One day after Tim Curley testified in open court for the first time, attorneys for the NCAA defending a lawsuit by the Paterno estate filed a request to depose the former Penn State athletic director.
The motion for leave to depose Curley was not made available, because the NCAA simultaneously filed a motion to seal it. According to the the latter, the motion for leave for deposition makes references to information and contains an exhibit that have been designated ‘highly confidential,’ in an earlier protective order issued in the case.
The Paterno estate, along with former assistant coaches Jay Paterno and Bill Kenney, are suing the NCAA, its president Mark Emmert and former executive committee chair Ed Ray in Centre County Court. The lawsuit, filed in 2013, claims commercial disparagement, defamation, tortious interference and conspiracy, citing the use of the Louis Freeh report commissioned by Penn State in the NCAA’s consent decree for sanctions with Penn State related to the school’s handling of reports of child sexual abuse by Jerry Sandusky. The consent decree was replaced and most sanctions repealed or ended early. 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.
Before last week, Curley had asserted Fifth Amendment rights in depositions for civil lawsuits related to the Sandusky scandal. But after pleading guilty to a misdemeanor charge of endangering the welfare of children for his role in the handling of a report about Sandusky, he testified on Wednesday for the prosecution in former President Graham Spanier’s trial on child endangerment and conspiracy charges.
Spanier was found guilty of one misdemeanor count of child endangerment and acquitted of a second and the conspiracy charge.
What additional information Curley could reveal about Paterno’s knowledge about reports of Sandusky remains to be seen. In his testimony last week he often struggled to recall details of conversations with Paterno and others about a 1998 police investigation of Sandusky and Mike McQueary’s 2001 report about Sandusky with a boy in a locker room shower.
McQueary first reported the incident to Paterno, who then told Curley and former vice president Gary Schultz, who also was charged and pleaded guilty to a misdemeanor child endangerment charge.
Curley testified that he and Schultz met with Paterno at Paterno’s home. He said that Paterno told them McQueary had witnessed ‘horseplay, wrestling in the shower.’ Schultz testified that Curley met with Paterno and relayed the information to Schultz by phone.
McQueary testified that he tried to tell Paterno, ‘the best I could what I saw,’ and that he told the coach Sandusky was naked in the shower with a boy and that he heard slapping sounds. McQueary said he made it clear to Curley and Schultz that what he saw was sexual.
Curley maintained that they were not told of anything sexual. Schultz testified that McQueary said that Sandusky was naked with his arms around the boy. Curley, Schultz and Spanier initially agreed to a plan that included notifying the Department of Public Welfare.
‘After giving it more thought and talking it over with Joe yesterday – I am uncomfortable with what we agreed were the next steps,’ Curley wrote in an email to Spanier and Schultz in February 2001.Contacting child welfare was dropped from the plan and they agreed to tell Sandusky not to bring children to the locker rooms, advise him to seek professional help and notify the director of his Second Mile charity for at-risk youth.
Curley testified that he couldn’t recall the specifics of his conversation with Paterno, but said that the suggestion to not contact public welfare was Curley’s alone.
Sandusky had previously been investigated by Penn State Police and child welfare authorities in 1998 after a mother reported Sandusky had ‘bear-hugged’ her son in a shower. Centre County District Attorney Ray Gricar declined to press charges in that case.
Paterno testified to a grand jury in January 2011 that he did not know of other reports about Sandusky beyond the 2001 report. In emails from May 1998, Curley told Schultz, ‘I have touched base with the coach. Keep us posted.’ He also wrote, ‘Anything new in this department? Coach is anxious to know where it stands.’
Curley testified that ‘coach’ referred to Paterno, which was the conclusion reached by the Freeh report. Curley could not recall the specifics of what he may have told Paterno in 1998.
Paterno, who died in January 2012 at the age of 85, was never accused of wrongdoing by law enforcement.
