The NCAA released a set of documents Friday that provide important context in understanding the events that led to the consent decree between the Association and Penn State University.
This context is needed because the ongoing litigation has resulted in the release of various NCAA emails and other evidence including depositions and exhibits attached to various court papers filed by Senator Corman.
“When taken out of context, some of this material creates a misleading impression of the important issues related to the consent decree between the NCAA and Penn State,” said NCAA spokesperson Erik Christianson. “The NCAA believes the full story will emerge at the trial scheduled for January 2015.”
The NCAA on Thursday filed a motion in Pennsylvania state court for partial summary judgment in the Corman case, urging the judge to determine that the consent decree between the Association and Penn State University was not entered into under duress.
The NCAA carefully considered how to deal with the unprecedented situation reflected in the Freeh Report. Penn State commissioned and accepted the report prior to entering voluntarily into the consent decree, rather than risk an extended enforcement investigation and potentially more severe sanctions.
The materials released today do not include any documents received from other parties through the discovery process. Many other internal documents remain subject to attorney-client privilege.
The following list outlines several important items for context:
- Penn State was advised by a team of lawyers with expertise in every area relevant to Penn State’s decision whether to execute the consent decree, including the former chair of the NCAA Committee on Infractions, who advised Penn State as it “weigh[ed] accepting [the sanctions in the consent decree] versus what might come with a traditional infractions process in an opinion,” and he believed it “made the right choice.” Email from Gene Marsh to David Berst and Donald Remy (July 23, 2012).
- Interactions between the NCAA and Penn State were courteous and professional. Penn State understood its options and viewed the certainty and quick resolution provided by the consent decree as preferable to the “roll of the dice” and drawn-out timing associated with the traditional enforcement process. Email from Remy to Marsh and Berst (Sept. 7, 2012).
- Counsel for Penn State advocated on its behalf regarding the consent decree and recognized that Penn State could have opted for the traditional enforcement process. Email from Marsh to Remy and Berst (July 19, 2012); Email from Marsh to Remy and Berst (July 19, 2012).
- Penn State’s outside counsel specifically requested that, at the conclusion of the process, the NCAA emphasize in its public statements the “strength of feeling on the [NCAA Executive Committee and Division I Board] regarding the possible application of the death penalty” to help in “bringing the ‘community’ along in buying in to this.” Email from Marsh to Remy and Berst (July 19, 2012).
- The NCAA allowed Penn State’s leadership to “frame” the events leading to the execution of the consent decree “for its own survival,” and not to correct the public perception and record that Penn State’s leadership created. Email from Berst to Wally Renfro, Remy, Bob Williams, Mark Emmert, and Jim Isch (July 29, 2012).
- The NCAA enforcement staff praised and supported the actions taken by the Executive Committee in responding to the scandal at Penn State, and Penn State’s outside counsel praised the press conference announcing the consent decree. Email from Julie Roe Lach to Ed Ray, Berst, Emmert, Renfro, Remy, Kevin Lennon, Williams, Isch and Bernard Franklin (July 23, 2012).
- Despite internal dialogue about the NCAA’s role in responding to the Sandusky scandal at Penn State, the NCAA senior staff concluded that the action taken by the Executive Committee was appropriate, valid, and consistent with its authority to address issues impacting the “core values” of the Association. Email from Berst to the Division I Conference Commissioners Association (July 23, 2012).
Depositions of NCAA witnesses also fully explain the appropriateness of the NCAA’s decision in response to the Sandusky scandal and the advocacy of Penn State’s counsel regarding NCAA actions.
- “Penn State willingly entered into a consent decree with the NCAA, which is totally appropriate as a member institution. They elected to take that course of action without availing themselves of any appeal opportunities which were available to them.” Deposition testimony of Kevin Lennon, NCAA vice president of academic and membership affairs (Nov. 5, 2014).
- “As to whether this was successful, you know, I see the -- what I hope is a minority view from plaintiffs’ attorneys and other very vocal individuals around Penn State who simply are defending the previous culture and saying, NCAA, you shouldn’t have ever done anything. You should not attack our program which is supported unconditionally. I think that’s just wrong footed, and I believe -- I hope there’s actually a majority of the people in the valley who are thinking this is the dumbest thing I’ve ever seen, and everybody ought to be moving forward, and what Erickson did was give everybody a chance to do that in moving forward. And there have been what I hope is a minority group that simply won’t accept that which, in my mind, is proof of the problem with the culture in the first place ... But the failure is in the failure to act appropriately when the time came for that to occur. So that had to change in some fashion. I believe Mark Emmert did the right thing to try. Even though I disagreed with the process in the beginning, I would testify and am that it had full -- he had full authority to try to start enforcement process [and] the Executive Committee had full authority to act under matters that are fundamental to the association. And that brings us to here today, unfortunately.” Deposition testimony of David Berst, NCAA vice president of Division I governance (Nov. 11, 2014)
- “I believe it is very possible at the time in July of 2012 that as the facts proceed and are agreed upon, that a case for lack of institution control could absolutely be made.” Deposition testimony of Lennon (Nov. 5, 2014).
