Trustees | Trusteeship

Unprecedented in every way

ESPN   |  July 23, 2012 by Don Van Natta Jr.

Everything was unprecedented— the NCAA’s decision to circumvent its own investigative procedures, the sweeping scope and severity of the penalties (including the erasure of 111 wins for Joe Paterno) and the quick acceptance of the crippling punishments by Penn State University.

In a decision reached in record time and marked by strong language, the NCAA’s leaders used historic sanctions against Penn State to send an overriding message: protecting the safety of children is far more important than protecting a football program.

“There is incredible interest in what will happen to Penn State football,” Ed Ray, the chairman of the NCAA’s executive committee and Oregon State’s president, told reporters Monday. “But the fundamental chapter of this horrific story should focus on the innocent children and the powerful people who let them down.”

Unspoken at Monday’s news conference by Ray and NCAA president Mark Emmert was the desire to flex the NCAA’s authority and make an example of a football program that one year ago stood—beneath the Paterno banner of “success with honor”—as one of the most ethical and successful programs in the country. But just as Penn State accepted the Freeh report 11 days ago, the NCAA accepted the conclusion that at Penn State, football came first.

“In the case of Penn State, the results were perverse and unconscionable,” Emmert said. “No price the NCAA can levy will repair the grievous damage inflected by Jerry Sandusky on his victims. However, we can make clear that the culture, actions and inactions that allowed them to be victimized will not be tolerated in intercollegiate athletics.”

The extreme penalties—a $60 million fine, a four-year postseason ban, five years of probation, a significant loss of scholarships and the vacating of all Penn State’s football wins from 1998 until 2011—are as striking as the way in which the NCAA arrived at them.

Usually NCAA enforcement investigations take months or years. Technically, this took 11 days, from the day the Freeh report was made public. A traditional investigation and process was bypassed when the NCAA Division I board of directors decided to give Emmert free rein to determine the “punitive and corrective” sanctions.

In a usual investigation, the NCAA’s enforcement investigators try to determine whether specific rules are broken. As a backdrop, there is often an attempt to determine whether a university’s “loss of institutional control” has led to an unfair competitive advantage on the football field. When determining whether there is a loss of institutional control, the NCAA’s bylaws say they would find that when “a person with compliance responsibilities fails to establish a proper system for compliance or fails to monitor the operations of a compliance system appropriately.”

No such test was conducted in the Penn State inquiry because the NCAA leaders—and Penn State’s leadership—agreed one wasn’t necessary. By embracing the damning conclusions of the 267-page Freeh report, which was commissioned and accepted by Penn State, the NCAA also concluded that the Sandusky scandal flourished not only because four men concealed it but because of an out-of-control football-first culture allowed them to keep it quiet.

“An argument can be made that the egregiousness in the behavior in this case is greater than any other seen in NCAA history,” Emmert said, “and therefore a multiyear suspension is appropriate.”

Emmert said he was hopeful the sanctions would foster cultural change at Penn State so that “football will never again be placed ahead of educating, nurturing and protecting young people.”

The university didn’t just accept the findings by signing a binding consent decree Monday; it practically embraced them. A conservative estimate of the penalties and costs to the university from the Sandusky matter is several hundred million dollars, but Rodney Erickson, the university president, said the sanctions represent “a significant step forward.”

A trustee, who spoke on condition of anonymity, said that the negotiations took a matter of days last week. “I am a bit stunned we weren’t informed,” the trustee said. In the Freeh report, the trustees were excoriated for a failure of governance. Ironically, in recent days, few trustees knew that the sanctions were coming.

The historically tough penalties were signaled in the days following the arrest of Sandusky, the firing of Paterno and longtime university president Graham Spanier, and perjury charges against two senior university officials—athletic director Tim Curley and vice president Gary Schultz.

Emmert had told the New York Times last November that the circumstances of the scandal were “unchartered territory in many ways” and said the NCAA would not send investigators to Penn State to investigate. “That’s going to be the difficult part, untangling what parts are criminal and what parts are relevant to our bylaws,” Emmert said. “Those are two different things.”

