Freeh Has Slipped School Compliance Bureaucracies Some Steroids; Emmert Needs Immediate NCAA PSU Inquiry Into Jo Pa Lies

Some somewhat Random Things No One Sees in the PSU NCAA Sanctions:

Why the Freeh Report is alot like what a “Response to NCAA Allegations” was originally supposed to have been. A thorough, fair self-report, in a system supposedly founded on the need for such frankness and fairness. Freeh made a global review of all evidence – and recited all that evidence in his public report – then made good faith “reasonable” inferences and findings from that evidence.

But in the current super-charged NCAA-enforcement litigation world, in contrast, the “Response” filed by most schools (now that they’re all so lawyered-up) does not  include all information obtained by the “outside counsel” through the course of his investigation, but selectively discloses in the publicly-filed response only what the school wants to. And the school’s Response, therefore,  is usually not a fair-minded, good faith review, but an advocacy document, which argues every point in the light most favorable to the school. PSU deserves some credit for retaining Freeh, and giving him broad authority.

But that’s Exactly Why Hiring Freeh Will Not be a Trend: Don’t look for other schools with NCAA-related problems to mimic PSU in hiring outside counsel to issue a public report before any NCAA process can kick in: good lawyers will continue to tell schools to hire them to do “protected” non-public investigations which are hidden by attorney-client privilege. And they’re right.

 In Fact, Slow Down Louie, You’ve Overstepped Your Bounds:  Louie Freeh is just some guy. Sure he’s a former judge and FBI Director. But he’s really just some private citizen here. He has no official power. And he made some judgments, based upon a reasonable asessment  of the facts he uncovered. But he couldn’t subpoena witnesses.  And he still might be flat-out wrong in some of his conclusions.

Why does it matter that Curley and Schultz trials are upcoming? It’s not what most people thought — that the mere fact that criminal charges floated on this entire scene meant that the NCAA couldn’t be involved, which is nonsense (see, for example, OSU’s Tat-gate penalties, triggered by a federal criminal investigation which led to conviction.)

Instead, it’s The Duke Lax Case “Due Process” Lesson – Let the Criminal Due Process Play Out Completely. The upcoming trials raise the possibility that some other evidence may come forward which might completely exculpate, or inculpate one or more of the characters. The Duke rape accuser fabricated her entire story; while it’s unlikely that one of the principals in the PSU case has done the same thing, it is a possibility. (Freeh curiously made much of the fact that his investigation was undertaken under the umbrella of attorney-client privilege, and the attorney work product doctrine, but then proceeded to release , apparently, an entire, unredacted full report of all information gathered, which immediately violated one or both of those protections.) The possibility remains that Freeh (and therefore PSU) has defamed one or more of the PSU administrators by impugning his professional performance when all facts have not been discovered.

Nonetheless, The Freeh Report is a Watershed and a Blueprint. But not for reasons you might think.  In any corporate or bureaucratic environment, a highly publicized, expensive, and unusual summary global review like Freeh’s (and its’ scope, reaching into all areas of university governance and operations, is huge) tends to become a benchmark.  So here’s my prediction:

— Every Athletics Department in the country will look to the terms of the Freeh Report in determining its’ future structure and function.

—  Ethics and Integrity Monitoring Will Explode on Every Campus: The Freeh Report will cause very substantial expansion of the already swollen bureaucracies within Athletics Departments around the country. If you’re an expert on “corporate ethics,” your employment market will boom.

— The NCAA or Independent Ethics/Compliance/Integrity Monitoring Camel Has its’ Freeh-Nose Under the Tent:  The PSU Consent Decree endorsed the need for an NCAA-designated on-campus “Academic Integrity Monitor” — so watch for an ensuing avalanche of silk-tie AD’s and Presidents declaring their commitment to spend ungodly dollars hiring one more layer of “enforcement/monitoring” staffers with a whole lot of new Department and Job Titles, including some “independent” monitors, some of whom will be NCAA staffers now resident on campus.

