ESPiN reports "Penn State trustees filing appeal"

NC_Buckeye's picture
August 6, 2012 at 4:27p
62 Comments

At least four Penn State Board of Trustees members intend to file an appeal Monday afternoon with the NCAA over sanctions levied against the university after the Jerry Sandusky child sex-abuse scandal because they say the NCAA did not give the school due process in meting out its punishment.

Trustees and a person with first-hand knowledge of the discussions said the move is a precursor to a federal lawsuit asking a federal judge to invalidate the sanctions, because trustees expect the NCAA to reject the appeal.

The trustees are also trying to determine whether university president Rodney Erickson had legal authority to sign a consent decree agreeing to the package of sanctions -- a $60 million fine, a four-year bowl ban, scholarship losses and the vacating of wins from 1998 through 2011.

Ryan J. McCombie, a retired Navy SEAL who joined the board in June, spearheaded the challenges on Monday, writing to fellow board members in a letter obtained by ESPN's "Outside the Lines" that he has hired Boston attorney Paul Kelly to file the appeal and that trustees should join him in his effort against the NCAA and in trying to determine whether Erickson had authority to act alone.

Kelly declined comment but said the appeal would be sent to the NCAA around 4:30 p.m. ET.

McCombie, one of three new trustees elected by alumni to the 32-member board, was one of the most outspoken trustees at a July 25 board session about Erickson not consulting a majority of trustees before signing the consent decree, trustees said.

link

Four thoughts.

  • I feel sorry for Erickson. What a thankless position he is in. The only reason he didn't run this by the BoT is because of McCombie and the other new pro-Paterno board members. They almost certainly would have leaked the negotiations.
  • Anyone else wondering if Emmert regrets talking the NCAA Board of Directors out of the death penalty. Some other commentor on 11W said this last week. A civil suit would allow the NCAA to use subpoena power in an investigation. This could get very interesting.
  • The Paterno cult has obviously forgotten that the Dept of Education investigation is ongoing. All of these actions they are taking are going to have repercussions. Very, very bad repercussions.
  • By the time the cult is finished, there will only be a giant crater left in Happy Valley.

 

Comments

Northbrook's picture

Hey PSU, keep screwing with the NCAA. Go ahead, what could happen? Muhahahahahaha

BrewstersMillions's picture

Oh this is just too friggin much...
"McCombie closed his letter by writing: "I know my actions will be poorly received by some on this board and in the community at large. To that end it would be easier to remain silent and allow these unfair actions to remain unchallenged. I cannot do this.""
REMAIN SILENT? UNFAIR ACTIONS? You dare use those actual words? Fuck you. All of you. Each and every one of you affiliated with the school. This is disgracefull.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

FROMTHE18's picture

this would be absolutely hysterical if because of PSU's continued denial, the NCAA found more  and more information and actually gave PSU The 4 year death penalty....this is insane

BrewstersMillions's picture

So these board members are saying "We just won't sit there and take this lying down! We'll fight back! We won't remain silent!"
If only the worthless human being you idiots all worship felt the same way about...oh...you know kids getting raped.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

tennbuckeye19's picture

You're forgetting who the real victims are in all of this: the school, the football program, and Paterno's legacy. 

Pam's picture

And don't forget the local businesses that will go under due to the unfair punishment to PSU football. So many victims that it makes you almost forget there were children involved.

BrewstersMillions's picture

Right? Franco Harris, this new knucklehead, the alumni association, all of them. No one gets it. They never will. Nothing has\will ever change.
I wish Emmert pushed the button.
 
OH.MY.GOD....THEY EXIST. A BSD Comment just made my day....
"wow...anyone seeing outside the lines?? i cant event look at joe’s face anymore without barfing a little in my mouth. i feel like one of those women you see on 60 minutes that was conned by the man she was married to for 20 years and it turns out he was a totally different person that had 3 other families around the country."
Thank you so much whoever you are, random lady Penn Stater. Thank you.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

tennbuckeye19's picture

He showed them mercy and yet they still don't get it. I agree, he should've just given them the 4 year ban.

