treatment of Sandusky, had no concern for victims, and that Graham Spanier may face charges in the case.  Not so ironically, PSU's comment on the email leaks/press reports was that "it would wait for the Freeh Report."

PSU, NCAA made case with media events
In short, PSU and the NCAA used every means at their disposal to dig up evidence that could be used to nail Paterno and PSU Athletics - but that evidence was hard to come by, even with Freeh using intimidation tactics on witnesses. 

Louis Freeh:  All show, no substance....
...and the media keeps falling for his act.

In the end, PSU and the NCAA were banking on Freeh's reputation and well crafted media events to overcome the lack of evidence in the case.  As history shows, the Freeh Report could not be delivered to the media in advance of his press conference due to a (planned) server crash.  The media simply ran with Freeh's press conference remarks without doing any fact-checking.

The quick acceptance of the report by Erickson, Frazier, and Peetz was astonishing to Penn Staters, who at this point, still believed that the PSU BOT was capable of rational thought and were somewhat honest people.  

However, the quick "approval" and the even quicker move to reach a settlement with the NCAA indicated that the two parties had prior knowledge of the flimsy evidence in the Freeh Report and were moving fast before the public learned the report was a sham.

It appears that by the morning of July 13th, PSU and the NCAA had been engaged in discussions and had formulated a plan among the top brass. That group likely included  Erickson, Tom Poole, and Frank Guadagnino for PSU and  Emmert, Remy, and Jim Isch for the NCAA.





















In Erickson's interview on July 17th, he stated that Penn State would be responding to the four questions asked by the NCAA on November 17th,  2011 -- after which PSU would negotiate "appropriate sanctions."    

It's likely that this was one of the "bluffs" involved in this case, given that Erickson had already agreed to using the Freeh Report as the response to the questions and emails indicate the NCAA was already discussing sanctions.

The next passage will show that Erickson and high ranking PSU officials -- to include Gene Marsh -- lied about what transpired with the NCAA.  

Don Remy's email destroys myth of Death Penalty "Ultimatum"

The November 13th  Penn State filing in response to Corman's request for documents appears to hold the most important e-mail (Exhibit M) to date.  Correspondence of September 7, 2012,  between Don Remy and Gene Marsh revealed how the PSU/NCAA Consent Decree was developed.  Note that Remy stated the following italicized remarks are the statement he would make to the public, however the front end of his email to Marsh confirmed that the Death Penalty controversy resulted from Penn State's PR plan.


On July 10, 2012, the media disclosed that the Freeh Report would be issued and a
press conference would be held on July 12, 2012. I contacted the Penn State University Office of
General Counsel to inform them of the NCAA's position on this Report. Because Steve Dunham had
not yet taken office...

...on July 11, 2012, I spoke with acting general counsel Mark Faulkner and
others. I informed them that it would be the NCAA position when the Freeh Report was released that
we expected Penn State to respond to the November 17 letter and then the NCAA would determine
our course of action. That course of action could include anything from doing nothing to conducting a full blown enforcement investigation and going through the infractions process.

On that same day, July 11, 2012, President Emmert delivered a similar message to President Erickson. On July 12, 2012 the Freeh Report was issued and the NCAA released the message we had communicated to PSU: we expected a response and then we would see what was next. 

On July 12, 2012, you (Gene Marsh) contacted me for the first time and indicated that you would handle drafting the response for PSU, that you would be vacationing but would be available by mobile and we should try to connect the following week. We tried to connect over the weekend and...

...on Monday, July 15, 2012, you and I spoke and recognized that our clients (NCAA and Penn State) were contemplating the possibility of resolving matters without a response to the letter and without an enforcement investigation and infractions hearing, but rather through some summary resolution wherein Penn State would agree to the findings of the Freeh Report and the NCAA would impose a set of penalties based upon those findings.

Death Penalty: ..there's a chance...

On that same day, President Emmert appeared on a pre-scheduled interview with PBS where he discussed the Freeh Report and indicated that the NCAA was waiting for Penn State's response to his letter. In that interview he acknowledged that the traditional enforcement process was available and that all penalties, including the so-called death penalty were in play.

