NCAA Asks for Judgement, Says Penn State Wasn’t Under Duress
The NCAA is getting in the email game this week, filing a motion for summary judgement in the Corman lawsuit (i.e. asking the court to rule in its favor sans trial based on the merit of the facts) arguing that Penn State willingly entered into the NCAA consent decree. Corman’s lawsuit rests, in part, on the fact that the consent decree was entered into illegally or under some degree of duress.
The NCAA’s argument for willfulness hinges on three main factors: The fact that Penn State consulted with five qualified attorneys when deliberating the consent decree, that most members of the Board of Trustees have accepted the consent decree and chosen not to contest it, and that the death penalty was never threatened, but merely considered as an option. These lawyers include general counsel Steve Dunham and Gene Marsh, who communicated with the NCAA on behalf of Penn State, among others. Marsh, in particular, is the focus in most of the emails, as he seemed particularly amicable to many of the NCAA’s suggestions to punish Penn State.
“My conference call today with Pres. Erickson and the other folks involved was very positive and encouraging,” Marsh wrote to NCAA general counsel Donald Remy on July 19, 2012, four days before the consent decree was signed. “I think we will very quickly get to the point where PSU agrees with the ideas that have been put forward – perhaps with a little windage, but not much – so that Mark Emmert will be able to make a presentation to the NCAA board that can be defended.”
To me, that email begs the question of what exactly Marsh’s role was. Was it to advocate for Penn State or was he more of a conduit to convince the university to accept the NCAA’s penalties? None of the emails released in the last two weeks show that Marsh or Penn State actually advocated for NO penalties or suggested that the NCAA was going beyond its purview. The water muddies even more in an email from Marsh sent one day later trying to help with public perception.
“I hope that when this thing gets a public announcement, Mark Emmert will clearly describe the strength of feeling on the board regarding the possible application of the death penalty etc. and point out that the actions of Penn State in hiring Freeh and on the corrective side were fully considered,” Marsh wrote. “In bringing the ‘community’ along in buying in to this – way beyond Penn State – folks need to have that understanding.”
Marsh continued to focus on positive PR for Penn State and its leadership on the day of the sanctions in an email to David Berst, the chairman of the Infractions Committee.
“Mark’s statements regarding Erickson were good,” Marsh said. “The most helpful part was saying that were the death penalty to be imposed, there would also have been additional penalties. I believed that to be the case from the start. The comments re Erickson were also terrific.”
“There will be caustic critics and experts on ‘due process’ etc.,” Marsh continued. “I’ll get tagged I’m sure, but I could truly care less. Truly. Folks who comment from the outside are all hat and no cattle.”
Another email of note was sent from Remy to Marsh a couple months after the sanctions were announced. Ed Ray, the chairman of the NCAA Executive Committee, made news after emails from him surfaced claiming that the death penalty was never threatened to Penn State, contrary to what had previously been reported. Marsh brought the story of the emails to the attention of Remy, who sent a lengthy response that outlined the NCAA’s thoughts at the time. Basically, Remy asserts the death penalty was considered and never threatened, and that Penn State wasn’t forced into the consent decree, but rather, weighed its options when deciding to sign.
“In NO communication by David Berst or me did we ever threaten that the so-called death penalty would be imposed if Penn State did not agree to the consent decree,” Remy wrote. “Nor did I ever communicate that a multiple year death penalty was planning to be imposed. Any assertion to the contrary is flat out false.”
“We did tell you…that a majority of the Board members favored stronger penalties, and that the same majority favored the death penalty,” Remy continued. “We explained…that an enforcement and infractions process [if Penn State did not sign the consent decree] — with a “long hard slog” — could likely result in the death penalty being imposed. It was Penn State’s cooperation and transparency that encouraged members of the executive committee to forego the pursuit of a stop in play.”
“At all times prior to the execution of the consent decree, Penn State was free to repudiate the Freeh report, withdraw its consent, and/or reject the direction of the NCAA Executive Committee and either litigate against an imposition of penalties by the Executive Committee or ‘roll the dice’ with the enforcement and infractions process. The decision to not do so was Penn State’s decision, not the NCAA.”
So, what do we learn? For one, it doesn’t appear like Penn State or Marsh put up much of a fight to advocate for no sanctions, nor does it seem like the university pushed very strongly for the argument that the Sandusky situation was a legal matter and beyond the NCAA’s purview. Perhaps Penn State/Marsh raised more of a fight than we’re seeing, but it doesn’t appear to be so. Also, it is still unclear how forcefully the NCAA threatened the death penalty — it is clear the option was seriously on the table at various points in the NCAA timeline, but it’s not clear how much that factor played into Penn State’s decision to accept the consent decree. Remy’s analogy about Penn State choosing not to roll the dice seems apt.
One thing is for sure — this whole case is one of the deepest, most complicated rabbit holes I can imagine. Below are the new documents for your perusal.