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Emails Suggest NCAA Was Bluffing When Threatening Sanctions Against Penn State

by on November 05, 2014 10:51 AM

Update: This story was updated to include official statements from the NCAA and Penn State.

New court documents suggest the NCAA may have been bluffing when it threatened Penn State with numerous sanctions in the wake of the Jerry Sandusky child sex abuse case.

A commonwealth court filing from earlier this week includes email correspondence from 2012 between top NCAA officials, who discuss the basis for the sanctions against Penn State. In the emails, former NCAA Vice President of Enforcement Julie Roe calls the NCAA's actions toward Penn State a front.

"I characterized our approach to PSU as a bluff when talking to Mark [Emmert, NCAA president] yesterday afternoon ... " Roe writes to NCAA Vice President of Academic and Membership Affairs Kevin Lennon.

"He basically agreed b/c I think he understands that if we make this an enforcement issue, we may win the immediate battle but lose the war when the COI [committee on infractions] has to rule."

Roe goes on to question whether the NCAA even has the jurisdiction to sanction Penn State for criminal actions not related to athletics. She writes it is "a stretch" to argue the NCAA has jurisdiction, and suggests the NCAA "could make the control argument based on ethical failures by senior leaders" instead.

In an email from Roe to NCAA Vice-President of Communications Bob Williams, Roe argues that "vacation of [Penn State's] wins is the right move because ... Penn State had great success on the field ... and those wins were based on a pristine image which was a lie."

However, Lennon writes to Roe that he doubts that Penn State stood to gain a competitive athletic advantage by keeping Sandusky's abuse hidden. This argument was a cornerstone of the NCAA's sanctions, which included vacating Penn State's wins between 1998 and 2012 and a $60 million fine.

"Delicate issue, but how did PSU gain a competitive advantage by what happened?" Lennon writes. "Even if discovered, reported, and actions taken immediately by the administration, not sure how this would have changed anything from a competitive advantage perspective."

Lennon says in the same email that the NCAA doesn't have an answer to the question of jurisdiction.

"I know we are banking on the fact school is so embarrassed they will do anything, but I am not sure about that ..." Lennon writes. "This will force the jurisdictional issue that we really don't have a great answer to that one."

The emails were released as part of a commonwealth court filing in State Senator Jake Corman's lawsuit against the NCAA.

Corman, along with state treasurer Rob McCord, filed a lawsuit against the NCAA in state court last year in an attempt to ensure that the $60 million fine the NCAA imposed on Penn State be spent in Pennsylvania. The lawsuit seeks to force the NCAA to abide by the Endowment Act, which the state legislature passed to keep the NCAA's fine money in state.

Attorney Matt Haverstick included the emails in a filing on behalf of Corman on Sunday. Corman is fighting for the release of documents the NCAA claims is privileged and should not be made public. Parts of the NCAA emails included in the filing are edited out, indicating there is information the NCAA claims is protected by attorney-client privilege.

Haverstick argues in the filing that since none of the parties in the emails are attorneys, there is no basis for any claim of attorney-client privilege. 

"The NCAA... continues to insist that 'just trust us' is an appropriate response to a motion to compel allegedly privileged documents," Haverstick writes in the Nov. 2 filing.

The NCAA released an official statement on the emails at 4:10 p.m. on Wednesday.

"Debate and thorough consideration is central in any organization, and that clearly is reflected in the selectively released emails. The national office staff routinely provides information and counsel to the membership on tough issues," the satement on the NCAA website reads. "The NCAA carefully examined its authority and responsibility to act in response to the athletics department’s role detailed in the Freeh report. Ultimately, advised by all information gathered the Executive Committee determined to act and move forward with the Consent Decree."

At 6:00 p.m. on Wednesday, Penn State President Eric Barron and Board of Trustees Chairman responded in an offical statement.

"We find it deeply disturbing that NCAA officials in leadership positions would consider bluffing one of their member institutions, Penn State, to accept sanctions outside of their normal investigative and enforcement process," the university statement reads.

Penn State is "considering it's options," but will not go into further details because of the ongoing legal battles.

The Commonwealth Court of Pennsylvania also chastised the NCAA for "deplorable" legal maneuvering last week, moving the lawsuit between the athletic organization and Corman one step closer to trial.

The NCAA responded to Corman's 2013 lawsuit by filing a parallel lawsuit against Corman and McCord in federal court, arguing that the Endowment Act is unconstitutional. The parties have since gone back and forth in both courts in an increasingly complicated and interconnected legal dance.

The NCAA initially requested for the the lawsuit in state court to be dismissed, which Commonwealth Court Judge Anne Covey denied. The NCAA then offered to abide by the Endowment Act to end the litigation, but Covey instead set a January trial date to examine the consent decree between Penn State and the NCAA. Penn State signed the consent decree in the wake of the Jerry Sandusky child sex abuse scandal, allowing the NCAA to impose the $60 million fine and other sanctions on the university.

In response to these proceedings in state court, the NCAA asked for an expedited decision on its case in federal court. Corman and McCord opposed this request, saying it was an attempt to avoid the trial in commonwealth court. Corman and McCord then filed for a partial judgement in state court on October 15, which the court granted on Friday.

"The NCAA's forum shopping by seeking a more favorable ruling from the Federal Court... is behavior courts find deplorable," Covey wrote in an Oct. 31 opinion.

She reaffirmed an earlier ruling that the Endowment Act does not violate the state or national constitution, keeping the case on path for the January trial on the consent decree.

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Michael Martin Garrett is a reporter and editor for StateCollege.com who covers local government, the courts, the arts and writes the Keeping the Faith column. He's a Penn State alumnus, a published poet and the bassist in a local indie rock band.
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