The NCAA says the estate of Joe Paterno should be required to turn over background documents from its critique of the Freeh report in the same way the estate has sought information that led to the university-commissioned report led by former FBI director Louis Freeh and his law firm.
“What we have here is, in our view, a goose-and-gander situation,” NCAA lawyer Everett “Kip” Johnson told specially presiding Judge John Leete of Potter County in a hearing on Friday, the Associated Press reported.
The Paterno estate along with former Penn State football assistant coaches Jay Paterno and Bill Kenney are suing the NCAA, its president Mark Emmert and Oregon State President Ed Ray, the NCAA’s executive committee chair in 2012 when the NCAA issued sanctions against Penn State in the wake of Freeh’s investigation and report on the Jerry Sandusky child sex abuse case.
The lawsuit, filed in 2013, claims commercial disparagement and defamation, citing the use of the Freeh report in the NCAA’s consent decree for sanctions with Penn State, most of which was later repealed or ended early. The university is a nominal defendant in the case. The plaintiffs say the report and sanctions resulted in damage to commercial interests and values and harmed the former assistant coaches’ ability to find similar work.
Paterno family lawyers said there are significant differences between the Freeh report and the Paterno family’s critique by former Pennsylvania Governor and U.S. Attorney General Dick Thornburgh, former FBI profiler Jim Clemente and Johns Hopkins psychiatrist and sexual trauma expert Fred Berlin.
Unlike the Freeh report, for which Leete earlier ruled Freeh was not working as an attorney for the university, the Paterno response was led by and included consulting experts hired by the family’s legal team and therefore their background work is privileged, the family’s attorney said.
“Publication does not open the door to confidential information,” Paterno family attorney Ashley Parrish said, according to the Associated Press.
The Paterno estate’s critique of the Freeh report concluded that the latter’s allegations of wrongdoing by Joe Paterno were unfounded and the investigation and reporting was flawed.
Leete did not make a ruling but expects to soon.
Sandusky, a former Penn State assistant football coach, was charged in November 2011 and convicted in June 2012 on 45 counts related to child sexual abuse. He is serving a minimum 30-year sentence. The Freeh report was published in July 2012 and alleged Paterno, as well as former president Graham Spanier, vice president Gary Schultz and athletic director Tim Curley concealed knowledge of Sandusky’s acts to avoid bad publicity.
The report was used as the basis of the consent decree with Penn State. In the years since, however, the report has been subject to much criticism by those who say its conclusions are unsupported by facts. The NCAA ultimately rolled back most of the sanctions against Penn State, and earlier this year the most serious criminal charges against Curley, Schultz and Spanier — obstruction of justice and conspiracy — were dropped, as were perjury charges against Spanier and Schultz.
