Blue White Illustrated

F or all the outraged bluster they've provoked, the most surprising thing about the emails that have been re- leased in connection with Pennsylvania state Sen. Jake Corman's lawsuit against the NCAA is that they aren't really all that surprising. In fact, they echo a lot of the assumptions Penn State supporters have been making for the past two years. We learned, for instance, that the NCAA was mindful of its own public im- age as it grappled with how to deal with the Sandusky scandal – so mindful that president Mark Emmert checked with his PR flacks about editing the Penn State entry on his Wikipedia page. We also learned that some high-ranking ex- ecutives questioned whether the NCAA had the jurisdiction to penalize Penn State in the first place. We're still a long way from under- standing the scope and impact of the emails, which could be the first of many to be released. Corman's suit won't go to trial until January, and Penn State's board of trustees tabled a discussion of the NCAA court cases at its November meeting. University president Eric Bar- ron has promised a review of the Freeh report, which gave rise to the sanctions, and that, too, is going to take a while. But in the meantime, the jurisdictional issues bear some scrutiny, because everything that has happened in the past two years has flowed from the NCAA's decision to intervene in a case that Penn State's supporters have contended was a matter for the criminal courts. The emails make clear that the NCAA was determined to step in, even though the case had nothing to do with academ- ic impropriety or illegal benefits – the kind of violations it exists to chase down. Shep Cooper of the NCAA's Committee on Infractions described the organiza- tion's leadership as "extremely image- conscious" in an email to former col- league Gene Marsh. Cooper added that "if they conclude that pursuing allega- tions against PSU would enhance the as- sociation's standing with the public, then an infractions case would follow." Marsh, who was serving as a liaison between Penn State and the NCAA, de- scribed it as "shooting road kill." Jerry Sandusky had already been convicted. Athletics director Tim Curley and uni- versity vice president Gary Schultz were under indictment, and president Gra- ham Spanier would eventually join them. All three had been ousted by Penn State, as had Joe Paterno. In addition, the university was going to have to pay out millions in civil settlements. What was left for the NCAA to do? A lot, as it turned out. The penalties that Emmert announced in July 2012 were the harshest it had levied since shutting down SMU's program for two years in the mid-1980s. The NCAA may have been "bluffing," as one executive characterized its approach in a recently released email. It may have been "banking on the fact the school is so embarrassed [that] they will do anything," as another exec stated. But it got what it wanted. Or did it? Two years later, Penn State is looking pretty resilient, maybe more re- silient than the NCAA itself. The NCAA has twice rolled back its penalties against the football program, and after reading the email exchanges, one can't help but wonder whether the backtrack- ing was motivated, at least in part, by concerns that it had overreached back in 2012. It also botched its investigation of Miami and was found to have violated federal antitrust law in the Ed O'Bannon case. The irony of the NCAA's recent be- havior is that as it's grown more image- conscious, its image has only gotten worse. And now comes Corman's suit, which threatens to expose even more of its inner workings to public scrutiny. Whether you agree or disagree with the NCAA's con- clusions in the Penn State case, it's rea- sonable to ask how it arrived at them. A lot of people are asking now, and wonder- ing whether the decision-making process was so swift that it failed to account for potential pushback against the Freeh re- port or against the process itself. The NCAA is getting that pushback now, and there's likely more to come. It might have been shooting at "road kill," but some- how, it still managed to misfire. ■ Questions from within about NCAA's jurisdiction State's cooperation and transparency." It did receive less-severe sanctions, which were rolled back in September 2013 and reduced further this past September. In their lawsuit, Corman and McCord contend that Penn State entered into the consent decree while under duress. The NCAA says otherwise, arguing that the university consulted numerous attor- neys before signing the decree. "It is black letter law in Pennsylvania that there can be no claim of duress when a party has an opportunity to con- sult with counsel before entering into a contract," the NCAA's filing reads. "It is not even necessary that the party actu- ally consults with counsel – so long as it could have done so." Corman and McCord originally filed their lawsuit with the goal of forcing the NCCA to distribute funds from Penn State's $60 million fine in Pennsylvania. The NCAA wanted to distribute these funds nationally and has filed a separate lawsuit in federal court. Both lawsuits involve the Endowment Act, which was passed by the state Leg- islature to keep the NCAA's fine in Pennsylvania. Commonwealth Court Judge Ann Covey has upheld the Endow- ment Act and has set a January trial to determine whether the consent decree is a legally valid document. ■

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