Jerry Sandusky Scandal

Expert: Penn State unlikely to face NCAA sanctions

A man who once led the NCAA’s committee on infractions says the college sports governing body should not bring severe sanctions on Penn State related to the Jerry Sandusky child sex abuse scandal.

Gene A. Marsh, who served on the NCAA Division I infractions committee from 1999 through 2008, and chaired the committee from 2004 to 2006, said he believes there are two reasons the NCAA should essentially stay out of the Penn State situation:

• The charges of which Sandusky was convicted, although horrific, likely do not fall under the purview of the NCAA, which typically reserves its attention for allegations of academic fraud or efforts to gain an unfair competitive advantage.



• Once Penn State goes through the criminal and civil proceedings associated with the case, there would be little to be gained from the NCAA adding another layer of punishment.



Marsh said even the apparent cover-up of Sandusky’s actions — as reportedly shown through emails circulated by top Penn State officials — should go through the criminal courts before the NCAA would get involved.

“I think they ought to leave this one alone, based on the facts,” said Marsh, who is of counsel with the Birmingham, Ala., law firm of Lightfoot, Franklin and White.

“Penn State is obviously going to be held accountable from A to Z,” Marsh said in a telephone interview. “Every bit of that towel will be wrung out.”

Marsh represented former Ohio State head coach Jim Tressel in his dealings with the NCAA after the Buckeyes’ 2010 tattoo scandal.

He said if the NCAA handed down punishment to Penn State after the criminal cases and the lawsuits play out, it would be “like shooting road kill.”

‘Preferential treatment’

Heavy sanctions against the Penn State football team would ripple financially across all of the university’s sports programs.

Penn State’s 2011-12 budget has football generating more than $50.5 million in revenue against $10.4 million in football-related expenses. Men’s basketball will bring in about $6.3 million in revenue versus $3.3 million in costs.

No other sports teams are profitable, and so are dependent on football for their survival, the budget data show.

The NCAA could take no action, or could impose penalties such as the loss of scholarships, banishment from bowl games or the extreme step of imposing the “death penalty” — shutting down the football program for a period of time. Only once has the NCAA imposed that punishment on a football team, against the Southern Methodist University program in 1987 for extensive and repeated recruiting violations.

Penn State spokesman David La Torre said it is “far too early” for anyone in the athletics department to discuss hypothetical NCAA actions.

Michael L. Buckner, an attorney in Pompano Beach, Fla., whose firm specializes in college sports law and NCAA infractions, agreed with Marsh’s assessment.

“From my experience, even with emails between administrators, this does not seem to me at this point to fall under the NCAA’s purview, something that would compel the NCAA to get directly involved.” Buckner said from his office. “The NCAA has never interceded when criminal violations are involved that do not have a specific connection to an NCAA regulation.”

One area of concern for Penn State, Buckner noted, is that the Freeh report — the investigation the university hired former FBI director Louis Freeh to conduct — is expected to show that the athletics department, and especially the football program, often acted outside the university’s judicial process.

That might point to a lack of institutional control, he said, and draw the NCAA’s attention.

“If it is learned that there were specific instances of preferential treatment to athletes,” Buckner said, “that could be an NCAA rules violation.”

Marsh said: “This situation will be fully vetted and punishment meted out. This institution has already been run over by a bus.

“You have the criminal charges, you’ll have the civil litigation. People are losing their jobs,” Marsh said. “The reputational damage to the school is significant. What’s left? In the scheme of things, as far as people and institutions being held accountable for what took place, that is happening.”

Emails and cover-up

Penn State is already pricing its reaction to the Sandusky scandal at $12 million, and civil lawsuits will likely push that much higher.

Two top administrators, athletics director Tim Curley and former vice president for finance Gary Schultz, are awaiting trial in Dauphin County on charges of failure to report abuse and perjury connected with an incident in 2001.

Emails leaked recently suggest that former president Graham Spanier and the late Joe Paterno knew of Sandusky’s actions in 2001 and chose not to take the matter to police.

During last month’s trial, former assistant coach Mike McQueary described that 2001 incident, testifying that he saw Sandusky in a sexual situation with a young boy in an on-campus shower. McQueary said he told Paterno what he saw and heard.

Spanier and Paterno were fired in November in the fallout from a grand jury presentment that detailed allegations against Sandusky, including that he sexually assaulted at least 10 young boys.

Paterno, who had led the Nittany Lion football program since 1966, died in January of lung cancer.

Sandusky was convicted June 22 of 45 counts of child sex abuse based on the testimony of eight victims.

Several investigations into the Sandusky situation are being conducted, including ones by the Freeh team, the state Attorney General’s Office, the state Department of Education, the Big Ten Conference and the NCAA.

“At the end of the day, the NCAA is the least of anyone’s worries,” Buckner said, “or should be, given the serious nature of the matters, which I think should be left to the experts.”

Example to others

Marsh said while Sandusky has been convicted of severely inappropriate behavior, such cases in the past did not draw the focus of the NCAA, which allowed universities to handle such incidents internally or through legal channels.

“The NCAA, as a general rule, has never pursued stuff like that,” Marsh said.

Buckner said NCAA member schools might look to expand the governing body’s influence in light of the Sandusky scandal.

“But if you tighten control,” he said, “what’s to stop the NCAA from looking at all kinds of things, such as whether a coach gets a DUI.”

Marsh sees no grounds for arguing that Penn State gained a competitive edge — even in the area of recruiting — by keeping the Sandusky situation secret.

He said: “Can anybody make a legitimate argument that Penn State stood to gain on the field against Michigan, against Ohio State, against whoever?

“Where’s the recruiting advantage? Where’s the competitive advantage? I just don’t see it.”

Some have argued that the NCAA should make an example of Penn State with heavy penalties.

Marsh said Penn State is already an example to other universities.

“The Penn State situation should make sure people’s attitudes about the welfare of individuals will never be the same again,” Marsh said. “It’s not like the NCAA needs to make a point.”

Buckner added: “We are urging all of our college clients to monitor the Penn State situation and are reminding them that if any allegations arise, that the school is obligated to report any misconduct to the appropriate agency, whether it’s the NCAA or law enforcement.”

Chip Minemyer can be reached at 231-4640. Follow him on Twitter @MinemyerChip

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