On death's door
Inside the negotiations that brought Penn State football to the brink of extinction
NCAA Announces PSU Sanctions
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hen Gene Marsh got the call on the morning of July 17, he was holed up in a one-room cabin -- with no running water and no toilets -- in woodsy Chebeague Island off of Maine. "A shack fit for the Unabomber," says Marsh, a 60-year-old tart-tongued Tuscaloosa, Ala., lawyer. Only six days earlier, he had been hired by Penn State to help negotiate sanctions from the NCAA in the wake of the Jerry Sandusky child sexual abuse scandal. On the phone was Donald Remy, the NCAA's general counsel. The news was grim. Remy said Penn State was facing an unprecedented punishment: a multiple-season death penalty, no football for years.
"Are you overselling this?" Marsh asked.
"Absolutely not," Remy said.
As he sat in his cabin, "I just imagined an empty stadium," says Marsh, a former chairman of the NCAA's infractions committee who has since defended many schools and coaches before it, including former Ohio State coach Jim Tressel. "I thought about the wind blowing through the portals and all the economic and social and spiritual ramifications of that empty stadium. And this would last years?"
That same morning, NCAA President Mark A. Emmert called Penn State President Rodney A. Erickson and told him the majority of the NCAA's Division I board of directors -- 18 university presidents -- had coalesced around a decision: Shut down Penn State's football program for four years.
This moment didn't feel like the beginning of a negotiation to Marsh. "In federal bankruptcy court," he says, "there is a concept of a cram-down -- a judge tells creditors, 'Here's the deal, this is all you are going to get, a few pennies on the dollar, and you should be happy with that.' You know, take it or leave it, because you don't really have any choice.
"Well, this was the NCAA equivalent of a cram-down."
o understand how Penn State arrived at that moment, one has to return to last November.
The Nov. 5 arrest of Sandusky and the perjury charges against athletic director Tim Curley and Vice President Gary Schultz had sent Penn State's 32-member board of trustees reeling. The shock wasn't just how little the board had known; it was that even knowing just a little, they still did nothing. Boards of major public universities typically are engaged: They hire and fire the leadership, raise big money and look out for financial and other damage. But after being briefed about the Sandusky criminal investigation by then-President Graham Spanier at a May 2011 board meeting, Penn State's trustees were so incurious about the matter that none of them posed follow-up questions at meetings in July and September.
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Even worse, a handful of trustees, including then-board chairman Steve Garban and Pennsylvania Gov. Tom Corbett, who had opened an investigation into Sandusky in 2009 as the state's attorney general, knew more details and the danger facing the university but said nothing.
Emmert, the former president of the University of Washington and chancellor at LSU who once said big-time football was critical to the latter, had become president of the NCAA in 2010. Already during his tenure, the organization has been criticized for its slow, sometimes toothless reaction to a number of football improprieties, including a scandal at the University of Miami involving payments and prostitutes and one at North Carolina in which athletes were suspected of attending bogus classes. Emmert had been outspoken about the NCAA's need to reform its enforcement procedures, which typically ran through the NCAA's infractions committee and could drag on for months and even years before they were resolved. He is often characterized by members of the media and some fans as either tone-deaf, powerless or stubborn. Despite that criticism, he crisscrosses the country, imploring anyone who will listen that the NCAA stands for education ahead of athletics and high ideals above all else.
The scandal at Penn State, Emmert told colleagues, offered an opportunity to take a bold stand. He was determined to open an aggressive inquiry that would not follow the usual NCAA procedures and would focus not on infractions but on systemic failures and "loss of institutional control."
On Nov. 17, Emmert sent a letter to President Erickson, the soft-spoken longtime No. 2 at Penn State who'd agreed to fill in at the top job the previous week, when the crisis began. (Spanier had been fired.) Emmert asked the university to explain its actions in the Sandusky matter and, signaling his intentions, excerpted a part of the NCAA's constitution, Article 2.4, that rarely if ever comes up in investigations.
It covers "fundamental values" for all those associated with athletic programs to follow. Those principles of respect, fairness, civility, honesty and responsibility, Emmert wrote, represent "the bedrock to the foundation of intercollegiate athletics; and the membership of the association has made clear through the enactment of relevant bylaws that they are expected to be respected and followed."
Shortly after writing the letter, Emmert spoke with Erickson, who told him that Penn State was planning to do its own investigation and asked Emmert to hold off until the university finished its probe.
