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Thursday, May 30, 2013
Little culture change at Penn State

By Lester Munson
ESPN.com

When Penn State president Rodney Erickson signed the agreement with the NCAA in July that imposed severe punishments on the university for its role in the Jerry Sandusky scandal, one of the goals of the agreement was to "change the culture that allowed" Sandusky to prey upon young boys for at least 14 years.

Ten months later, as a formidable array of university trustees, professors, former coaches, former players and the family of legendary football coach Joe Paterno file a massive lawsuit against the NCAA, it is clear that the Erickson-NCAA attempt to replace "the fear of or deference to the omnipotent football program" with "the expected norms and values of intercollegiate athletics" has a long way to go.

There is nothing subtle or nuanced about the lawsuit. It is nothing less than a frontal assault on everything Erickson and NCAA president Mark Emmert tried to accomplish in their mutual efforts to bring the Sandusky scandal to a conclusion and to move forward. The legal action includes demands to set aside the entire Erickson-NCAA agreement, to bar the NCAA from further activity against Penn State and to punish the NCAA with damages.

Well written and impressive in its assertions that the NCAA ignored its own rules and procedures and exceeded its authority in its actions against Penn State, the lawsuit demands every civil remedy that is available in American jurisprudence. It accuses Emmert and the NCAA of "malicious" and "unjustified" actions in the scandal and clearly seeks to put the culture of the NCAA on trial and end the attempt to change the culture in State College.

This lawsuit comes five months after Pennsylvania Gov. Tom Corbett filed his bizarre antitrust attack on the NCAA in federal court in Harrisburg. But this lawsuit, unlike the Corbett action -- the judge is considering the NCAA's request to dismiss that case outright -- is a serious effort that will determine the success or failure of the NCAA's efforts in the worst scandal in the history of college sports.

Must the NCAA have adopted a rule that states "Thou shalt not facilitate, enable or cover up for a serial pedophile" before the NCAA can intervene?

The lawyers representing the trustees, the professors, the coaches, the players and the Paternos are a formidable unit and include Paul Kelly, a brilliant former federal prosecutor who led the investigation of disgraced NHLPA leader Alan Eagleson and later served as head of the NHLPA.

The group was clearly reluctant to file its lawsuit, waiting nearly a year after the agreement on the sanctions. As Kelly told ESPN.com on Thursday, "They had no choice but to resort to the courts since the NCAA acted in an area in which it had no authority, failed to follow its own rules, forcibly imposed an onerous result on innocent parties and then refused to recognize any effort to appeal within the NCAA's own administrative process."

The case is based on a tight reading of the constitution and bylaws of the NCAA, includes serious allegations against Louis Freeh, the former FBI director who led the investigation of the scandal for Erickson and the university, and accuses the NCAA of bullying Erickson into accepting sanctions that were not based on any violation of any NCAA rule.

But the flaw in the lawsuit may be that it is directed against the wrong target. It was Erickson who, faced with the real possibility of the imposition of the death penalty on the football program, accepted the NCAA's sanctions and signed a detailed agreement. In the agreement, Erickson certified that he and the university had "taken all actions necessary" to make the agreement and that it was "consistent with and allowed by the laws of Pennsylvania."

The NCAA and Emmert negotiated with Erickson, who was acting on behalf of the university. If the Paterno group of trustees and professors are not happy with the agreement, shouldn't they address their complaints to Erickson, a president who was claiming to act on their behalf? Some trustees took issue with Erickson last year, saying that the decree should be considered "null and void" because Erickson "lacked the legal authority" to enter into such an agreement without the full board of trustees' approval. So why then, is he not a target in the lawsuit?

The key to the success of the lawsuit will be the court's interpretation of the authority of the NCAA. In impressive detail, the lawsuit uses the language of the NCAA's constitution and bylaws to assert that the NCAA's authority is limited to recruiting and the integrity of athletic competition.

"The NCAA has never before interpreted its rules to permit intervention in criminal matters unrelated to athletic competition," the suit states. "The reprehensible incidents involving Sandusky were criminal matters that had nothing to do with securing a recruiting or competitive advantage for Penn State and its athletics program."

If the Paterno group is to succeed in any of its demands, it must be able to convince a court that its version of the NCAA's authority is the correct version and that the NCAA is limited to regulating recruiting and competitive advantage. It will not be easy. The consent decree that Erickson and Emmert signed lists no fewer than eight NCAA rules that Penn State violated, including a requirement that coaching staffs "promote the character development of participants, enhance the integrity of higher education and promote civility of society." It will be difficult for the Paterno group to reconcile the NCAA's requirements of "ethical conduct" and "individual integrity" cited in the consent decree with the rape of a 12-year-old boy in a shower in the football locker room.

The Paterno group is particularly unhappy with the investigative work of Freeh and his firm. Its conclusions, the suit states, "are wrong, unsubstantiated, and unfair." It was nothing less than a "rush to injustice." Relying on a report prepared by Richard Thornburgh, a former governor of Pennsylvania and a former attorney general of the U.S., the suit states that the Freeh report "has been thoroughly discredited."

Even if the attack on the Freeh report is partially accurate -- an unlikely assumption -- the Paterno group's grievances appear to be with Freeh and Erickson, who hired Freeh and relied on his work when he agreed to the NCAA sanctions. They have not sued Freeh or Erickson.

In its description of the limits on the NCAA's authority, the Paterno group relies on the assertion that in the thousands of pages of NCAA regulations there is no rule that prohibits what happened at Penn State. Although the assertion appears to be technically correct, it may not be enough for the group to succeed.

Must the NCAA have adopted a rule that states "Thou shalt not facilitate, enable or cover up for a serial pedophile" before the NCAA can intervene?

It is clear from the NCAA regulations in the consent decree signed by Erickson and Emmert that the NCAA, in addition to its efforts on recruiting and athletic competition, sets standards for "ethical conduct" and "respect, fairness, civility, honesty, and responsibility."

The Paterno group clearly feels that Emmert was anything but civil and respectful in his negotiations with Erickson. "It was not a negotiation," the suit states. "It was an unlawful and non-negotiable 'cram-down' of a list of predetermined sanctions and penalties." The Paterno group and its lawyers describe Emmert's behavior as "tortious," a legal term that means harmful or unlawful. But even assuming that Emmert was bullying Erickson, it is difficult to see how it morphs into anything that is illegal or can become the basis of a court action. Emmert and his attorneys would argue that he was doing exactly what he was duty-bound to do as president of the NCAA -- define a set of actions to punish and correct the worst scandal ever in college athletics.

If Erickson had refused to agree to the consent decree, the NCAA would have initiated its usual procedures of investigation and enforcement and a possible death penalty. The Paterno group argues that the death penalty is imposed only in situations involving "repeat violations," but it would be easy to find repeat violations in 14 years of cover-up of Sandusky's predations.

The lawsuit is impressive in its description of the NCAA and its regulatory procedures; it's impressive in its demands for relief from the sanctions imposed in the Erickson-NCAA agreement; and it's impressive in its group of trustees, professors, former coaches and former players who seek to defend the legacy of Joe Paterno.

Its outcome will be a major factor in determining whether the change in culture that the NCAA and Erickson sought will become a reality.