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Editorial: Penn State Board should reject NCAA Consent Decree

by on August 11, 2012 12:42 PM

I don’t write much. But I do read a lot.

Last time I wrote, I wrote this: Don't burn down the University because of one criminal and four bad actors.

It looks like Rod Erickson and the NCAA didn’t listen.

Disclaimer: I am no lawyer.  But I have read the entire Freeh report multiple times. I have read the Consent Decree multiple times, I have read the NCAA Bylaws over and over and I have read Penn State’s Standing orders, Corporate Bylaws and Corporate Charter.  Further disclaimer: My father is an elected member of the Board of Trustees and he sent the following letter to the rest of the Board of Trustees yesterday.  This Editorial is my opinion based on my research.

As we all know there has been a rush to judge and a rush to punish.

The NCAA, pushed by the lynch mob, has brought the hammer down on Penn State. 

That action will destroy hundreds of millions of dollars created and now lost, in addition to many jobs. Of course, all of this comes at the worst economic time in the U.S. and global economy.

None of this is meant to diminish what has happened to the child sex abuse victims. (More on that in a moment.)

The further you get from the Penn State / Central Pennsylvania community the more uninformed people are of the issues and the more calls for punishment to Penn State. 

Penn State will be punished. However, the NCAA is not the proper authority to do it. Using the NCAA constitution, as a reference (http://www.ncaa.org/wps/wcm/connect/public/ncaa/20120723/21207235) we find that there is no reason for punishment; here is not one violation documented or punishable act stated.

Many legal minds have said that the NCAA didn’t even have the authority to act in this case before the Consent Decree was announced.

Why did the NCAA act in this case? Actual violations? Jealously? Public pressure? Or lynch mob mentality?

The full story is not in yet. Victims, victims everywhere.

Should Oklahoma City be shut down because it fostered and allowed the culture for these home grown terrorists to develop?

Should the military be disbanded, should all military leaders lose their jobs and be sent to prison because of Abu Ghraib? 

No and no; you had a few bad actors in both situations.

How about this: Should all Catholics be ostracized and the religion be outlawed because of its myriad pedophile issues (http://en.wikipedia.org/wiki/Catholic_sex_abuse_cases)? Of course not.

I am not minimizing Sandusky’s crimes. They are heinous, we all agree. There are victims and survivors of crimes everywhere. 

But to tear down a university made up of 700,000 students, faculty, staff, alumni and supporters because of a single criminal is criminal in itself.

This is the type of criminal who is very good at covering their tracks and hiding their crimes. And because of four or five people who knew about some piece of 1998 and some piece of 2001 people say the whole university and the whole “company town” must have known and covered this up.

To this I say baloney. 

As has been reported other places, Sandusky was investigated by the police, Children and Youth Services and the Department of Welfare -- and he was given a clean bill of health. He was investigated when he adopted kids and was given a clean bill of health.

So now we expect a football coach from a second hand report to know beyond a reasonable doubt what he should have done. The record says that he turned it in to his superiors. This was University Policy and the law. I am not here to defend Joe Paterno and he is not here to defend himself.  He has been tried and convicted in the press, the public and by the NCAA. He was never charged with doing anything wrong and was in fact commended for doing everything he was supposed to by the Attorney General’s office. (http://www.pennlive.com/midstate/index.ssf/2011/11/paterno_praised_for_acting_app.html)  If once he turned this in, he was allowed to influence the decision of what was done, blame the people above him.

We also are to expect a university president who is trained in family psychology, who said he had been physically abused by his own father to now turn a blind eye, after “he must have known.” He says he didn’t know and has not yet been charged with a crime.(http://espn.go.com/pdf/2012/0723/espn_otl_spanierletter.pdf).

Again, there were no violations of any NCAA rules.

Yet the NCAA threatened Penn State’s president Rod Erickson with the death penalty. And Erickson, without authority to do so, signed a statement acquiescing to the NCAA’s demands. On top of that he was forced to sign it without proper authority, because he was further threatened that if he went back to his board and it somehow got out, the “deal” (if you can call it that) was off of the table.