"They argued for us to not get involved, to wait," Emmert says. He agreed under one condition: Penn State had to share its findings with the NCAA. Emmert says he was impressed by the university's "willingness to be totally open and work with us at every step of this process."
A few days later, Penn State trustees announced the hiring of Louis B. Freeh, who had served as FBI director from 1993 to 2001, to investigate the scandal, including the university's response, and make recommendations to ensure something like it doesn't happen again. Trustee Ken Frazier vowed that Freeh's investigation would show no favoritism toward anyone at Penn State, including trustees. Several trustees said the looming NCAA inquiry was one factor in their deciding that a sweeping probe was necessary. Frazier, the president and CEO of Merck & Co., had recommended Freeh, several trustees said.
"Our mandate is clear," Freeh told reporters at a Nov. 21 news conference. "We have been tasked to investigate the matter fully, fairly and completely."
On Nov. 28, Emmert spoke with Frazier by phone to discuss how the NCAA and Penn State would proceed following the investigation, an NCAA official said.
The announcement of Freeh's probe bought time for the trustees and university officials to try to move beyond a disastrous month for Penn State. Even more important, NCAA officials could now stand by and let Freeh and his investigators do their work for them.
very two weeks last winter and spring, Penn State's general counsel updated the NCAA general counsel on Freeh's progress. Nothing substantive, Emmert says. "No details -- just a status update."
During a news conference in Philadelphia on July 12, Freeh released the 267-page report. It found that Spanier, Curley, Schultz and coach Joe Paterno had known about Sandusky's conduct before he retired as assistant coach in 1999 but failed to take action. The four men "failed to protect against a child sexual predator harming children for over a decade." The report also blamed the trustees for fostering a "football first" atmosphere and for failing to create "a 'tone at the top' environment wherein Sandusky and other senior university officials believed they were accountable to it."
Mark Emmert was at home, in Seattle, as he read that appraisal. "I was struck by how thorough the investigation was," he says. "We could not have duplicated it if we had done our investigation."
As Freeh spoke, the Penn State board of trustees watched the telecast inside a conference room at the Radisson Hotel in Scranton, Pa., where they were beginning two days of regularly scheduled meetings. Several trustees interviewed for this story say they don't believe any of the trustees had the time and opportunity to read all 267 pages of the report during that hectic day. "Most of us skimmed it, if that," says one trustee. "I read about 50 or 60 pages, and that took about two hours."
Yet at 11:30 that morning, Karen Peetz, the chairwoman of the board, was huddled with members of her 11-member executive committee and other trustees to write a statement for the media to be delivered later that day. At 3:30, Peetz and Frazier told reporters that the trustees accepted full responsibility for the school's failures outlined in the Freeh report. Emmert would later speak of the trustees' "acceptance of the report." But no vote of the full board was taken. Trustees say the day was so chaotic that the board never discussed the report's contents.
"We didn't formally accept the report," a trustee says grimly, "but everyone thinks we did, and that's all that matters." The next day was chewed up with hearings on budget and other matters; the findings again weren't discussed by the full board.
Emmert said he read the report in its entirety the day it was released and reread it twice that weekend. Ed Ray, the Oregon State president and chair of the NCAA executive committee, said he was appalled by the findings of inaction by university leaders after Sandusky's crimes came to light. "Nobody made a phone call, for god's sake," Ray told USA Today.
Emmert called Erickson on Friday night, July 13, to say his board and executive committee had decided to accept the Freeh report, just as Penn State had seemingly done the day before. Penn State had spent a total of $6.5 million on the inquiry, and its findings would now be used by the NCAA as its own investigation against the university.
his spring, on the NCAA website, a page defined the various penalties facing universities that are found to violate the NCAA's rules. The first definition was this: "Death penalty: a phrase used by media to describe the most serious NCAA penalties possible. It is not a formal NCAA term. It applies only to repeat [offenses] " But sometime shortly after the Freeh report was made public, the webpage was removed. Bob Williams, an NCAA spokesman, says the page can now be found at a new link.
Whatever the reason for the webpage's removal, the old rules and procedures were being ignored. Marsh spoke on Monday, July 16, with Penn State's general counsel, Stephen Dunham, and outside counsel Frank Guadagnino, who prepared for discussions that week on what the penalties might be. Typically, sanctions are decided by the infractions committee process; neither the full NCAA board of Division I presidents nor its executive committee takes part. In this case, both groups were being consulted via conference call with Emmert. Marsh said he and his colleagues quickly concluded that there was no use trying to persuade the NCAA to go the traditional route. "Their minds were made up," he said.