Pam's picture

I did something I never do and visited the PSU rivals board. HOLY SH!T! One poster said they should have a concert like a Live Aid type deal to raise money to pay for scholarships (totally not getting that they lost schollies and can't get them back by paying for them) and have Franco Harris be the MC (why not just get Bono?). They  have letter writing campaigns to Emmert figuring if they get 100K he will actually reduce or eliminate the penalties.  Whatever these folks are smoking I would like a bowl passed my way.

BrewstersMillions's picture

I find it just fascinating that you read that and are still able to type coherently here as I assume you had to have torn your eyes out of your head to stop the pain they were causing. I think that's the real story here-coherent typing sans eyeballs.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

Pam's picture

I am a brilliant touch typer.  No eyeballs required

CincyOSU's picture

I know you are being sarcastic here but I'm still not sure why you bring this up as it is a moot point...football IS being played so there will be no negative affect on businesses. BUT, if a true death penalty had been handed down...esp the 4 year penalty that was discussed, there MOST CERTAINLY would have been a negative impact on the central PA economy. Emmert even conceded as much when he announced the sanctions and was part of the reason they worked with PSU in coming up with alternative punishments.

NW Buckeye's picture

This could get really interesting.  The current sanctions were handed out instead of a "death penalty" because PSU agreed to no appeal.  Now that there will be a formal appeal filed this afternoon, the NCAA could very well open this whole thing up.  Here's hoping that they deny the appeal and a suit is filed as that would (as stated above) give them subpoena power over everyone at PSU. 
The thing is, they have the AD, past Pres, and past VP nailed cold because of the emails.  Mr. Paterno is implicated in those emails, but as we all know because of the cult and the Paternos this only implicates him and does not prove anything!!! (right).   So, they could be opening up a can of worms solely to try to clear Mr. Paterno's name. 
Here's to hoping the NCAA opens this up again through the civil suit process, and re-evaluates the sanctions.  They are just as likely to end up with more severe sanctions instead of more lenient ones. 
It just keeps getting more absurd every day. 

BrewstersMillions's picture

Keep supporting that team though guys! Cheer loud! Attend those games! Support Penn State! Go Team!
With each day, their culture and obsession with football (Ironic given my obsession with their stupidity) grows. They are going the other direction and are hunkering down deeper in their bunkers.
Please, please keep poking the NCAA. I would love nothing more than a Wyatt Earp "You called down the thunder well now you got it" moment from Emmert & Co. Won't happen but man would that stifle some idiots.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

NC_Buckeye's picture

What's lost on the cult is that they believe the NCAA holds the Infraction process to the same standards as the legal system.
IT DOESN'T.
There's nothing like "guilty beyond a reasonable doubt" or other legal concepts by which to levy a verdict. They keep citing that the Freeh Report merely implicates Paterno and Spanier but isn't sufficient evidence to indict them.
IT DOESN'T MATTER.
The Freeh Report was sufficient enough for the NCAA to render a verdict. In fact, Emmert said the Freeh investigation was more exhaustive than any investigation the NCAA has ever done.
NW raises a valid point above. The trustees are acting in their capacity as university representatives. This could nullify the current agreement as far as Emmert is concerned. PSU could end up with the death penalty afterall.

BrewstersMillions's picture

NC,
You've been a really good contributor to these discussions so I wanted to get your take on something-I keep hearing the word "flawed" thrown out there about the Freeh report but has anyone actually said what is wrong with it? Or is it just easier to say its flawed than accept the its implications?

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

NC_Buckeye's picture

I think the "flaw" is coming from the fact that evidence against Paterno is second-hand in nature and somewhat vague. There are emails indicating Paterno's influence but no direct evidence from Paterno. He was pretty good about conspiring in a face to face manner. So it's all hear-say.
But again, I say -- THE NCAA DOESN'T ADHER TO A LEGAL CRIMINAL FRAMEWORK WHEN ASSESSING INFRACTIONS. Hear-say is fine with them.
I'm no lawyer but as I understand it, the legal framework for civil cases is much laxer. It will be interesting to see how the Paterno's estate does in the civil trials.
It will also be interesting to see if Curley or Schultz turn on Paterno in the criminal trials. These guys are taking a lot of heat for actions that were probably 70% due to Paterno's influence. I'm basing that on other reported machinations by Paterno.