On July 17, 2012 the NCAA Executive Committee met and discussed the approach of a summary resolution based upon Penn State's adoption of the Freeh Report that would include various penalties. On that same day, David Berst and I communicated to you the proposed penalties and the approach of a binding consent decree. You will recall that the proposed fine was originally discussed to be $30 million and subsequently raised to $60 million and we initially neglected to report on the vacation of wins, but immediately followed up the call with an e-mail to that effect. President Emmert had a similar conversation with President Erickson.

Late night on July 20, 2012 you were sent a draft of the consent decree, pending NCAA Executive Committee approval. On July 21, 2012, the Executive Committee voted to approve the concepts of the penalties as they were spelled out in the final consent decree and that was communicated to you.

On July 23, the consent decree was executed and announced.

The Erickson video, as well as emails and drafts of the NCAA press release show that the penalties were changing as the process moved toward the 23rd.  

For example, the fine changed from $30 million to $60 million.  Emmert originally planned to rescind Paterno's 2010 Ford Foundation Award, but later relented.   

This was no take it or leave it, Death Penalty ultimatum -- it was just as Ed Ray truthfully reported.  

Ray's correspondence noted that the EC was overwhelmingly against suspension of play when it took its final (unanimous) vote on the penalties that would be enumerated in the NCAA Consent Decree.  The deposition of David Berst (page 221) revealed it was "understood by Gene (Marsh) that we might not ever get to the point where we could prove a case that would finally result in the death penalty."

So if Gene Marsh understood that the NCAA would have a difficult time justifying a case for the "death penalty," it would defy logic that he would get upset over Ed Ray's comments that the Death Penalty was quickly dispensed with by the NCAA Executive Committee.  

Of course, the reason he was upset was because Ed Ray's comments contradicted those of his client's (Penn State).

Collaboration on Public Relations

Based on the evidence above, the premise that the NCAA imposed the "unprecedented" process on PSU is clearly a lie. The vast majority of evidence to date supports the theory that it was a collaborative process.  

The Board also collaborated on the public statements that were devastating to the University, but amazingly kind to Karen Peetz and Rod Erickson.   

With regard to the latter, the PSU Executive Committee's (handwritten) meeting notes from 7/22/2012 reveal that "inner circle" requested Mark Emmert praise them, while throwing Paterno and others under the bus.

Emmert's press conference reveals he did a great job praising the Board and condemning Paterno (e.g., hero worship) and PSU athletics.  

As you read the preceding passage, I expect you were as dumbfounded (and quite possibly, as seething) as I was that the PSU Board and Erickson never spoke up to correct the record, even if just about academics.

There is no question that these individuals only cared for their own self-interest -- not the University's best interest.

Maintaining the Lies: The August 12, 2012 BOT Meeting

On August 12, 2012, the Board called a special meeting to discuss the process by which the NCAA imposed the consent decree and the sanctions on PSU and to affirm support of Rodney Erickson, whose authority to sign the CD was challenged by some trustees. 
  
As the discussion of the meeting turned to supporting Rod Erickson's decision to sign the CD, Peetz, Erickson, and Marsh all had their lies straight.


I absolutely support President Erickson and his  decision to accept the consent decree as the only real  option in the extraordinarily difficult circumstances  and the choices we were presented.  -- Karen Peetz



The next most substantive discussion was on Thursday evening (July 19th), and that message was loud and clear.   I was told that I should know that the majority of the  board of directors at the NCAA believe that the death  penalty should be imposed.  That was as late as Thursday evening and that's the first time that I heard, although I understand other places -- other    
numbers may have been tossed around, but that's the first time that I heard a multi-year death penalty. -- Gene Marsh


 Our legal team then began discussions with  NCAA legal counsel on Monday, July 16th, and it was clear that the NCAA was not interested in negotiating  the terms of the consent decree.  It was a take it or  leave it proposition, and despite our attempts to push  back on the sanctions as we learned about them we  didn't, as Gene indicates, receive the draft consent  decree in writing until the early hours of Saturday  morning then.  -- Rodney Erickson

Erickson's August 12th  statement contradicted his remarks on July 17th, which clearly were that PSU would be negotiating the sanctions.  As much of the evidence above shows, Erickson is guilty of lies of omission about quite a few things in this case -- some things could be considered an obstruction of justice.