Still, in phone calls Tuesday morning, July 17, through late Thursday, July 19, the lawyers pleaded with the NCAA to consider abandoning the death penalty. Marsh, a partner in the law firm of Lightfoot, Franklin & White in Birmingham, Ala., carried a handwritten list of mitigating circumstances he brought up whenever he spoke with Remy and Remy's colleagues:
• Penn State had commissioned the Freeh report.
• Penn State waived attorney-client privilege, allowing the findings to be made public.
• The trustees accepted responsibility for the many shortcomings identified in the report.
• Paterno, Spanier, Curley and Schultz were no longer affiliated with the university.
• Penn State's football program was not a repeat offender, having never been found guilty of a major NCAA infraction.
• Penalties would harm many people who were not responsible: current players, the new coaching staff and, in lost dollars, central Pennsylvania residents.
• Penn State would pay enormous financial penalties, to the NCAA, in civil litigation and to the Big Ten.
• Penn State was going to implement most, if not all, of the Freeh report's 119 recommendations for reform and would also agree to an athletic integrity agreement with the NCAA.
mmert and Erickson say they also spoke several times that week about the sanctions. Erickson says he made his case directly with Emmert for the NCAA to avoid the death penalty. As arguments were made, the two also discussed sanctions that included a financial penalty, a lengthy postseason ban, the loss of scholarships and the vacating of victories. "The whole process was very fluid," Marsh says. "People had strong feelings, and no one quite knew how it was going to end."
NCAA Sanctions Against Penn State
• $60 million fine
• Vacating of wins from 1998-2011 (112 wins)*
• Four-year postseason ban
• Four-year scholarship reduction (10 initial; 20 total)
• Players may transfer and play immediately at other schools
• Athletic department on probation for five years
* Joe Paterno record now 298-136-3; fifth on FBS all-time list
• Big Ten blog: Reaction, analysis
By late Thursday, back in his home office in Tuscaloosa, Marsh and his fellow lawyers began talking about Penn State's willingness to accept a package of severe sanctions that would not include the death penalty. He felt cautiously optimistic. Then at 6:30 p.m., Marsh's office phone rang, and he was told again that a majority of the university presidents on the board still favored a multiple-year death penalty. After all of Penn State's arguments, he was stunned by the board's continued stance.
"I just thought we were past that," he says. "The idea you'd be driving by an empty stadium with 108,000 seats every Saturday in the fall for four years and no football team playing there well, to me it was just unthinkable."
The next day, Friday, July 20, while the public focus was on whether Joe Paterno's statue outside Beaver Stadium would be taken down, Erickson met with several trustees in his office. He said nothing about the discussions with the NCAA. In fact, while he had been consulting with Peetz and other trustees on the executive committee, Erickson had never mentioned the threat of penalties to the full board.
Back at NCAA headquarters in Indianapolis, Emmert spoke by phone with Erickson, who listened attentively but also continued pushing his arguments, university officials say. Sometime that Friday, Emmert and his colleagues decided to drop the death penalty and move forward with an agreement between Penn State and the NCAA outlining the package of sanctions. Says one Penn State official, "Erickson would later say, 'Emmert was our friend in this.'"
In an interview, Emmert hints that he helped convince his fellow board members -- the 18 university presidents -- that too many innocent people in and around State College would be hurt by a multiyear death penalty. He acknowledges he'd heard Erickson make the argument more than once that week. "President Erickson has been wonderful throughout this," he says. "He deserves a lot of credit."
Emmert refuses, however, to say that the decision to drop the death penalty, despite its forward momentum, was either his unilateral decision or one he'd lobbied his colleagues to accept. "In the end," Emmert says, "this is best characterized as a group decision. This was a thoughtful and deliberate process."
That afternoon, Marsh was again stunned, this time to learn by phone that the draft of an agreement without the death penalty would be coming by email. Marsh and Erickson say it is hard to know why the death penalty had been removed. But on the Penn State side, there was hardly a sense of victory. The penalties included a $60 million fine, a four-year bowl ban, scholarship losses and the vacating of wins from 1998 through 2011, erasing 111 from Paterno's total that would cause him to fall from first to fifth among FBS coaches. Regarding the insistence on vacated wins, Marsh says, "I guess the idea is conceptually to take away ill-gotten gains." The NCAA, he says, thought decisions to conceal Sandusky's crimes "improved the success" of Paterno's football program.