Crimson's picture

"Flawed" is a catch all that they are using, saying that Freeh is incompetent.  The only thing they really have, is that they did not interview a few people (Paterno - dead, Curley & Schultz - under a grand jury indictment, and some others).  I've seen others post that it is flawed without any specifics, but my reading of the Freeh report is pretty damning.
Mostly, I think yes to your second question, Brewster.

BrewstersMillions's picture

Good stuff as always dudes. Thanks.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

NC_Buckeye's picture

Re interviewing the key people. These people (Curley, Schultz, Spanier, & Paterno) are under indictment or were going to be indicted. If I'm their lawyers, I tell them they are not to talk to the Freeh investigators. I just wished Freeh's people had contacted them just so it was on record that the four refused to cooperate.

Crimson's picture

Paterno was going to, but he died.

Bucksfan's picture

"Gee, the lack of humility...that's being displayed here, uh... staggers me."

Bucksfan's picture

Moreover, are these *ssclowns going to be filing the same lawsuit against the Big Ten?  The conference is basing its sanctions on the Freeh report and what the NCAA did.

jestertcf's picture

Ryan J. McCombie, a retired Navy SEAL who joined the board in June, spearheaded the challenges on Monday, writing to fellow board members in a letter obtained by ESPN's "Outside the Lines" that he has hired Boston attorney Paul Kelly to file the appeal and that trustees should join him in his effort against the NCAA and in trying to determine whether Erickson had authority to act alone.
So to be clear, the trustee who joined in JUNE is the one who has a problem with the sanctions....
 

~Because we couldn't go for three~

Bucks43201's picture

I really think that PSU was lucky to get this 4-year suspension. I think it will get worse before it gets better. There will be more ugly revelations about PSU.

"You win with people." - Woody Hayes

Northbrook's picture

I'll say it again. Let this be the last year for PSU in the B1G.

WoodysGlasses's picture

Seriously, just kick these fuckers out of the league.

Poison nuts's picture

Please.

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

ccollins0325's picture

Don't just kick them out. Shut down the program permanantly. Short of that, removal from the Big 10 would be satisfactory. Let's see how well they do without the money from the BIG television contracts. It's the reason they joined in the first place.

rampageripster's picture

I don't get this... the NCAA can do whatever they want as long as it is in the bylaws.  You agree as a member institution to not only follow the bylaws but to implament any sanctions the NCAA gives you for breaking said bylaws.  You don't like it? TOUGH COOKIES MAGEE.  Think the NCAA is corrupt and unjust? THEN FUCKING LEAVE IT!  What PSU fails to realize is that it's athletic programs would be NOTHING without the NCAA.  Honestly, PSU needs the NCAA more than the NCAA needs PSU...
I am getting to the point where I think kicking PSU out of the B1G and D1 is the ONLY way to wake these fuckers up.

Cause I couldn't go for three

smith5568's picture

I hope the Department of Education gets fed up with this bullshit and really lays the hammer down. Taking away all federal aid for several years. That would shut them up. 
Also, I am curious to see how the trustees argue that Erickson did not have authority to accept the sanctions. It is a general principal of agency law that organizations can be bound by contracts made by their agents but not liable for their agents tortious conduct. In this case, Erickson was acting as PSU's agent and bound the University to this agreement. I may be missing something or a nuance to this particular situation, but in general that is how agency law works. 

Crimson's picture

One thing I read when this broke is, the first thing he did was find out if he had the power to accept the sanctions.  I don't know if the same legal counsel is still in place, but the old one did not have a clue how to handle the investigation.