But all that changed after the Freeh report was released on July 12. The NCAA decided to substitute the Freeh report for an investigative report of its own, and reacted with the same outrage as the public at the conclusion that there was a conspiracy of silence about Sandusky’s child sexual abuse between Paterno, Spanier, Schultz and Curley. Indeed, Emmert said Monday that by interviewing 430 witnesses and reviewing 3.5 million documents, former FBI director Louis Freeh had conducted a far more thorough investigation than the NCAA would have conducted.

A week ago today, Emmert hinted in an interview with Tavis Smiley of PBS just how severe the penalties would be, saying the concealment of child sexual abuse by Sandusky at Penn State was “egregious” and added he hoped “never to see it again.” At the time, Emmert said he was waiting for Penn State’s official response to a letter sent last November. But quietly, the university and NCAA had begun discussions, though many of the trustees had not been told about those discussions, a trustee said. Last week, several trustees hoped that the resignation of longtime trustee and former board chairman Steve Garban and the removal Sunday morning of the Paterno statute would send a positive message to the NCAA.

By late last week, the punishment decision was already made by the NCAA and accepted by Erickson and Karen Peetz, the board’s chairwoman. A binding consent decree was signed Monday.

At Monday’s news conference, Emmert and Ray did not level any criticism at an individual, though the erasure of Penn State’s wins over 14 years was seen as a direct censure of Paterno. Spanier, who was once chairman of the NCAA Division I’s board of directors, was not mentioned. Spanier, who sent a letter defending himself to the board of trustees, is under criminal investigation by the Pennsylvania Attorney General’s Office.

Some former enforcement officials at the NCAA worried about the precedent set by the decision. And others concluded that the circumstances were so unique that the NCAA would likely not investigate every instance of criminal wrongdoing on campus.

David Price, a former head of NCAA enforcement who retired two years ago, said, “I don’t see the NCAA getting into reviewing every illegal activity an individual on the staff creates. …I think there has to be some tie back to the university.”

At Monday’s news conference, Ray said the message sent by the NCAA is simple: “The message is the presidents and the chancellors are in charge.”

Yet at Penn State over the past 16 years, Spanier was at times criticized for being too much in charge. The Freeh report, in damning conclusion after damning conclusion, lays out the story of a stunning and systemic failure of leadership at Penn State, putting much of the blame on Spanier. It concludes that Spanier—who denies the findings—was part of a concerted effort to conceal the Sandusky allegations and that he kept a passive board of trustees in the dark over several years.

With that as a backdrop, Emmert said that the NCAA is requiring that Penn State adopt reforms delineated in Chapter 10 of the Freeh report, particularly Section 5.0, which covers lines of authority in the athletic department, security evaluations, searches for job candidates, the addition of compliance officers, and athletic department personnel training.

Like everything else announced Monday, the direction was heavy-handed.

Anne D. Neal, the president of the American Council of Trustees and Alumni, criticized the NCAA’s unilateral action, saying it represented “a cynical and dangerous power-grab.” She said the problem is the NCAA is “a council of presidents” and its own rules prevent university boards of trustees to provide checks and balances “which challenge the ambitions of coaches, athletic directors and presidents.”

“The problem is the NCAA mindset which wants a potty trained trustee: show up at a few football games, sign a few big checks and don’t meddle in university affairs,” Neal said.

“Rather than injecting itself into an area where it has no real legal authority, the NCAA should realize that its president-centric world view is part of the problem and leave the matter to the board of trustees,” she said. “A properly active and engaged board can far more readily fix the culture at Penn State than the NCAA, whose very lifeblood is the college presidents and sports programs which are contributing to a culture which too often puts athletics ahead of academics.”

However, the Freeh report harshly criticized the board for its failure of governance. In 2004, a group of seven Penn State trustees attempted to strengthen governance and rein in Paterno and Spanier, but the full board never voted on the proposal.

Neal said that it was a lost opportunity for Penn State to right itself.

“The NCAA action for Penn State may give the NCAA and its council of presidents a brief moment of moral superiority,” she said. “They have punished and humiliated a bad actor—and they may think they don’t have to hold a mirror to themselves.”

For the next five years, and likely longer, Penn State’s football-first culture will change because it must. Among the university’s current leadership, the desire for change is certainly there, but the NCAA has established an elaborate and unprecedented system of checks and balances that trusts but will also verify.


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