- Lester Munson, Legal Analyst
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Even in the view from our Courtside Seat (from which some strange goings-on have been seen over the years) the situation at Penn State is bizarre, and it just keeps getting weirder. We'll get to that little labor dustup in professional basketball and the financial shenanigans down at the Fiesta Bowl eventually, but we just have to start today with
A series of unfortunate events
It's already arguably the worst scandal in the history of sports, and it might be even worse than we think.
How can that be?
The view from our Courtside Seat doesn't naturally lend itself to conspiracy theories. Our long life in sports and the law has taught us the value of cold, sober consideration over feverish, hand-wringing speculation, and the better part of valor might suggest we ignore the cumulative effect of the series of developments being reported out of Penn State this week. Then again, it is, as they say, what it is. So while it pains us to jump off this cliff, we're going to take the plunge in this case.
Here, then, are some elements to the story suggesting the possibility that the Jerry Sandusky-Joe Paterno-Mike McQueary saga and its alleged cover-up could be deeper and wider than we know. Or, at the least, that the alleged cover-up participants' perspective on the institution of Penn State football was even more out of whack than we thought.
• Missing records at The Second Mile foundation: Did Sandusky spend foundation funds on gifts and trips as he enticed victims, as described in the grand jury report? When investigators went to a foundation archive to search for Sandusky's expense reports, they discovered that several years of records had been removed. They remain missing.
• Transfer of title to Paterno home: Less than four months before the public disclosure of the grand jury report, Paterno conveyed total ownership of the family home to his wife, Sue. Was he making the transfer to avoid losing the house in the lawsuits that some of Sandusky's alleged victims are expected to file? An attorney for Paterno says the transfer was an innocent part of an estate planning maneuver, and that might be all it is. But how can we be sure? The house is now in a trust, and the provisions of the trust are not public. The timing of the transfer could indicate an attempt to shield an asset from liability lawsuits.
• State grant to The Second Mile: Why would Pennsylvania Gov. Tom Corbett this summer approve a $3 million grant to Sandusky's foundation when Corbett, as attorney general, had initiated the investigation into Sandusky's sexual abuse of young boys several years earlier? The Pittsburgh Post-Gazette reported the grant (now on hold, according to a spokesperson) this week. According to the grand jury report, all of Sandusky's victims came to him through the foundation and its outreach.
• University president's lobbying to conceal police records: Graham Spanier, dismissed earlier this month as the president of Penn State, argued aggressively in the Pennsylvania legislature in 2007 for the adoption of a law that now exempts university police records from public disclosure. The records now covered by the Spanier-sponsored law include documents concerning the first investigation of Sandusky back in 1998 and 1999. It is highly unusual for the police force of a public university to be protected from public scrutiny.
• McQueary's continued association with Sandusky: Less than four weeks after assistant coach Mike McQueary told the grand jury that he saw Sandusky raping a young boy in a shower, McQueary reportedly participated in a charity flag football game in which Sandusky was a coach. A few months later, McQueary and Sandusky apparently both were involved in a celebrity golf outing.
• Possibility of postseason football: As Christine Brennan asks in a powerful column in USA Today, can you imagine Penn State in the Rose Bowl? Or even the Big Ten championship game? It could happen. Isn't there anyone in State College or in Harrisburg who can see clearly enough to say that the Penn State football season should end with its game against Wisconsin on Nov. 26? It is unseemly enough that the team is playing out its regular season.
Maybe there's nothin' to it. Maybe it's all coincidental. But looking at these developments all together from Courtside Seat's perspective, the possibility of a breathtaking cover-up attempt that extended throughout the university and possibly into the state capitol is difficult to keep from creeping into the consciousness. Let's hope it isn't true; because if it is, it is a gruesome picture of people in high places acting at the lowest level. It makes Chappaquiddick and Watergate look benign. And as news keeps coming out of Pennsylvania, it might even get worse.
Here comes the judge er, the judges
There is Judge Paul G. Gardephe in New York.
There is Judge Patrick J. Schiltz in Minneapolis.
And there is a judge to be named later in San Francisco.
All of them, for now, have roles to play in the litigation drama involving NBA owners and players. But in a matter of a few days, only one of them will be making the decisions on the players' claim that the owners' lockout is a violation of American antitrust laws.
The judge in New York has been contemplating the situation since early August, when NBA owners raced into the federal court to try to stop the players from disclaiming their union and suing the owners. But Judge Gardephe has done nothing decisive in the dispute yet, despite opportunities to resolve the situation. His most recent action was to postpone a decision by asking both sides for additional briefs.
The judge in Minneapolis is the same judge who removed himself from a similar case filed by the NFL players after they decertified their union. He had once represented the league in one of the many antitrust cases filed against the NFL in Minneapolis. Will he recuse himself from this newly filed NBA dispute now? No one yet knows.