NC_Buckeye's picture

Smith, are you a lawyer? If so, I have a question. I've seen it a couple of times now that if Paterno's family brought a libel case against the NCAA -- it would probably get dismissed. Can you explain that?

smith5568's picture

I am not a lawyer yet. Entering my 3L year. If I pass the bar next summer, then I will be a lawyer. 
To answer your question, the U.S. Supreme Court has issued a number of decisions that impose requirements of falsity and fault in cases involving 1st Amendment free speech and defamation (libel/slander) and public figures and matters of public concern. The most notable being New York Times v. Sullivan. In this case the Paterno's are definitely public figures because they acheived such pervasive fame and notoriety that they become a public figure AND the raping of young children is a matter of public concern, so there is a double-whammy. Since, the plaintiff (Paterno) is a public figure and it is a matter of public concern they must show (1) that the statement was false and (2) fault on the defendant's part.
(1) Falsity is simply proof that the statement is untrue. 
(2) Fault in this case would require a showing of malice because JoePa is/was a public figure. To show fault the plaintiff (Paterno) must establish knowledge that the statement was false or reckless disregard as to its truth or falsity. Spite, hatred, ill-will, or intent to injure the plaintiff are not enough to establish fault. 
It isn't enough for statements to hurt a public figures reputation. They must also be able to prove that the statements made were false and in this case there isn't anything to lead someone to believe that the statements being made are false. Plus, I highly doubt the Paterno's could prove that the NCAA knew their statements were false or disregarded there falsity. 
The reason behind the additional standards for public figures and matters of public concern is to allow for freedom of the press and protect free speech rights. These are obviously paramount to our democracy and the courts (believe it or not) are extremely concerned with protecting this right. Also, public figures can easily dispute claims against them by holding press conferences or issuing press releases, which the paterno's have done.
Sorry for the long response, but I hope this helps. I just started typing away and it ended like this...sometimes I hate what I have become since law school.  
 

ccollins0325's picture

Read recently that in the United States most states do not recognize slander of the dead. You have to be alive to have suffered defamation.
Per Wikipedia (not testifying to the accuracy of this, of course!):
However, there are ten states (Colorado, Idaho, Georgia, Kansas, Louisiana, Nevada, North Dakota, Oklahoma, Utah and Washington) that have criminal statutes regarding defamation of the dead.
Seems like as long as the person is dead, you can say whatever you want about him/her.

smith5568's picture

This is also a very true statement. I was thinking more along the lines of the Paterno's as a family trying to claim it because of their name and legacy. But you are very correct that there is no common law claim of defamation if the individual is deceased. 

NC_Buckeye's picture

Makes a lot of sense Smith.
I've also seen something along the lines that a family member can not bring charges of defamation on behalf of a deceased person.
Where are you going to law school?

smith5568's picture

I am at the University of Dayton doing the dual Law/MBA program. 

Paul's picture

I hate to say "I told you so", but......go back and check out my initial comment under the "can everybody please ease up on penn state? Thread, These people are bat shit delusional and crazy! They only care about football the PENN STATE WAY!

There are winners and there are losers, and then there are "THE OHIO STATE UNIVERSITY"

FOOTBALL BUCKEYES!

BrewstersMillions's picture

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

bucknut24's picture

So much for changing the culture.  Let'em burn

Et_Tu_OSU's picture

Wow.  I grew up in Pittsburgh loving Penn State.  I was very happy when they joined the Big Ten so I could see them on TV more after moving to Columbus.  Only went to OSU instead of PSU because it was no contest financially.  Loved watching them come to the 'Shoe because I knew it wouldn't hurt nearly as much if the Buckeyes lost.  That being said...
This whole situation has sickened me, from the moment it started.  In fact, there is almost nothing I would like to read about less than this.  When I see a related headline, I head the other direction.  I had to click on this one, however, because I couldn't believe it was actually true.  How f'ing stupid can they be?!?  They couldn't dodge the bullet, but managed to get away with a through-n-through...but instead of going to the hospital, they're yelling at the guy holding the gun?!?  What the hell?!?  They are not only proving their detractors right, they're showing it's probably worse than anyone thought (if that's even possible).
The kid in me weeps for what he thought was real...the adult hopes their continued defiance leads them into oblivion if they continue down this path...

