Posted: Thursday July 12, 2012 12:28PM ; Updated: Thursday July 12, 2012 6:06PM
Michael McCann
Michael McCann>SPORTS LAW

Report finds Paterno, PSU leaders concealed Sandusky abuse

Story Highlights

Penn State knew of 1998 incident, but chose not to report Sandusky to authorities

Paterno receives particular scorn in report for discouraging reporting of Sandusky

Penn State could face lawsuits, fines, the loss of financial aid and NCAA sanctions

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McCann: Most damaging element of Freeh Report
Source: SI
Michael McCann breaks down the Freeh Report findings and explains what it all means for Penn State.

After eight months, an internal investigation into how Penn State employees responded to Jerry Sandusky's child abuse has produced a 267-page report by former FBI director Louis Freeh. Freeh and his law firm, Freeh, Sporkin & Sullivan, were hired by the university to conduct the investigation and were purportedly given independence and unrestricted access. Here is a breakdown of the report and explanation of its impact.

Key findings from the Freeh Report

The report makes damning and sweeping accusations against Paterno, as well as of Penn State athletic director Tim Curley, former vice president Gary Schultz and former president Graham Spanier, the latter of whom remains a tenured faculty member. The four are portrayed as manipulating administrative channels to protect Sandusky, the football program and their own reputations. According to the report, the four knew about Sandusky's behavior as far back as 1998, when Sandusky was investigated by several state and university agencies -- including the police -- for inappropriate conduct with young boys. Sandusky would retire a year later. The group's response, incredibly, was to allow Sandusky to remain on campus as a professor emeritus and to provide him with continued access to the football team's facilities.

Paterno received particular scorn in the report, which alleges that he actively discouraged Penn State officials from reporting Sandusky to law enforcement. Freeh's report also implies that Paterno perjured himself while testifying before the Sandusky grand jury. In his testimony, Paterno claimed to only know about the 2001 shower incident purportedly witnessed by graduate assistant Mike McQueary. Freeh's report says that Paterno also knew about the 1998 investigation.

Of the four, the findings about Spanier, who opined in an e-mail that it would not have been "humane" to report Sandusky to law enforcement, were the most damning. Like Curley and Schultz, Spanier could be charged with perjury and failing to report. The university could also take steps to take away his tenure, though that could be difficult.

The Freeh Report also acknowledges that Penn State could face fines from the Department of Education for failing to implement the Clery Act, a federal law that mandates the thorough investigation and reporting of on-campus crimes. Penn State could potentially face a much more devastating sanction under the act -- a suspension of student financial aid -- though such a sanction would be extraordinary and seems unlikely given Penn State's admission of fault.

Reasons to question the Freeh Report

While the Freeh Report presents a compelling narrative, keep in mind that there are limitations and potential biases in any internal report. Expect those implicated by the report, as well as Paterno's family, to emphasize these limitations and potential biases.

Like other internal investigations, Freeh's was conducted under an imperfect set of rules for obtaining evidence and uncovering the truth. For one, those interviewed by Freeh were not under oath. Even if they knowingly lied, they could not have committed perjury or the crime of lying to government officials. While witnesses likely had other motivations to tell the truth, the absence of a legal threat is significant. This is especially true if witnesses had reasons to lie, such as to keep a job or preserve a public reputation.

Internal investigators may fail to obtain key facts or context since -- unlike government investigators -- internal investigators lack the power of subpoena. Similarly, internal investigators may make curious decisions that raise questions about the completeness and accuracy of their findings. This occurred in Freeh's investigation. At the request of the Pennsylvania Attorney General's office, Freeh's group declined to interview former graduate assistant McQueary, who testified in Sandusky's trial that he saw Sandusky sexually assault a boy in a Penn State shower and who requested an interview with Freeh. As an employee of Penn State who witnessed Sandusky committing a crime in a Penn State facility and who notified his Penn State superiors instead of the police about that crime, McQueary seemingly would have been a useful person to interview.

In fairness, Freeh's credentials -- he was a former FBI director, federal judge and assistant U.S. Attorney who has conducted other internal investigations (for example, bribery in FIFA) -- are seemingly ideal for the task. The university also emphasized that Freeh had complete autonomy in his investigation, which included more than 430 interviews. In fact, the university refers to Freeh, who hasn't been a judge for almost 20 years, as "Judge Freeh," at least in part to stress that he is impartial.

