When we last left the baffled and befuddled Penn State trustees, they were trying to figure out what happened in the Great NCAA Sanctimonious Sanction.
What happened is that the NCAA bamboozled university president Dr. Rodney Erickson. The NCAA—having spent most of its history figuring out ways to make college athletics even more prominent on college campuses—suddenly found religion, created new rules, didn’t conduct an investigation, and shredded anything resembling due process. Using the Freeh Report as its newly-found Bible, NCAA president Mark Emmert piously declared he wanted Penn State to “rebuild its athletic culture,” and preached the lesson that the NCAA hoped “to make sure that the cautionary tale of athletics overwhelming core values of the institution and losing sight of why we are really participating in these activities can occur.”
It was a neat little speech, probably written by PR people. But it couldn’t be Penn State he was referring to. Penn State athletes go to classes and graduate; its football team is often at or near the top of graduation rates for Division I football programs. The university itself, even with a well-recognized party culture, is well-known for numerous academic programs that are among the best in the country.
Nevertheless, Emmert somberly told Erickson that the NCAA was seriously considering the death penalty for Penn State. Death, in NCAA terms, means a suspension of the sport for at least one season. The only time the NCAA had issued the death penalty was in 1987 against Southern Methodist University for blatant and repeated recruiting violations. Death to the Nittany Lions football program would significant harm the university and private business, and affect far more than the football team, not one of them having been involved in what is now known as the Penn State Sandusky Scandal.
But, said Emmert, have we got a deal for you. If you sign on the dotted line, we won’t kill football at Penn State, we’ll just fine you $60 million, ban you from bowl games for four years, reduce the number of scholarships, vacate the 111 wins from 1998 to 2011, require you to follow everything the Freeh Report recommended, hire an athletics monitor, comply with everything we tell you, and place you on probation for five years.
Now, every career criminal and little ole lady who accidentally shoplifts knows the police and DA aren’t serious in their first presentment of charges. They overcharge, trying to scare the defendant into a plea bargain. Plea bargains allow DAs to claim high conviction rates, while not having to get all messy with such things as jury selection and presenting evidence. So, the defendant and the DA negotiate, and a few charges are thrown out, and the defendant agrees to a lesser offense—perhaps instead of felony burglary, it becomes a misdemeanor, complete with a small fine and probation—and everyone is happy.
Dr. Erickson, with Pigskin Proud drops of perspiration flowing freely, was so relieved his university wasn’t getting the electric chair, he agreed to whatever it was that the haughty NCAA demanded, and signed the consent decree that Penn State would never ever appeal the decision.
Back in State College, the trustees, as is their history, were clueless and furious.
For years, they thought their only functions were to approve whatever the university president told them needed approving, raise tuition and fees, and get their friends good seats at football games. Now they faced a greater problem.
They had previously proven they were inept in how they handled the scandal. They had previously violated state law by their secret meetings and failure to extend any semblance of due process to Coach Joe Paterno and president Graham Spanier. Then to hide their meltdown, they commissioned Louis Freeh, former FBI director, to conduct what they claimed was an independent investigation, for which the insurance company paid about $6.5 million.
True to what the Trustees wanted, Freeh miraculously decided that the Trustees needed to reassert their power, and that the people to blame, in addition to the convicted child molester, were the former president who resigned, a now-retired senior vice-president, a former athletic director, and the dead guy, also known as Joe Paterno. Problem solved.
However, there are still a few problems. The first problem is that the Freeh investigation is just that—a private investigation that was not subject to even the basic rules of due process, the right of individuals to subpoena witnesses and to challenge their accusers under oath.
The second problem is that Jerry Sandusky, convicted of an assortment of felonies, was not employed by the university or was a football coach at the time the crimes were committed. The first suspected felony, reported by Paterno, was not prosecuted by police or the DA.
The third problem is that Paterno and Spanier, who faced media hysteria and took the brunt of the Trustee condemnation, were never charged with having done anything illegal, nor did they ever face their accusers in court.
Enter Ryan McCombie, a Penn State alumnus who was elected to the Board in July as a reform candidate promising to get the Board and the university to be more accountable to the people and to protect the rights of accused. McCombie isn’t some wimp in the disguise of a corporate executive. He’s a retired commanding officer of Navy Seal Team Two, and not someone to be messed with.
One month after his election, McCombie unleashed his first shot, and it wasn’t over the bow. In a letter to the NCAA, McCombie, acknowledged the suffering of Jerry Sandusky’s victims. However, he also said that the NCAA objectives that led to the sanctions “should not be achieved by ignoring or trampling upon the fundamental rights of others. The desire for speed and decisiveness cannot justify violating the due process rights of other involved individuals or the University as a whole.”
He charged that Erickson didn’t have the authority to enter into the agreement with the NCAA. He noted that the lack of an NCAA investigation violated NCAA established procedures, and were “excessive and unreasonable.” But his most powerful torpedo hit dead center. The conclusions and recommendations of the Freeh report, which the NCAA used to justify its moral outrage, was “based on assumptions, conjecture and misplaced characterizations that are contrary to available facts and evidence,” said McCombie.
The final problem is that the NCAA and most of the Penn State Trustees are still paddling in choppy seas and don’t know they have been sunk.
[Walter Brasch is a former newspaper and magazine reporter and editor and university professor. He is the author of 17 books, the most recent of which is the critically-acclaimed novel, Before the First Snow, which looks at the American counter-culture and political corruption.]