"The revolution will be televised."

NC_Buckeye's picture

Et_Tu, I have some questions for you about PSU fandom and their student population. Since you're from Pittsburgh, you might be the best person to answer this.
What do you think is the proportion of Pitt to PSU fans in the greater Pittsburgh area? I've always thought that Pittsburgh is similar to Cincinnati for Ohio State fandom. IMO Cincy is 30% UC, 30% tOSU, and 40% don't care about cfb/only follow the Bengals.
Also, I realize you didn't go to PSU but every PSU alumnus I meet down here in NC is from New Jersey or NYC. Last week a commentor (RampageRipster) said most PSU students come from either Pittsburgh or Philadelphia. I wonder how many come across the state line from NJ and NYC? What's your opinion on that?

Et_Tu_OSU's picture

When I was a kid Pitt & PSU were still playing each other every year and it seemed to be about 50/50 (I didn't know anyone that would admit to not having a rooting interest).  By the time they stopped playing each other, I would say PSU had an edge.  I wouldn't hazard a guess as to what it may be now or where their students come from (they probably publish student make-up somewhere).  Sorry for the slow response and the limited answers.

"The revolution will be televised."

jfunk's picture

I think this quote covers the Penn State situation nicely...

"You're on thin ice, but do you get off the ice? Hell, no! You jump up and down like a lunatic having a - a conniption fit!"

Scotch: It may be too early to drink it, yes; but people it is never to early to think about it.

BrewstersMillions's picture

My biggest concern here is that the people who are now making these ridiculous statements are actual members of the power structure at Penn State. This isn't 'fringe' element fans on BSD or worse, this isn't Phil Knight and his creepy weirdness, hell this isn't even lunatic Franco Harris-This is a member of the board of trustees. This is a powerful message being sent from high a top the Penn State power structure. Its the sort of person who's message will influence masses of people and instead of calling for humility and contrition, its even more defiance. I still can't get over this man's choice of language either. Naturally, given his military background and openness to fight for the good that is Penn State Football (Vomit) people have gravitated to this guy as if he's some sort of righteous rogue fighting back against oppression.
I notice this thread is void of people who were saying 'be patient' or 'this culture will change!'. I don't know if that is accidental or intentional but boy these comments\actions sure lend a lot of credence to what a lot of people here have been saying about PSU all along. Again-Another day, another disgrace. At this point I'm not even mad anymore. I'm just upset there are so many people out there that think the things PSU fans and PSU decision makers do.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

CincyOSU's picture

I STILL say be patient. Do I agree with what the BOT is doing? Hell no. But I have said all along that this year is going to be bad...esp with this seasaon having the "us against the world" motto. I honestly feel that IF change begins it wont happen until after this season. If we are at this point next year and still see the same attitude from the PSU fanbase and brass, then I will jump on the "Brewster Bandwagon"(jk). You had to kind of expect this...this is almost mirroring the 5 stages of loss/grief. Acceptance is always the last to occur.

BrewstersMillions's picture

Cincy, you have an incredible amount of patience that I know I lack then. I don't know where you are getting your theory from since nothing and no one has come out to lend credence to your hope so I have to assume you are just that optimistic about people. I can't be. Not these people anyway. I know how easily swayed large groups of people can be and I know how much easier it is when people in power make decisions in tough times. The fact that someone way up the ladder is making this statement 1) reflects the organizational attitude about PSU and 2) will only further these people's insanity.
As for the bandwagon, there's always room dude-believe it or not, there isn't a single person from Pennsylvania on it. 

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

CincyOSU's picture

I guess my main point is this....who gives two watery craps about Penn State? Why do some of us continue to even pay them notice? They are beyond screwed for the next 5-10 years. Really, who cares if they haven't accepted it yet? The penalties aren't going away. Personally I would rather worry about OSU and what we need to do to improve and make this a successful season. If some PSU fans still don't get it...who cares? How does this affect you? They can bitch and moan and cry all they want, but it doesn't change the situation they are in. Eventually they will start to get it, but until that time I could care less about anything related to PSU. I just don't see the need in getting worked up over something that has nothing to do with us at all.