The judge to be named later in San Francisco will consider the players' second lawsuit, a claim that is almost identical to the case the players filed in Minneapolis. (It isn't clear why the players and their lawyers filed two essentially identical lawsuits in two places. They won't discuss it. The best guess is that they were hoping to double their chances to present their case somewhere other than New York.)
Ultimately, only one of these judges can preside. Who will it be?
"It's a conundrum," observed one of the lawyers in the litigation, who did not want to be identified. "We know that it will be one judge and it will happen fast. But we don't have any way of knowing who it will be."
With three judges and three lawsuits, it's difficult to predict a final location for the litigation. Both sides are awaiting actions from all three judges. The players are hoping that Judge Gardephe in New York will dismiss the owners' lawsuit as premature, a filing that was made while the players were still in their union. If Gardephe rules for the players, they will be able to choose between Minneapolis and San Francisco. But, as noted, Gardephe has been indecisive thus far. The owners will insist that the players' lawsuits in Minneapolis and San Francisco should be transferred to New York because the owners were the first to file litigation.
As they await actions in the three suits, both sides are hoping for a judge and a series of legal precedents that will favor their positions. The legal precedents in the federal appeals court for New York appear to favor the owners. The legal precedents in the higher courts governing Minneapolis and San Francisco appear to favor the players.
Even though the selection of the presiding judge is expected to happen quickly, there is no guarantee that anything else will happen quickly in the resolution of the dispute. The fans' best hope for a season is that the judge who winds up with the dispute invests some judicial time attempting to bring the parties together in an agreement.
Give and take in Phoenix
There are some surprises in the federal indictment in Phoenix this week of the Fiesta Bowl's former second-in-command.
The first surprise is that Natalie Wisneski was the only bowl official charged with crimes. The second is the indictment's description of the pathetic and amateurish efforts that Wisneski and other officials made to conceal their illegal campaign contributions. And the third is the bizarre pattern of their attempts at political support.
Four other bowl officials are described in the nine-count indictment against Wisneski, 47, the bowl's former chief operating officer, but those officials are identified only as "Officers A and B" and "Lobbyists C and D."
A comparison of the charges in the indictment with the 276-page investigation of the bowl by a private law firm shows that Official A appears to be former Fiesta Bowl CEO John Junker and Lobbyist C appears to be Gary Husk, a former federal prosecutor and assistant attorney general whom Junker hired as a lobbyist. The Arizona Republic reported that its sources confirmed the identifications of Junker and Husk as Officer A and Lobbyist C.
The Fiesta Bowl is operated by a complex cluster of four non-profit foundations. All are barred by federal law from making contributions to candidates for political office. According to the indictment, Wisneski and the other officials must have known of the prohibition. They made their contributions by asking 11 other bowl employees to donate to certain candidates and then reimbursed the bowl employees.
The reimbursements came in the form of checks labeled "bonus" or "child care." Investigators quickly and easily matched the contributions and the reimbursements even though, the indictment states, Wisneski occasionally reimbursed staffers in amounts slightly different from their supposed contributions.
For her work on the political contributions and other bowl efforts, Wisneski was paid $391,824 in 2010.
Numerous reports suggest that Wisneski has been cooperating in the federal investigation and in two other investigations of alleged Fiesta Bowl chicanery. A cooperating witness in a federal conspiracy investigation is frequently the first to be charged, but it is ordinarily in the form of one or two lesser charges. Wisneski is charged with nine serious felonies.
The serious charges against her might be the result of some discrepancy in her statements to investigators, a warning to her of what could happen if she fails to be truthful.
The prosecutors in Phoenix will not discuss the charges against Wisneski, nor will they discuss the next steps in their investigation. But the language of the Wisneski indictment is the language of a multi-party conspiracy, and additional charges against more Fiesta Bowl officials seem likely.
Reviewing the charges against Wisneski, it is difficult to see what she and the other Fiesta Bowl leaders were trying to accomplish with their political donations. They gave a total of nearly $40,000 to two governors of Arizona, two U.S. Senators, a member of the U.S. House of Representatives, the speaker of the Arizona House of Representatives, a county supervisor, another state legislator and two mayors of Scottsdale.
There seems to have been little that any of these political leaders could do for the Fiesta Bowl, although there were some small state subsidies granted to the enterprise.
It might be simply that the officials enjoyed an excess of available funds (the "non-profit" business enjoyed a surplus of $1.8 million after all expenses in 2008) and enjoyed acting like big shots, flashing their cash as contributions to politicians such as Sen. John McCain. (Most of the politicians who received the contributions apparently donated them to charity. McCain, for example, reportedly gave $27,300 in Fiesta Bowl money to charities.)
Wisneski will be standing alone when she appears in court on Nov. 30, but she likely will soon be joined by others in a prosecution that could expose the reality of "non-profit" bowl games.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.