Through the evening on Friday, Marsh sat in front of his laptop computer, continually checking his inbox for a draft of the agreement, known as a consent decree. "I was just staring at the computer, waiting," Marsh says. Until it arrives, it's not offered, he thought. "It was silly, but I just kept staring." Not long after midnight, the nine-page document arrived.
hat weekend, only Peetz and her executive committee were told about the consent decree or that sanctions were imminent. Those trustees did not tell their colleagues. This was by necessity, university officials say. The NCAA had warned Penn State that if there was a leak about proposed sanctions to the media, the discussions would end and the death penalty would be all but certain.
On Sunday, July 22, workers arrived at the Paterno statue before dawn. By 8:40 a.m., the statue was removed and carted by forklift inside Beaver Stadium. A trustee said hopefully that morning, "Maybe this will help us with the NCAA. It shows that we are moving on." But minutes later, the NCAA issued a news release that at 9 a.m. the next day in Indianapolis, Emmert and Ray would announce sanctions against Penn State. "Unprecedented" sanctions, the media reported.
"I can't believe this s---," said the trustee. "No one told me a damn thing."
At the news conference, Emmert outlined the sanctions and expressed hope that they would be both punitive and "corrective," helping Penn State change its "football first" culture, which he said had allowed a sexual predator to run amok for a decade. Copies of the consent decree made public credited Penn State for commissioning the Freeh report and for its reaction to the findings. "Acknowledging these and other factors," it read, "the NCAA does not deem the so-called 'death penalty' to be appropriate."
It was co-signed by Emmert and Erickson.
o in the end, a negotiation did occur. It just didn't much involve the university's stewards, the board of trustees. In the aftermath of the Freeh report, Peetz, vice chairman of The Bank of New York Mellon, says the board is committed to changing its makeup and getting off the sidelines. Erickson will retire inside a year. Public funding for universities is declining. The NCAA has put Penn State's athletic program, including football, under the watch of an athletics integrity monitor, former U.S. Sen. George Mitchell. It's hard to argue a more effective board that's ready to move on wouldn't benefit everyone.
Yet some trustees see little positive in moving forward with Penn State football so changed. Some trustees argue that the package of sanctions was worse than the death penalty. Some remain furious at Erickson. The Freeh group had criticized the board for knowing little about the Sandusky matter and doing even less. And now, when it came to one of the biggest financial decisions in Penn State's history, a majority of the trustees had no idea that Erickson and lawyers were hammering out the agreement. At a three-hour discussion on July 25, trustees demanded answers for the lack of communication, and Erickson and Marsh explained the NCAA demands. Marsh repeated his analogy that it was like "a cram-down," which some trustees later said made sense to them. Afterward, the board released a statement standing by Erickson and saying that if the penalties had not been accepted, the outcome would have been far more Draconian.
Trustees who remain angry are mad at themselves too. Several say the board should not have tacitly accepted the Freeh report's findings within hours of its release. The circumstances have a handful of trustees discussing how to overturn the decree in court. (On Aug. 3, the Paterno family formally challenged the consent decree, filing an intent to appeal with the NCAA.) "This was such overkill," one trustee says. "It's like walking around with a dagger in you. Emmert and the NCAA are basically ruining this university. They are destroying the school."
Indeed, much of the fury is directed at Emmert, who in the end may actually have kept the football program on the field. "What I have seen of him and heard of him, I just can't stand the guy," one trustee says, noting Emmert's comfort roaming the stage during the July 23 presser and his media availability afterward.
Some trustees complain that the NCAA used sanctions as an opportunity for university presidents to exact revenge: The Penn State Way of piling up victories while graduating players at the highest levels was something their own schools could not do.
"Mark Emmert showed himself to be a sanctimonious hypocrite," says Anthony Lubrano, a trustee who joined the board in July and is an unabashed Paterno supporter. "Joe Paterno had more integrity in his little finger than Emmert has in his whole body."
For her part, Peetz, the board chair, would not discuss the simmering anger of some trustees. Through a spokesman, she said, "The decision by President Erickson to sign the consent decree was a painful one, but it was clear the alternative was far more painful. The board supports the decisions that have been made, and we are focusing on the future. It is time to move forward."