I contend that the NCAA didn’t follow its own by-laws. Penn State didn’t violate any NCAA rules. Many people have reported that the NCAA didn’t have a rule to deal with this situation. (http://www.thenation.com/blog/169002/why-ncaas-sanctions-penn-state-are-just-dead-wrong#)

Yet, due to mob rule and lynch mob mentality -- and potentially Mark Emmert’s political aspirations – Emmert and NCAA came up with a way to punish Penn State in new and creative ways.

Penn State is already being punished in a way no other school or institution has been.

Instead of dealing with the bigger issue of college sports in general, the NCAA decided to make an example of the poster boy for excellence. Penn State has been held up as the example for years of doing it the right way -- both in academics and sports -- and has been referred to as a public Ivy school. (http://www.boston.com/news/local/breaking_news/2010/09/forget_harvard.html)

Penn State is recognized world over for leadership in so many areas from: Education, Diversity, and Research.

Now all of a sudden Penn State is the example of the worst of the worst?

There has been a huge rush to judgment by the media, Freeh and the NCAA; they have played judge, jury and executioner.

Because Erickson signed the Consent Decree, many in the public now assume Penn State must have known it was guilty and that is why it signed the decree. This has further damaged Penn State’s reputation and forces Penn State to accept as fact many unsupported conclusions.

If Erickson won’t fight for the reputation and future existence of the university, hopefully its trustees will.

The ball is in the Board of Trustee’s hands and we are awaiting its move. (They have just announced a meeting, via conference call, for this Sunday) So far, the board has not voted to accept the Freeh report and The Board has also not accepted the consent decree, which is required under the university’s own by-laws.

Some of the members of the Board of Trustee’s, the Paterno estate and several former Penn State football players are appealing the sanctions with the NCAA. And it appears are planning on proceeding with Federal suits against the NCAA. 

Here is an excerpt from the NCAA Bylaws: 

6.1.1 President or Chancellor. A member institution’s president or chancellor has ultimate responsibility and final authority for the conduct of the intercollegiate athletics program and the actions of any board in control of that program. (Revised: 3/8/06) 

It says is that the member institution's president has ultimate responsibility and final authority for the conduct of the athletics program and actions of any board in control of that program.

It does not give the president control over the university finances or legal authority over the university.

It is my opinion that Erickson clearly overstepped his legal authority with regards to the university and did not have authority to enter into this negotiation or agreement without Board of Trustees’ approval by vote. 

I am happy that they are going to force a public vote on the issue. 

We know which way Gov. Corbett’s 10 appointees to the board of 31 (The alumni only currently have 8 representatives, because Steve Garban was the 9th and he resigned) will vote. It is my opinion that the governor has a different agenda at play. We know which way Rod Erickson will vote. So the question is, which way will the other 20 trustees vote? (Eight are elected by the alumni and 6 who are appointed by a board representing Business and Industry and 6 who are elected by delegates from Ag societies.)

If individual trustees are willing to vote to go along with Erickson, then they will at least have put their vote out in the public and are willing to accept the consequences of their vote. This is a budgetary as well as a legal issue that must be voted on by the Board of Trustees.

Here is another excerpt from the NCAA Bylaws:

6.2 Budgetary Control

6.2.1 Normal Budgeting Procedures. The institution’s annual budget for its intercollegiate athletics programs shall be controlled by the institution and subject to its normal budgeting procedures.

6.2.2 President or Chancellor Approval. The institution’s president or chancellor or an institutional administrator designated by the president or chancellor from outside the athletics department shall approve the annual budget in the event that the institution’s normal budgeting procedures DO NOT require such action. (Revised: 3/8/06) 

Penn State’s standing order DOES require such action. So the NCAA’s Conscent Decree even violate it’s own Bylaws.