Not that all that piled-on bureaucracy layer will make a whit of difference. Most of these positions have names to mark what has been – like academic integrity, for example – long since finally obliterated by the mad bull of big time sports on campus. It’s all just “Compliance on Steroids,” but it won’t stop the Jo Pa’s, Jim Tressels and Butch Davis’ of the coaching world from snivelling about to get wins.

PSU’s President Rodney Erikson Explicitly Waived Any due process objection to the NCAA Penalties.

The NCAA Penalties are but a Minimum “Floor”, since the NCAA explicitly reserved the right to further investigate and penalize. There could be alot more coming.

Did Rodney Erikson Read the Freeh Report? The PSU Board was never consulted about this earth-shaking NCAA Consent Decree. But ten days ago, Freeh declared that the PSU corporate structure and operation, including a specific failure to adequately and thoroughly consult and inform the Board was a major cause of the scandal. If this NCAA Consent Decree (which, according to early reports, may even, believe it or not, cause Moody’s to downgrade PSU’s credit rating) doesn’t require BOT oversight, then what does?

Many of PSU’s top dollar lawyers love most of these agreed-upon NCAA sanctions. Even if the PSU BOT is cranky that it wasn’t consulted, the legal beagles are likely telling Erikson that accepting these sanctions is “getting out front” of their myriad problems.  In fact, the $60 million fine is certainly piddling in comparison to the PSU $1.7 billion endowment, most likely piddling when stacked up against the numerous hefty, if not mind-blowing civil, criminal and governmental liabilities which PSU is facing down for years to come, and therefore a very solid, competent shield against those liabilities. A good guess is that at the top of President Erikson’s personal “NCAA Sanctions” file lies a memo from his lawyers exalting these agreed-upon penalties for just those reason. In the long run, this may save PSU money, and lots of it. That’s why they agreed to it.

JoPa’s Perjury: If prosecutors had access to the emails Freeh got, they’d’ve indicted JoPa for lying to the Grand Jury.

Because of the enormity of Jo Pa’s lies, all of his past statements are suspect and must be reviewed by the NCAA: After all, if he could so brazenly lie by denying for more than a decade the existence of criminal child abuse at PSU, he certainly would be likely to lie about the existence of violations of nuts-and-bolts NCAA bylaws. Nothing Jo Pa said in the past should be given any presumption of truth. The NCAA, therefore, must undertake it’s own investigation, beyond what Louis Freeh has done, to go back and check on past filings and statements by Paterno.

The NCAA needs to immediately investigate PSU concerning other Athletics Department or Administrator knowledge of Sandusky activities: Among his staggering findings was one which has been little observed; Freeh found that “several staff members and football coaches regularly observed Sandusky showering with young boys” before May 1998.  Couple this with Mike McQueary’s now completely overlooked statement before the Grand Jury that, after he made his earth-shattering report to Jo Pa in 2001, he did speak with some of his peers about the events, and you have the clear suggestion that many people within the PSU athletics operation most likely had knowledge of Sandusky’s activities. The NCAA needs to plum the depth of this knowledge by undertaking its’ own investigation.

By the way, Corbett and the DA Couldn’t Subpoena All Emails?  Ask yourself why the DA or Attorney General’s office didn’t – after having the Sandusky case under investigation for 3 years – subpoena and get access to the ’98 and ’01 emails upon which Freeh so heavily relied. A partial answer is that the man responsible for running that investigation – former AG and current Governor Tom Corbett – didn’t want to know.

Finally, who exactly signs these Press Releases as “The Paterno Family?” The absence of any specific named signers suggest that moral cowardice is a genetic trait handed down through the Paterno generations. Do these Paternos now consider themselves Rothschilds? Kennedys? Or Gambinos? Can’t any of them gin up enough honesty to put their name on a jeezly press release — or else the name of Wink Sollers, their $700 per hour attorney  who drafted it and eggs these people on to embarrass themselves with these missives?

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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1 Response to Freeh Has Slipped School Compliance Bureaucracies Some Steroids; Emmert Needs Immediate NCAA PSU Inquiry Into Jo Pa Lies

  1. Anonymous says:

    Well Stated, more will be reveled………………

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