Friday, July 7

NCAA Statement Ignores Evidence -- Again

The NCAA's statement claiming "total victory" in the Paterno lawsuit is delusional and not supported by the evidence on the public record.

Ray Blehar

July 7, 2017, 8:27 AM EST

On June 30, 2017, the NCAA released a statement that boasted “total victory” based on the Paterno, Et Al decision to withdraw from its civil lawsuit and for not taking the case to trial.

It also alleged that the “powerful record developed through discovery” supported its decision to adopt the key findings of the Freeh Report to sanction Penn State University Athletics and former head coach Joe Paterno.  

“The Paterno family characterized this case as a ‘search for the truth,’” said Donald Remy, NCAA chief legal officer. “Its decision today, after years of investigation and discovery, to abandon its lawsuit rather than subject those facts to courtroom examination is telling.  We believe that the powerful record developed during discovery overwhelmingly confirmed what the NCAA has believed all along: the NCAA acted reasonably in adopting the conclusions of an eight-month investigation by Louis Freeh.”

Remy noted the timing of today’s decision by the Paterno family to voluntarily abandon its lawsuit was only hours before the NCAA was due to file a roughly 100-page summary judgment brief detailing the results of years of exhaustive discovery regarding plaintiffs’ claims. He added the decision “represents a total victory for the NCAA.”

The Paterno’s lawsuit alleged, among other things, that the NCAA Consent Decree was imposed unlawfully and that the language used in it was false and defamatory.

In response to the NCAA’s statement, Sue Paterno called the NCAA’s assertions “absurd” and noted that it is the NCAA who is insistent on keeping the full facts of the case from becoming a matter of public record. She challenged the NCAA to make discovery available for public inspection.

History and all of the evidence remain firmly behind Sue Paterno.

Corman Thwarted NCAA Efforts to Hide the Truth

Prior to the 2015 settlement in the Corman/McCord case, the NCAA attempted to hide behind claims of attorney-client privilege in order to avoid turning over critical documents in discovery.  

Corman and McCord thwarted the NCAA’s efforts by including alleged privileged documents as exhibits in their November and December 2014 court filings.  Those exhibits exposed critical facts about the NCAA’s motivations and questionable actions in sanctioning the University, including its knowledge that there were no rules violations within the statute of limitations for an enforcement action.  

Without a legal leg to stand on, the NCAA decided to circumvent the traditional enforcement process in order to take action against PSU.  

Evidence revealed that these questionable acts came as a result of the NCAA’s desire to take advantage of the publicity surrounding the Freeh Report in an attempt to change its reputation as a weak enforcer. 

NCAA Director of Committee on Infractions Shep Cooper wrote in a July 4, 2012 email:

“…However, the new NCAA leadership is very image conscience and if they conclude that pursuing allegations against PSU would enhance the Association’s standing with the public, then an infractions case could follow. I know that Mark Emmert has made statements to the press indicating that he thinks it could fall into some sort of LOIC case. ‘Shooting road kill’ is an apt analogy.’
Documents Proved Freeh Report Did Not Establish LOIC

Many of the 4,900 documents released by Corman proved that the NCAA knew that the Freeh Report, which did not make any references to NCAA rules violations, was insufficient for its purposes of taking enforcement action against PSU.

Emails between Remy and Freeh Group revealed that NCAA President Mark Emmert wanted the Freeh group to make an additional statement to include the language of “lack of institutional control” in discussing the findings.   The Freeh Group refused, stating it was not part of their contractual arrangement (with PSU) to do so.

As a result, the NCAA charged PSU with a “lack of institutional integrity” – a term not defined anywhere in the NCAA Charter and By-Laws.  

The NCAA moved to dismiss the Corman case in October 2014, but Commonwealth Court Judge Anne Covey ruled the case would go to trial and that the legality of the consent decree – and by extension, use of the Freeh Report -- would be part of the case.

With the evidence on the public record heavily against them and knowing that a court case on the legality of the consent decree would be disastrous, the NCAA settled the case.

Corman:  “The NCAA has surrendered”

As a result of the settlement, the NCAA repealed and replaced the NCAA Consent Decree, restructured $60 million in fines, and restored 112 wins to the PSU football program, including 111 belonging to legendary coach Joe Paterno.  The restoration of wins put Paterno back at the top in terms of Division I (FBS) winning coaches.