Marsh, who had considerable experience with the NCAA, knew that the option to go the traditional enforcement route was available and his discussions with Remy and Berst revealed that he knew the NCAA would be hard pressed to make a case for the death penalty. 

His remarks to the Board about Article 2.1 being the "law of the land" for LOIC in this case were indeed a lie.

Peetz:  No mastermind.

As for Karen Peetz, she was not the mastermind behind any of this, but was willing to assist with the PR campaign to make her "leadership" of the BOT look good, while smearing Paterno and the football program.  

Peetz, who played field hockey at PSU, held a grudge against the football program, which unbeknownst to her, funded her own sport.  

Obviously, Karen is just as brilliant now as she was then.

Conclusion

As more evidence has come out, proper interpretation of the information reveals that select members of the PSU Board of Trustees, such as Erickson, Frazier, Tomalis, Peetz, and Surma, as well as key members of the PSU legal team, were firmly supporting the OAG's narrative that Paterno and key members of the administration had covered up Sandusky's crimes.

They hoped that the NCAA Consent Decree, with provisions stating that PSU could not challenge or appeal it through the NCAA's process or a judicial process would convince Penn Staters and supporters that it (and the Freeh Report) was the final word -- and the only solution was to "move forward."

They failed.

Erickson's 5- Point Promise Provided Template for Freeh Report, NCAA Consent Decree

Then (puppet) interim-President Rod Erickson's five point promise firmly set the narrative condemning the Penn State "culture," Spanier's leadership, and the PSU Athletic Department as a rogue element.

By
Ray Blehar

Erickson:  Five Point Promise was template
For Freeh Report & NCAA Consent Decree

I think I am correct to say that the one single thing about the Freeh Report and the NCAA Consent Decree that is most troubling to Penn State alumni, fans, and friends, was the indictment of our "culture" as putting football ahead of everything else.  

While the Freeh Report concluded that the "culture" permeated the University from the top (Spanier) to the bottom (the janitors), the fact of the matter is that Freeh was only repeating the indictment of the "culture" that was put forth by President Rod Erickson (very likely with guidance from the PSU BOT inner circle) on Nov. 11th,  2011.  

Erickson's first point of the five point promise is below:


1. I will reinforce to the entire Penn State community the moral imperative of doing the right thing - the first time, every time. 

-- We will revisit all standards, policies and programs to ensure they meet not only the law, but Penn State's standard. To oversee this effort, I will appoint an Ethics Officer that will report directly to me. 

-- I ask for the support of the entire Penn State community to work together to reorient our culture. Never again should anyone at Penn State feel scared to do the right thing. My door will always be open.

This point is disturbing on a number of levels, the first of which is that Erickson is basing the statement on the unproven allegations from the Sandusky grand jury presentment.  Next, he repeats the "moral" argument made by Pennsylvania State Police Commissioner Frank Noonan.  Last but not least, Erickson indicts the culture based on the dubious, self-serving explanation provided by the janitors, that they feared they'd lose their jobs for reporting a retired football coach (Sandusky) in 2000.   

While there are many evidentiary issues with the janitor Ronald Petrosky's account of the crime, the fact that McQueary reported Sandusky just three months after that incident certainly rebuts the argument that "anyone at Penn State" felt "scared to do the right thing."  This fact also underscores the importance of the timeline of the Sandusky crimes and indicates the PA Office of Attorney General deceived the public by putting the crimes out of order in the Sandusky grand jury presentment.

This statement, as well, as many others by Erickson and the PSU BOT in the aftermath of the scandal, would have never seen the light of day if it had to pass review by a legal counsel that was putting the interests of the University first.  Unfortunately, neither Cynthia Baldwin (then) nor Steven Dunham (from July 2012 forward) have done their jobs in keeping PSU from making statements that assume guilt and liability for enabling Sandusky's crimes.