BrewstersMillions's picture

This isn't about football for me. This is about people who continue down a misguided path and are only getting louder and louder. They are awful human beings and I can't just tune out. I'll continue to be mad about them because apathy isn't in me. Simple as that. And its more than just the fans. Its everything that surrounds something as large as PSU so they just refuse to 'get it'.

Do I come off as arrogant? Shame on me, I was hoping it would more obvious.

NW Buckeye's picture

Cincy - They are part of the B1G.  This whole thing is an embarrassment to the B1G, and the latest maneuvering by the Paternos and select Trustees is an even bigger embarrassment to the B1G.  That is why we talk/write about it. 
Should they continue to push their agenda there is the possibility that they will get more severe sanctions and possibly the death penalty - a sanction that you did not feel they deserved.  And, if the sanctions are more severe, they will have a more negative impact on the B1G. 
None of us were happy with the sanctions handed down by the NCAA to tOSU.  But, we accepted them quickly and are moving on.  We wish that for the benefit of the victims, their school and the B1G that they would do just that.  The grieving process should progress, but the longer the leaders (Trustees) drag this out the more likely it is that we will just see vicious compliance from PSU and that adds further insult to the actual victims and also reflects poorly on the B1G. 
 

Pam's picture

This reminds me of OJ Simpson. After beating a double murder rap, you would think he would lay low for a very long time. But his ego and lack of humility wouldn't allow it and he finally ended up in jail. You got lucky PSU. Take the rap and lay low for a very long time

Doc's picture

I thought AACC fans were arrogant.  These State Penners are off the charts.  Drop the bomb on them and boot them from the B1G.  Good riddance to bad rubbage.

"Say my name."

hodge's picture

Man, how dumb are these clowns?  The NCAA has no requirement to due process.  Our American legal system does, but not an arbitrary body that governs collegiate athletics.  This is such a massive misnomer that due process extends to every facet of Americans' lives.  These trustees have know this, they're just doing it for PR's sake.  Then again, the incompetence of this BOT has been well-documented...

Bucksfan's picture

This is a good point.  The NCAA does not have to prove anything to any jury.  The NCAA makes its own judgements based on the evidence that it deems valid.  And furthermore, the school in question can choose to accept or fight the conclusions.  Well, in this case, the NCAA used Penn State's own investigation's findings, and Penn State already accepted the sanctions.  The Big Ten gives NCAA credibility in this case because it, too, levied sanctions along this line.  I don't think there's anything that lends more credibility to the NCAA, its jurisdiction in the matter, its call for a culture change, or its sanctions, than the fact that there are members of their board that are as absurd as members of their lunatic fringe.
I really wish they were not in the B1G.

Bucks43201's picture

At this point, it's almost like PSU is trying to get the death penalty. What more do they have to do? If they don't deserve it, nobody does.

"You win with people." - Woody Hayes

Northbrook's picture

PSU recruits and current players need to realize that the continued actions of the Paterno family and the Board of Trustees may bring tougher sanctions and possibly even the death penalty. They might also end up in the Big East.

cplunk's picture

Let's just make this easy. The NCAA should throw PSU out.
its a great academic school. It'll still be a great academic school without football. Let's end this debacle already. 

NC_Buckeye's picture

Does the University of Chicago even have athletics anymore? They are a very highly regarded school. Maybe PSU could join them as a former Big Ten member without college athletics.
Nevermind. I just wiki'd and the Maroons 19 varsity sports compete at NCAA Division III.

Northbrook's picture

Time to upgrade your facilities Toronto. You're on deck. Just kidding. Kinda.

Doc's picture

I think Homage should make a new T-shirt.  The shirt needs to be white and in blue letters have "You Were Penn State" written on the front.  I think every other school in the B1G would scoop these up quicker than snot.  They could be worn at both home and away(PSU) games when they play the Nits.
Just an idea....

"Say my name."