There are no penalties in the NCAA by-laws spelled out for lack of institutional control, which is why they have said they want to punish Penn State. There is however a section that defines institutional control, but there are no penalties spelled out for lack of institutional control:

6.01.1 Institutional Control. The control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself and by the conference(s), if any, of which it is a member. Administrative control or faculty control, or a combination of the two, shall constitute institutional control.

There is one section (19.5.2.1;f;3 See below) that says certain violations reflect a lack of institutional control. But there is no prescribed penalty for lack of institutional control. And there have been no examples of a major violation of the rules, which would be provided by the NCAA the ability to even apply the penalty.

Here is the excerpt:

19.5.2 Penalties for Major violations.

19.5.2.1 Presumptive Penalty. The presumptive penalty for a major violation, subject to exceptions authorized by the Committee on Infractions on the basis of specifically stated reasons, shall include all of the following:

(a)  A two-year probationary period (including a periodic in-person monitoring system and written institutional reports);

(b)  The reduction in the number of expense paid recruiting visits to the institution in the involved sport for one recruiting year; (Revised: 1/11/94)

(c)  A requirement that all coaching staff members in the sport be prohibited from engaging in any off- campus recruiting activities for up to one recruiting year; (Revised: 1/11/94)

 (d)  A requirement that all institutional staff members determined by the committee knowingly to have engaged in or condoned a major violation be subject to: (Adopted: 1/11/94)
   (1) Termination of employment;
   (2) Suspension without pay for at least one year;

   (3) Reassignment of duties within the institution to a position that does not include contact with prospective or enrolled student-athletes or representatives of the institution’s athletics interests for at least one year; or

(4)  Other disciplinary action approved by the committee.

(e)  A reduction in the number of financial aid awards; (Adopted: 1/11/94)

(f)  Sanctions precluding postseason competition in the sport, particularly in those cases in which: (Revised: 1/11/94)
    (1) Involved individuals remain active in the program; (Adopted: 1/11/94)
   (2) A significant competitive advantage results from the violation(s); or (Adopted: 1/11/94)

   (3) The violation(s) reflect a lack of institutional control. (Adopted: 1/11/94)

(g)  Institutional recertification that the current athletics policies and practices conform to all requirements of NCAA regulations.

I contend that Erickson was coerced and threatened with something that did not exist. And now Penn State if the Board of Trustees accepts the Consent Decree would be complicit in adopting these penalties and also liable for damages from them. A detailed account by Don Van Natta of ESPN.com indicates that coercion took place.  http://espn.go.com/espn/otl/story/_/id/8228641/inside-secret-negotiations-brought-penn-state-football-brink-extinction

And that, in turn, may have very well of violated federal laws, including the Hobbs Act (Anti-Racketeering) (http://en.wikipedia.org/wiki/Hobbs_Act) I assume the FBI will start looking in to this.

The Consent Decree also states that:

The University is required to adapt ALL recommendations presented in Chapter 10 of the Freeh report. The University will take all reasonable steps to implement them by Dec 31, 2013.

In addition to a lot of other things under the corrective component paragraph in the Consent Decree, it also says that:

If the NCAA determines, in its sole discretion, that the University materially breached any provisions of the AIA, such action shall be considered grounds for extending the term of the AIA or imposing additional sanctions, up to and including, a temporary ban on participation in certain intercollegiate athletic competition and additional fines. The NCAA shall be permitted to accept as true and take into consideration all factual findings of the Freeh Report in imposing additional sanctions related to breach of the AIA and may initiate further NCAA investigative and administrative proceedings. The NCAA will provide the University notice of the allegation of a material breach and an opportunity to respond but the final determination rests with the NCAA.

So basically Penn State has now given up all rights they have under the NCAA with respect to a hearing for any future issues effectively making Penn State a second class citizen in the NCAA. 