- “Q: What was your view on the possibility of a consent decree? A: Based on what I knew at that point, I thought it appeared to be a good option for Penn State. And at that point, the NCAA Executive Committee. Q: Can you explain why you thought it was a good option? A: Because both parties were agreeing to this path as a way to resolve an important issue and a way to resolve it in what appeared to be a reasonable way by both sides.” Deposition testimony of Julie Roe Lach, former NCAA vice president of enforcement (Nov. 11, 2014).
- “Q: ... Would the enforcement group have had jurisdiction based on your review of the Freeh Report and anything you read after the Freeh Report? A: ... I think based on my reading of the Freeh Report at the time, I thought there was a genuine issue for the enforcement staff to consider issuing a letter of inquiry and initiating an investigation. Q: And that was not done because the Executive Committee took jurisdiction? A: That, I never got to that point. I didn’t need to because the Executive Committee and Penn State said we’re going to resolve this through this appropriate pathway. Q: And what would have been the basis of the enforcement group’s jurisdiction? A: Again, it’s been a while since I’ve read the Freeh Report. But at the time, there seemed to be real questions about administrator unethical conduct … and then also some larger institutional control issues.” Deposition testimony of Roe Lach (Nov. 11, 2014).
- “Any reasonable person in an organization would consider that, in light of the facts that came forward in the Freeh Report, …the lack of control demonstrated by the institution that they ultimately agreed to, … the possibility that sanctions could be applied in those instances if you’re asking if that’s a realistic thought in conversation that could have happened, and was going -- the answer is yes.” Deposition testimony of Lennon (Nov. 5, 2014).
- “Q. Is the first time conceptually what became the consent decree was discussed among anyone, was when you discussed it as a possibility, regardless of what it was called ...? A. I believe that to be the case. It may not have been the first conversation where that would occur. But the idea certainly surfaced in that, in a call with Gene [Marsh]. And he became very interested in whether there was some possible process that could be quicker than going through what I call … the hard slog of trying to go through infractions.” Deposition testimony of Berst (Nov. 11, 2014).
- “Q. Do you recall a conversation with Gene Marsh in which the substance of the communication was Penn State can accept the punishments it will get through the Executive Committee and, you know, a stipulated result, a consent decree, whatever by that point it was being called or it can go the infractions route and it runs serious risk of the death penalty? A. I don't think it was ever phrased that way. I think it was - and I think it was understood by Gene that we might not ever get to the point where we could prove a case that would finally result in the death penalty. I believe there were people interested in heading in that direction. But I would guess he didn’t consider that a realistic threat. I think he knew all the problems we would have in developing the case. Q. You don’t believe that Gene Marsh thought that the imposition of the death penalty was a realistic threat, if he proceeded with -- A. That isn’t what I said. Q. That's why I’m trying to be clear. A. That if you went the enforcement investigation route, that there were -- I think he was as well aware as I was of the various impediments in making it to the end of that process, that at which time the death penalty could be considered. I think he knew that it was relatively unlikely we could prove the case adequately to get there. Q. Was that ever said aloud or that is your understanding of what you believe Gene knew? Did you two discuss that openly? A. Yes, and I think he even said that. Q. Something like you’re going to have problems proving your case? A. Yes.” Deposition testimony of Berst (Nov. 11, 2014).
- “Q. Did you believe that Gene Marsh on behalf of Penn State had the right to reject a proposal that involved Executive Committee consideration and instead opt for the infractions process? A. At every step. And I believe -- I don’t know that he could do that unilaterally - his obligation I would expect would be to go back to Erickson or whoever else he was reporting to at the institution and any or all of them could take that step at any juncture. Q. And had that step been taken, assuming appropriate authority from President Erickson, would NCAA to your knowledge have honored that request and instead used the traditional infractions process? … A. I believe that it would have, yes.” Deposition testimony of Berst (Nov. 11, 2014)
- “A. There was interest in whether there is a way, was a way to avoid what I called the hard slog of the enforcement program, which I said would, in fact, be imposed or would be implemented if this didn’t work. Recognizing that there was no assurance on either side, whether that would be concluded in a manner that could -- would, I guess would result in the death penalty. … And still, you had presidents and others who were basically saying this case is one in which the death penalty ought to be applied, the so-called death penalty. And to me, this looked like the most appropriate way to move forward. If you both want to put it behind you, you want to begin to build a new culture. And if the penalties that are ultimately imposed are acceptable to all parties. Q. You agreed as a matter of NCAA bylaws that the death penalty or suspension of play could have been applied to Penn State as a penalty had it gone through the enforcement process? A. Yes.” Deposition testimony of Berst (Nov. 11, 2014).
