Four Quick Takeaways From The Freeh Report On Penn State & Sandusky

Louis Freeh and his firm delivered a fat package at 9am this morning - 267 pages of stuff all about the Jerry Sandusky sexual abuse scandal at Penn State.  Much of the material is not fresh to the report, but he lays it out nicely and makes some important points.  I see several different takeaways from the report, some of relevance to this case and others of relevance to all schools with major (and powerful) sports programs. 

1. This is a wake-up call for every university with a major sports program.  I imagine that every (competent) General Counsel at a school with Big Sports will be reading this closely.  Key issues at PSU include: a leadership that keeps the Board at bay around important issues; a school that fails to comply properly with the Clery Act regarding crime reporting;  and more generally a university that treats the athletic program as a freestanding, separately managed entity not responsive to university concerns, processes or oversights.  

This third matter - Big Sports as a separate entity from the U itself - is basically the same arrangement as you'd find at most schools that have had a Top 25 football or basketball program in the last couple of decades.  Such a structure only makes sense in a world where everyone agrees that  what's good for the athletic program is always good for the overall brand.  We've long known that Big Sports exists in tension with academics.  But this tension is allowed to continue because, supposedly, it's good for the university as a whole.  But the interests of the sports program - particularly around risk management - may NOT always be aligned with the interests of the larger University (even setting aside academics...which, personally, I don't think we ought to set aside.)  And simply from a skill set and values perspective, the individual people running the athletic program may not be the best stewards of the overall brand.

Seems to me that this ought to be good for business for my former colleague Gene Marsh.

2. The four relevant leaders at Penn State - President Graham Spanier, Senior Vice-President Gary Schultz, Athletic Director Tim Curley and Coach Joe Paterno - engaged in magical thinking.. .or put another way, self-delusion.  Yes, they wanted to protect the football program.  But something more was going on.  In 1998, Sandusky was accused of sexual misconduct with a kid on the Penn State campus.  Though the DA decided not to bring charges, officials learned more than enough details to put them on high alert.  Sandusky would have immediately merited more internal supervision.  

Then, in 2001, with the McQueary report, officials should have concluded that their worst fears were coming true.  Even viewed through rose-colored glasses,  this report should have set off alarms and fears that the institution might be facing a repeat of 1998. (And here, I'm setting aside an issue that should have, but clearly did not, trouble them: the plight of the victims.)  Even if officials thought that the new incident was less than a crime, it was enough to make obvious the need for serious action to protect the school's reputation.

Even if it they thought it wasn't a crime, and even if they didn't care one whit about the victims, any rational, risk-averse administrator would have insured that Sandusky never again brought a child to campus.   They told Sandusky not to bring children to campus.  Yet they never considered banishing Sandusky even though, Curley conceded, they knew they couldn't enforce the ban on children.  If your priority was protecting the brand, why wouldn't you just ban Sandusky?  

The answer, I think, is that in the face of all the evidenc to the contrary, they didn't actually think that Sandusky was engaging in any improper sexual behavior.  Remember, as recently as the Sandusky trial a few weeks ago, a defense witness explained that he showered with young boys all the time.  I'm guessing that Penn State administrators figured that was all that had occurred; Sandusky couldn't possibly be molesting boys, notwithstanding a bunch of very discomforting evidence.  And that is delusion.

3. The report is a roadmap for lawyers litigating the upcoming civil cases.  Freeh has set out all the available statements and documents, and juxtaposed them in ways that strongly suggest - without explicitly asserting - which witnesses might be shading the truth.  OK, lying.

4. Graham Spanier needs a lawyer.

Comments

[Anon]

How did Spanier not get indicted at the time of the Curley/Schultz indictments? It seems pretty clear his grand jury testimony is nonsense.

[Jeffrey Harrison]

Is it really possible that University counsel was not consulted at all at any point? Does it say anything about this in the report?

[Bob]

Re the paragraph beginning: "This is a wake-up call for every university with a major sports program."

Would be good to hear from Penn State law school's Sport Law Institute on these matters. A major opportunity for leadership on legal issues of relevance to sports programs across the country.

[xueqiong]

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