Still, any internal investigation should be viewed with caution. The Freeh Report on Penn State is not necessarily the whole story.

Paterno's legacy and legal options for his family

Put simply, the Freeh Report further tarnishes Paterno's legacy. Unless the report and its accusations are somehow undermined, Paterno will be remembered most for his lack of action in relation to Sandusky's crimes.

Paterno's family has proactively taken steps to mitigate damage to Paterno's legacy, though none of those steps have gained much traction. For instance, family members recently complained that they were denied access to Freeh's findings before the release of the report. While it is understandable why Paterno's family would want to preview the findings, it is more understandable why Penn State and Freeh denied the request. Neither Penn State nor Freeh was under any obligation to release findings of a private report. If they had granted the family's request, they likely would have had to grant the same request to others implicated by the report. This would have led to selective disclosures and opportunities for implicated persons to try to undermine the report before its release.

Paterno's family has also complained that Paterno had no opportunity to tell his side of the story to Freeh. While it is true that Freeh did not interview Paterno before he died, Paterno had plenty of opportunities to explain what happened. He testified before the grand jury investigating Sandusky. Although he could only answer specific questions asked of him while under oath, those questions generally covered Paterno's knowledge of Sandusky. A critic might also say that Paterno could have told his story many times, over the course of many years, to the police.

Paterno's family also verified the authenticity of a letter dictated by Paterno last December, a month before he died of lung cancer. The letter encourages former Penn State football players to be proud of their program and boasts "during the last 45 years NO ONE has won more games while graduating more players." Paterno's letter, which makes no mention of Sandusky, claims that the Pennsylvania Attorney General's Office did not want Paterno "discussing the specifics of [his] testimony regarding the pending cases." If the letter was released to promote Paterno's legacy on the eve of the Freeh Report's publication, it failed. It is not clear what Paterno gained from highlighting his football team's success when he could not say the one statement that would have truly mattered: I'm sorry.

Moving forward, it is possible that Paterno's family could file a defamation lawsuit against Penn State, Freeh and Freeh's firm, though courts normally bar defamation suits filed on behalf of deceased persons. If Penn State litigates potential lawsuits brought by victims of Sandusky, findings in Freeh's report could be contradicted by other evidence. If so, supporters of Paterno could question the report's accuracy and believability.

Legal and NCAA implications for Penn State

Victims of Sandusky are poised to sue Penn State and its officials for negligent conduct and vicarious liability. Their argument would be that the school failed to protect them from Sandusky, an employee of Penn State. Although the Freeh Report does not expressly state that the school committed civil harms against Sandusky's victims, it offers victims' lawyers a great deal of material to make such an argument.

Penn State will likely try to settle the cases before they go to trial. Litigation would be costly and a public relations nightmare, and with appeals, it could drag on for years. The discovery process of litigation could also expose new information that Penn State does not want revealed. Along those lines, Penn State has to consider the impact that fighting Sandusky's victims in court could have on its admissions and alumni fundraising. A quick settlement, if Sandusky's victims are agreeable to it, would go a long way in helping Penn State recover from the scandal.

Penn State might also take a similar position in dealing with the NCAA, which is investigating whether Penn State lacked institutional control. There has been much debate as to whether the NCAA should punish Penn State, but it is clearly authorized to do so and could even impose the "death penalty," whereby the Penn State football team would be shut down for at least one year. Articles 2.4 and 10.1 of the NCAA constitution command ethical conduct on behalf of coaches and others associated with athletic programs, and 2.4 expansively states, "These values should be manifest not only in athletics participation, but also in the broad spectrum of activities affecting the athletics program."

One might argue that covering up child rape perpetuated by a football coach in the football team's showers is not sufficiently connected to the playing of football, but consider another perspective: If the rape had become public knowledge, the football program would have been damaged and the team worse off.

If the NCAA hits Penn State with sanctions, it is unlikely to impose the death penalty, which it has only used five times in the association's 102-year existence and is normally reserved for institutions that commit repeat infractions of NCAA rules. Still, sanctions, including loss of scholarships and postseason bans, seem possible.

Instead of waiting for the NCAA, Penn State might also self-impose sanctions. The NCAA typically doles out lighter penalties on schools that admit wrongdoing and take action against themselves.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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