- “Q. [D]id the words you used to express that sentiment express a sentiment that Gene [Marsh], you are likely to get the death penalty if you go the infractions route or, Gene, it's on the table if you go the infractions route? A. It was probably closer to the latter, that the so-called death penalty comes into play. And there would be those that would advocate for it.” Deposition testimony of Berst (Nov. 11, 2014)
- “Q: Does the suspension of play penalty, is it provided anywhere else within the bylaws other than the repeat violators provision? A: The ‘other penalties as appropriate’ section that exists in the major violations section of the other bylaws, I think, could encompass a discontinuation of a program. Q: So your position is then the death penalty is not limited to repeat offenders? A: I think the reason the major violations lists ‘other penalties as appropriate’ is to allow the Association a wide breadth of penalties when acts were so egregious that it warrants things that aren’t specifically listed or included on the existing list.” Deposition testimony of Lennon (Nov. 5, 2014).
- Lennon testified that Roe “shared with me that she wasn’t sure exactly how the Committee on Infractions might react or rule,” but that “quite frankly, that is just a standing concern that enforcement has any time they bring allegations on infractions….” Deposition testimony of Lennon (Nov. 5, 2014).
- “Q: The next paragraph reads, quote: I characterized our approach to PSU as a bluff when talking to Mark yesterday afternoon after the call. Do you remember talking to Mark Emmert about a bluff? A: I remember talking to Mark in this time frame about the issue of if this action -- if this issue becomes an enforcement action, I have a lot of questions as to how it will play out. ... [A]t the point, I was leaning towards this very well could be an issue warranting enforcement inquiry. At that point, I had concerns of how successful would we be as an investigative unit to actually get people to talk to us to the degree and scope and breadth that the Freeh Group did. How successful would we be in getting the documents, in order to unearth facts to then decide what violations occurred that would then bring charges? So I had a question just about the likelihood of an enforcement investigation, while potentially appropriate, actually yielding charges. And then even if charges were brought, because this was an unprecedented issue, how the committee on infractions, acting as an independent judge and jury, would react to those charges. And those were the -- and I shared those questions or concerns with Mark in the sense of I don’t -- I didn’t know what was being communicated to Penn State because I wasn’t a party to those conversations. But I wanted him to know that to me, it wasn’t an automatic that this would wind up before the Committee on Infractions.” Deposition testimony of Roe Lach (Nov. 11, 2014).
- “Q: The next paragraph down, you state, quote: We could try to assert jurisdiction on this issue and may be successful, but it would be a stretch. Do you remember saying that? A: No, I don’t remember it. But I wrote it here. Q: Did you believe that asserting jurisdiction would be a stretch? A: Well, I think you have to read the next sentence to put it in context. Because I remember initially in November of 2011, having questions about enforcement jurisdiction as I shared earlier this morning. And then once the Freeh Report came out, to me the next sentence is a more accurate statement as to where I was at that point. I thought more about this. We could make a control argument based on ethical failures by senior leaders. It’s reasonable and logical. I just wasn’t sure how the committee on infractions would react to those charges because this was, for the most part, a case of new impression and it was unprecedented. So it’s -- I think you’ve got to put that stretch in context with the overall assessment here where I was saying it actually makes sense. It just would be new. So not a stretch in terms of this doesn’t make any sense. A stretch in terms of we’re stretching beyond where we’ve been in the past, but that’s because this is unprecedented.” Deposition testimony of Roe Lach (Nov. 11, 2014).
- “Q: Was President Emmert any more image-conscious than prior leadership? A: I only have experience with one other leader, and that is Myles Brand, and the answer is no. Q: And you believe that pursuing allegations against Penn State would not have enhanced the association’s standing with the public? … A: I agree -- my position is that I don’t believe any action was taken simply to do that. Q: Then why was action taken? A: I believe action was taken because there was clear evidence that the institution did not exercise institutional control, and that lack of institutional control led to young boys being raped for over a period of 10 years. Q: Where would that evidence come from? A: The evidence came from both the – what had happened on the indictment, and what we would find later was included in the Freeh Report, which the university accepted.” Deposition testimony of Bob Williams, NCAA senior vice president of communications (Nov. 6, 2014).