Further the paragraph above the signature states:

By signature of its President below, the University represents (i) that it has taken all actions necessary, to execute and perform this Consent Decree and the AIA and will take all actions necessary to perform all actions specified under this Consent Decree and the AIA in accordance with the terms hereof and thereof; (ii) its entry into this Consent Decree and the AIA is consistent with, and allowed by, the laws of Pennsylvania and any other applicable law.

Obviously, President Erickson did not take all actions necessary to execute this document. He didn’t contact his Committee on Legal and Compliance nor his full board. And if the trustees acquiesce in allowing this to happen, they are complicit and ineffective.

My sources tell me that even some of Erickson’s closest academic advisers are upset that he didn’t consult them and that he didn’t seek out any additional expertise prior to signing the agreement with the NCAA.

Erickson was coerced or bullied into signing this document without getting proper authority, and doing so takes away the rights and privileges of all Penn Stater’s. It devalues the Penn State brand now and well into the future.

Comments that I have heard and read say that because Penn State accepted these penalties and punishments that “they” know “they” are guilty. When Penn State and the Penn State community did nothing wrong.

You have a president (Graham Spanier), an athletic director (Tim Curley), a VP (Gary Shultz) and a football coach (Paterno) and even an attorney (Cynthia Baldwin) who it appears may be complicit in what amounts to a conspiracy.

But, we have yet to hear their side of the story. They are entitled to due process.  Of course, Paterno will never get to tell his side.

The NCAA made Penn State do exactly what got us here in the first place and what the Freeh report recommended against. And that was keeping it’s own Board of Trustees in the dark!

If the trustees accept Erickson's signature with the NCAA, they allow the NCAA to define governance by contract for the university.  Which is forcing the University to not only accept the Freeh report, but ALL recommendations within Chapter 10. (http://www.scribd.com/doc/102585068/Report-Final-071212-Ch-10)  

You have gotten one opinion, that of Freeh. What is his experience or expertise with this? There has been no opportunity to debate or get a second opinion and so on.  In addition, Freeh commission representatives have come out and said that it should just be a piece of the puzzle and is not meant to be the entire story.

When I contacted the Freeh Group and when asked what experience they had with respect to governance of sports or educational institutions, I was told “no comment” and that they would get back to me. That was six days ago. So I take that answer as they have none. 

When asked about the NCAA using its report to determine their punishments, “The Freeh Group has no comment on the NCAA’s use of the Report.”

Interestingly enough Freeh came out with updates to the report after the NCAA issued its Consent Decree (http://www.thefreehreportonpsu.com/Louis-Freeh-Report-on-Penn-State-ERRATA-SHEET.pdf)

Many of Freeh Groups reports have been debunked, invalidated and overturned and he is being accused of his own massive cover-ups:

http://www.reuters.com/article/2011/11/21/us-crime-coach-freeh-idUSTRE7AK1KH20111121

http://www.businessinsider.com/penn-state-investigator-louis-freeh-accused-of-heading-a-massive-cover-up-as-director-of-fbi-2012-7

http://www.businessweek.com/news/2012-07-19/bin-hammam-s-life-ban-from-soccer-overturned-by-top-sports-court

I contacted the NCAA and Mark Emmert for comments regarding the questions that have subsequently come out about the Freeh Report and they would not return my call.

This is mismanagement of the situation at its worst.

In my opinion, Penn State Board of Trustees should reject the Freeh Report and should reject the Consent Decree as President Rod Erickson had no authority to sign this $500+ million dollar check.

The NCAA should stand up and admit that it acted too hastily and in fact didn't have authority to punish Penn State for what is a criminal and civil case.

Penn State should also as quickly as possible find a temporary CEO/turn-around expert to come in and run the university until a permanent replacement is found.

Further, Penn State should start an immediate search for a new University President, one who will abide by and understand the rules by which he/she is expected to operate.

 



Dan Myers is the president and publisher of StateCollege.com. He can be reached by email at dan@statecollege.com or you can follow him at http://www.twitter.com/danielmyers
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