A raft of exhibits in state Sen. Jake Corman’s response to the NCAA’s continuing call to protect attorney-client privilege in a Commonwealth Court lawsuit might point to a game of chicken leading up to the crushing sanctions against Penn State in the wake of the Jerry Sandusky child sex abuse scandal.
Attorney Matthew Haverstick included in the filing a list of 288 documents that the NCAA claims are privileged information that cannot be presented for review. Also included are three more redacted emails meant to show just why privilege shouldn’t be an issue.
In Exhibit B, an email exchange between Kevin Lennon, NCAA vice president of academic and membership affairs, and Julie Roe, former director the NCAA’s of enforcement division, points to a discussion of how to address the issue of penalizing Penn State.
“I characterized our approach to PSU as a bluff when talking to Mark (Emmert, NCAA president) yesterday afternoon after the call. He basically agreed b/c I think he understands that if we make this an enforcement issue, we may win the immediate battle but lose the war. ... I think he is okay with that risk,” Roe wrote.
Lennon had questioned aspects of the discussed plans.
“I know we are banking on the fact (sic) school is so embarrassed they will do anything, but I am not sure about that, and no confidence conference or other members will agree to any of that. This will force the jurisdictional issue that we really don’t have a great answer to that one,” he wrote.
He also questioned how Penn State was to be penalized for a supposed gain.
“Delicate issue, but how did PSU gain a competitive advantage by what happened?” he asked. Roe responded that the scandal could have damaged the program’s ability to recruit.
That was July 14, 2012. Nine days later, the NCAA stripped Penn State of 111 victories, took away four years of postseason play, handcuffed scholarships for the football program and instituted a $60 million fine to go toward helping victims of child sexual abuse.
Exhibit D shows Roe arguing for taking away the victories.
“Vacating records is a penalty available to the NCAA just like postseason bans, scholarship reductions, fines, etc. In this case, vacation of the wins is the right move because Penn State had great success on the field from 1998-2012 and those wins were based on a pristine image which was a lie. As a result, those wins need to be taken away,” she wrote to communications Vice President Bob Williams.
Williams, in return, ran proposed language for the NCAA’s press release about Penn State perpetuating a football culture and enabling the abuse.
“That gets it,” Roe replied.
That was July 21, two days before the sanctions. The email that started the exchange, which included a copy that went to NCAA attorney Donald Remy, was redacted.
The emails and their implications are prompting reactions from those still fighting against the sanctions and the consent decree. In addition to Corman and his attorney, others are interested in seeing the whole text of the emails, including the Penn Staters for Responsible Stewardship.
“The recent release of emails proves that the NCAA bluffed Penn State leaders into accepting sanctions which the NCAA had no authority to impose on Penn State.” PS4RS spokeswoman Maribeth Roman Schmidt said in an email. “These sanctions have cost the university more than $100 million,” she said.
“The trustees involved clearly failed to adequately fulfill their fiduciary duty to Pennsylvania’s flagship university and safeguard its assets. We once again, as we did in July 2012, call on these trustees to resign from the board.”
Penn State trustee Anthony Lubrano said the disclosure of emails comes as no surprise.
“I have held all along that the NCAA lacked the legal authority to impose any sanctions on Penn State,” he said. “Not surprisingly, the NCAA itself believed this as well as evidenced by the emails.”
Lubrano said he thinks the email represent the “tip of the iceberg,” adding that the NCAA should “acknowledge its mistake and void the consent decree.”
The NCAA’s day didn’t improve when late Wednesday the state Supreme Court handed down a decision in the sports organization’s appeal asking for a stay and a writ of prohibition in the Commonwealth Court case.
The court’s opinion granted the NCAA permission to file an original process but denied a writ of prohibition that would keep the Commonwealth Court from issuing an opinion and enforcing the Endowment Act, the legislation that would keep the fine money in Pennsylvania.
A third request, for a stay of the Commonwealth Court case, was denied as moot.
Commonwealth Court Judge Anne Covey issued a ruling on the case Friday reaffirming the constitutionality of the Endowment Act.
A trial for the case is scheduled for January.
The NCAA’s standard response on issues relating to the litigation has been no comment, but Wednesday, a statement was released about the emails.
“Debate and thorough consideration is central in any organization, and that clearly is reflected in the selectively released emails. The national office staff routinely provides information and counsel to the membership on tough issues. The NCAA carefully examined its authority and responsibility to act in response to the athletics department’s role detailed in the Freeh report. Ultimately, advised by all information gathered the Executive Committee determined to act and move forward with the Consent Decree,” the NCAA said on its website.
The head of the executive committee at that time was Ed Ray, president of Oregon State University. Ray said in 2012 interviews that the death penalty for the Nittany Lions football program was not on the table.