By: Jeffrey Lapin
The Estate of Joe Paterno intends on filing a lawsuit today against the NCAA and is seeking to overturn the NCAA sanctions against the school. The Estate is especially critical of the Freeh Report, which placed blamed on Joe Paterno and other Penn State Officials regarding Jerry Sandusky’s sexual assault of several young boys. The Estate wants Paterno’s name cleared and the Freeh Report discredited.
THE FREEH REPORT
Louis Freeh and his law firm had been hired by the Board of Trustees of Penn State to conduct an independent investigation regarding Jerry Sandusky’s sexual abuse of minors and the alleged cover-up by several Penn State officials. The findings of the investigation, widely referred to as the “Freeh Report,” were released on July 12, 2013. Some of the findings made by Mr. Freeh and his team include::
- It is more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at the University – Spanier [former Penn State President Graham Spanier], Schultz [former school vice president Gary Schultz], Paterno [former Head Football Coach Joe Paterno] and Curley [former Athletic Director Tim Curley]- repeatedly concealed critical facts relating to Sandusky’s child abuse from the authorities, the University’s Board of Trustees, the Penn State community, and the public at large;
- A striking lack of empathy for child abuse victims by the most senior leaders of the University.
- A failure by the Board to exercise its oversight functions in 1998 and 2001 by not having regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University.
- A failure by the Board to make reasonable inquiry in 2011 by not demanding details from Spanier and the General Counsel about the nature and direction of the grand jury investigation and the University’s response to the investigation.
- A President who discouraged discussion and dissent.
- A lack of awareness of child abuse issues, the Clery Act, and whistleblower policies and protections.
- A decision by Spanier, Schultz, Paterno and Curley to allow Sandusky to retire in 1999, not as a suspected child predator, but as a valued member of the Penn State football legacy, with future “visibility” at Penn State and ways “to continue to work with young people through Penn State,” essentially granting him license to bring boys to campus facilities for “grooming” as targets for his assaults. Sandusky retained unlimited access to University facilities until November 2011.
- A football program that did not fully participate in, or opted out, of some University programs, including Clery Act compliance. Like the rest of the University, the football program staff had not been trained in their Clery Act responsibilities and most had never heard of the Clery Act.
- A culture of reverence for the football program that is ingrained at all levels of the campus community.
The Clery Act, formally known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 USC § 1092(f)) is a federal law, originally known as the Campus Security Act. It requires colleges and universities across the United States to disclose information about crime on and around their campuses. The Act also provides protection to crime victims, “whistleblowers”, and others from retaliation for reporting crimes or the failure of an institution to fulfill their duties under the Act.
All those named in the Freeh Report have denied any wrongdoing. Criminal investigations are still pending against Spanier, Schultz and Curley. Sandusky, who has appealed, was convicted on June 22, 2012, on 45 charges of sexual assault involving 10 boys.
On July 23, 2012, the National Collegiate Athletic Association (NCAA) and Pennsylvania State University (Penn State) entered into a Consent Decree with Penn State accepting severe penalties. These penalties include:
- A University payment of $60 million over five years into a special endowment created to fund programs that prevent child sexual abuse and assist victims of child sexual abuse.
- A four year ban on post-season football games, and a scholarship reduction. All Penn State football wins from 1998-2011 will be vacated.
- The University must enter into an Athletic Integrity Agreement and engage a third-party monitor to oversee compliance with the AIA and the NCAA’s constitution and bylaws.
- Former Maine Senator, George Mitchell, was named as the NCAA’s third-party monitor.
- A five-year probationary period.
In deciding to enter the Consent Decree, Penn State heavily reported on the Freeh Report and Sandusky’s trial:
Therefore, Without further investigation or response, the findings of the Criminal Jury and the Freeh Report establish a factual basis from which the NCAA concludes that Penn State breached the standards expected by and articulated in the NCAA Constitution and Bylaws.
The Consent Decree was signed by Penn State President Rodney A. Erickson, and Mark A. Emmert, President of the NCAA
PATERNO AND THE LAWSUIT
Joe Paterno (“JoePa”) was Penn State’s football team head coach for 46 years. He won more games than any other major-college football coach. As a result of the child sex abuse scandal involving his former assistant coach, Jerry Sandusky, Paterno was fired by Penn State on November 9, 2011, after his offer to resign was declined. Paterno died on January 22, 2012, due to spreading lung cancer.
The lawsuit being brought by Paterno’s estate, along with former board members, players, and coaches, a copy of which was not available at the time this post was prepared, names the NCAA and some of its representatives. Penn State itself is not a named defendant. Dan McGinn is the Paterno family’s lawyer and spokesman. According to McGinn and based on information obtained by news reporters, the lawsuit is seeking to have the NCAA sanctions against Penn State overturned. According to Wick Sollers, the lead attorney for Mr. Paterno’s family:
This case is further proof that the NCAA has lost all sense of its mission. If there was ever a situation that demanded meticulous review and a careful adherence to NCAA rules and guidelines, this was it. Instead, the NCAA placed a premium on speed over accuracy and precipitous action over due process.
Without seeing the lawsuit it is hard to understand how the plaintiffs have “standing” to bring the lawsuit. Standing has been defined by the United States Supreme Court as: “Whether a plaintiff is entitled to have a court decide the merits of a dispute or of particular issues.” A court can dismiss a lawsuit if it is determined that the plaintiff does not have standing to bring the case. This was one of the issues that arose in March of 2013 with regard to the “Proposition 8” U.S. Supreme Court case involving California gay marriage ban.
Source information for this post comes from the following sources:
- Binding Consent Decree Imposed by the National Collegiate Athletic Association and Accepted by the Pennsylvania State University.
- Cheryl K. Chumley/ The Washington Times: Joe Paterno’s family to sue NCAA to overturn Penn State sanctions.
- Daniel Roberts/ Fortune: Joe Paterno’s family brings new suit against NCAA.
- Jack Carey/ USA TODAY: Penn State coaching legend Joe Paterno dies at 85.
- Penn State: The Freeh Report on Pennsylvania State University
- Penn State: Fact Sheet on Penn State NCAA Sanctions
- The Clery Center for Security On Campus: Summary Of The Jeanne Clery Act.
- United States Supreme Court: Warth v. Seldin, 422 U.S. 490, 498 (1975).
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