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chapter 16 From the Grand Jury to Beyond the NCAA Consent Decree “Power lodged as it must be in human hands, will ever be liable to abuse.” —James Madison (1829) There did not appear to be hope in Happy Valley and beyond after November 4, 2011, when the grand jury presentment was officially released. There were multiple charges against Jerry Sandusky. Two Penn State administrators, Gary Schultz and Tim Curley, were charged with perjury and covering up Sandusky’s acts. In addition, President Graham Spanier seemed to be in serious trouble with the law. What developed immediately were anger and panic among members of the Board of Trustees, who were kept nearly clueless by a president whom they had held in high esteem for more than a decade and a half. Penn State Counsel Cynthia Baldwin was little help during the crisis. Furthermore, the football coach, Joe Paterno, who achieved a record for longevity and who had more victories than any big-time football coach, was in deep trouble. The coach, who was used to having his own way, told the board not to worry about him because he would retire when the season was completed. “Trustees,” Paterno stated, “should not spend a single minute discussing my status.”1 Within hours, he was fired. The president, only a few hours before, was compelled to retire (or was fired), in part because he gave unconditional support for both indicted administrators. The president’s departure drew much less concern than the firing of Joe Paterno. What drew immediate attention was the summary dismissal of an honored coach with sixty years at the university—and in a telephone call. His firing led to a riot by students and others who considered Joe Paterno, if not godlike, certainly iconic. Stunned and panicking, the trustees, even before Paterno and Spanier were let go, felt compelled to quickly call for an independent study of the chaotic situation that led to the scandal. It was to be an investigation free of influence by the Board of Trustees or anyone else. A lawyer member of the trustees, Kenneth Frazier, who, along with other members of the board, raised no questions when President Spanier first informed the board of a grand jury investigation a half-year before, Smith_text.indd 173 12/7/15 11:11 AM 174 chapter 16 was chosen to lead in hiring an independent investigative team.2 Louis Freeh’s law firm was chosen in about two weeks in part because Freeh had great visibility as the former director of the Federal Bureau of Investigation (FBI). The National Collegiate Athletic Association (NCAA) jumped into the scandal even before the Freeh firm was appointed. The NCAA, founded in 1905, had been the principal governing body of college sport since shortly after World War II. At the time of the scandal, it was led by a former college president at Louisiana State and the University of Washington, Mark Emmert. The NCAA presidential leaders and Emmert were under public condemnation for not being able to lead college athletics effectively. Emmert must have been embarrassed, despite his arrogant manner, for doing little to control violations of the NCAA constitution and bylaws, emphasized by recent major university scandals. These included player remuneration at the University of Miami, players at Ohio State University selling merchandise, payments to athletes at the University of Southern California (USC) and the forfeiting of the Heisman Trophy by USC’s Reggie Bush, and attempts by Cam Newton’s father, a minister, to receive $100,000 or so to have his son attend Mississippi State University.3 Furthermore, numerous conference realignments to attract television dollars made it look like the commercial interests of college athletics were the only things that mattered to the universities. Commercialism may have been the least of Emmert’s and the NCAA’s concerns, but it added to the fuel that fed the fire threatening the NCAA leadership and all of what was questionable about college athletics and increasingly about higher education in general.4 Two retired Penn State professors in the early twenty-first century were discussing the increase of commercialism in higher education and at Penn State in the recent past, and not just in the athletic department. One ventured that “commercial ventures aren’t necessarily evil, but secrecy is, especially in an academic environment.” He said, “perhaps more openness is the answer.” He suggested creating “a panel of students, faculty, and alumni that would assess all [commercial] deals before they’re...


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