Corman stated:

“Today is a victory for due process. Today is a victory for the people of Pennsylvania. Today is a victory for Penn State Nation.  The NCAA has surrendered. This is a total repeal of the consent decree, not a settlement. This is akin to the mercy rule. Clearly [the NCAA] was way behind in the case and they gave up.”

Legal System Proved NCAA Was Wrong to Use The Freeh Report

Even before the Freeh Report (and NCAA Consent Decree) had seen the light of day, the conclusions being drawn were not supported by the evidence.

A Freeh Report finding, quoted in the consent decree, falsely stated “the environment at Penn State, shaped by actions and the inactions of the leadership and board of Penn State allowed Sandusky’s serial sexual abuse of children.”   

The facts established during the Sandusky investigation and trial clearly proved that Sandusky’s serial victimization of children began before anyone at PSU was notified about allegations of inappropriate behavior in 1998.  

Prior to 1998, and unbeknownst to PSU officials, Sandusky was victimizing children on the PSU campus and elsewhere by virtue to his role as a mentor at The Second Mile.  His continued access to children after 1998 was also outside the control of PSU officials because child welfare agents (in 1998) concluded that he was not a danger to children and did not revoke his ChildLine clearance.  

The Sandusky trial did not confirm or provide evidence that PSU leaders had any knowledge of sexual abuse by Sandusky in 2001 or thereafter (until the news of the Sandusky grand jury investigation was broken).  As such, Freeh’s conclusion that PSU officials somehow “allowed” serial sexual abuse was false and defamatory and the legal folks at the NCAA knew or should have known that.

The March 2017 trial of Graham Spanier also refuted the Freeh Report’s conclusion that Spanier “did not advise the Board of Trustees about the 1998 and 2001 child sexual abuse allegations against Sandusky.”   

Although PSU officials Gary Schultz and Tim Curley pleaded to misdemeanor counts of endangering children, neither Schultz nor Curley testified to being informed of sexual abuse allegations in 1998 and 2001.  Moreover, they testified that they told Spanier that the 2001 incident involved only horseplay.   Because there was no evidence that Spanier was ever told about sexual abuse allegations in 1998 and 2001, he could not have advised the Board about them.

Finally, no testimony or evidence was ever brought forward in any proceeding to support the Freeh Report’s and NCAA Consent Decree’s assertion that PSU official’s actions were influenced or motivated by the fear of the “consequences of bad publicity.”

In conclusion, the evidence is overwhelming that the Freeh Report’s key conclusions used to penalize PSU Athletics were premature, based on scant evidence, and wrong.

But when did evidence ever matter to the NCAA?


  1. Replies
    1. With so much secrecy by the judge it is difficult to know all the reasons the Paterno family dropped the case. Sue Paterno did say cost was an issue. Even if the Paterno estate prevailed in court, the NCAA would appeal and appeal for years.

      Maybe the judge was siding with the NCAA on key issues, such as what evidence would be allowed. Maybe the Paterno strategy all along was not to go to trial but to hope the NCAA would offer a settlement in order to avoid trial and keep the evidence secret.

      The Paterno lawyer announced he was leaving the case shortly before it was dropped. Perhaps new counsel advised the Paterno family that dropping the case was the best way to proceed.

    2. Sadly, dealing with lawyers usually involves endless delays paid for with seriously large amounts of money, with no assurances that anything will ever come of it, not to mention the mental and emotional drain. I'm sure they would have loved a big victory to help educate the rest of the world but in reality the Paternos made the smart move.

  2. If I was the judge in this case, I would unseal all the evidence in response to the NCAA statement that the evidence proves their case. They can't argue to keep the evidence sealed but then talk about how it proves their case.

    The NCAA statement reminds me of the ruling by the Bill Cosby judge when he unsealed Cosby's deposition because Cosby was a "public moralist." The NCAA seems to be moralizing, just as they did all along regarding the Sandusky scandal.

  3. Sadly, nobody stood up to attack the lies and hoaxes and the people responsible for them, including suborned perjury by the OAG. Every one played politically correct including defense attorneys who were derelict in their duty to defend their clients.

    As stated in the June 2017 article in National Geographic Magazine "Why We Lie", a lie that is not rigorously attacked is taken as truth, and after a while even concrete evidence will not change a person's mind. This is solid science.

    The NCAA has science behind them in re-enforcing the lie. The OAG knows that that the corrupt judges have their back and the media has given them a virtual license to lie.

    To win a war, you attack. You take the fight to the enemy. Every one in this fiasco hunkered down and then sounded retreat.