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Ncaa Penn State Report 1

Ncaa Penn State Report 1

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12/18/2015

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On November 4, 2011, the Commonwealth of Pennsylvania criminally charged

Sandusky, a former assistant football coach and professor emeritus at the University, with

multiple crimes involving sexual abuse of minors. He was found guilty of 45 criminal counts on

June 22, 2012 and is serving a sentence of 30 to 60 years in prison. Criminal charges also were

filed against the University’s Athletic Director Timothy M. Curley and its Senior Vice President

Finance and Business Gary C. Schultz arising from their alleged failure to report allegations of

child abuse by Sandusky. On November 1, 2012, Graham Spanier, the former president of the

University, was indicted for alleged perjury and obstruction of justice in the Sandusky criminal

investigation and for allegedly endangering the welfare of children.

Soon after the original criminal charges were unsealed in 2011, a task force of the

Penn State Board of Trustees engaged former federal judge Louis J. Freeh and his law firm Freeh

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Sporkin & Sullivan LLP to conduct an investigation into the University’s role in the Sandusky

allegations. The Freeh Report sets forth the findings and recommendations of that investigation.

The publication of the Freeh Report and its findings led to discussions between the

NCAA and the University about whether there had been violations of NCAA rules as a result of

the conduct of University officials alleged in the report. Effective as of July 23, 2012, the

University entered into a binding Consent Decree with the NCAA and the Big Ten Conference.

I played no role in the discussions concerning the Consent Decree; I was not contacted by the

NCAA until after the Consent Decree was finalized.

In the Consent Decree, the NCAA concluded, based on the findings in the Freeh Report

and the findings of the jury in Sandusky’s criminal trial, that “Penn State breached the standards

expected by and articulated in the NCAA Constitution and By-laws.” These included a “failure

to value and uphold institutional integrity demonstrated by inadequate and in some instances

non-existent controls and oversight surrounding the athletics program . . . ,” a “failure to

maintain minimal standards of appropriate and responsible conduct[,]” and a “lack of adherence

to fundamental notions of individual integrity” by individuals involved in the University’s

intercollegiate athletics programs.4 Based on these conclusions, the Consent Decree set forth

sanctions that the NCAA stated were intended to penalize the University for its violations and

4 Consent Decree, § II. NCAA member institutions commit themselves to advance a set
of principles supporting the NCAA’s purpose to “initiate, stimulate and improve intercollegiate
athletics programs for student-athletes and to promote and develop educational leadership,
physical fitness, athletics excellence and athletics participation as a recreational pursuit.” NCAA
Const., § 2.01. These principles include, among others, “to uphold the principle of institutional
control of, and responsibility for, all intercollegiate sports in conformity with the constitution and
bylaws of this Association.” NCAA Const., § 1.2(b).

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“to change the culture that allowed this activity to occur and realign it in a sustainable fashion

with the expected norms and values of intercollegiate athletics.”5

In the punitive component of the Consent Decree, the NCAA imposed: a $60 million

fine to be paid over five years into an endowment for programs preventing child sexual abuse or

assisting the victims of such abuse; a four-year ban on the Penn State football team’s

participation in postseason play; and a four-year reduction in football grants-in-aid. The NCAA

also vacated all wins of the Penn State football program from 1998 to 2011. In addition, the

NCAA imposed a five-year probation period on the University.6

In the corrective component of the Consent Decree, the NCAA required Penn State to

adopt all of the recommendations for reform delineated in chapter 10 of the Freeh Report and to

take all reasonable steps to implement those recommendations, “in spirit and substance,” by

December 31, 2013.7 The NCAA also required Penn State to enter into an athletics integrity

agreement with both the NCAA and the Big Ten Conference that would require Penn State to

institute an “Integrity Program” including, among other things: the appointment of an

independent integrity officer for the Athletics Department; the creation of an athletics integrity

council responsible for oversight of the ethical, legal, and compliance obligations of the Athletics

Department; the creation of a mechanism to report or request advice with respect to compliance

issues in the Athletics Department; the development of an athletics code of conduct; the

5 Consent Decree, § III.

6 In the Consent Decree, the NCAA reserved the right to pursue further sanctions against
individuals after the conclusion of pending criminal proceedings. The NCAA permitted football
student-athletes to transfer to other institutions with no loss in NCAA eligibility, and also
provided that football student-athletes would not lose existing grants-in-aid at Penn State
provided that they continued to meet the academic eligibility requirements. Consent Decree, §
III.A.

7 Consent Decree, § III.B.

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establishment of training “that addresses issues of ethics, integrity, civility, standards of conduct

and reporting of violations”; and the periodic certification that each intercollegiate athletics team

and the whole Athletics Department has continued to satisfy applicable “ethical, compliance,

legal and University obligations.”8

The corrective component of the Consent Decree also required the University to appoint

for a five-year period an independent athletics integrity monitor who would be charged with

evaluating and preparing quarterly reports on Penn State’s progress in carrying out these

obligations. The monitor was to be selected by the NCAA in consultation with Penn State and

the Big Ten Conference. Soon after the Consent Decree was signed, I was contacted by the

NCAA staff about whether I would be willing to serve as the monitor contemplated under the

Consent Decree. Thereafter, my colleagues and I met with representatives of both the NCAA

and the University about that potential assignment, began background work, and were kept

apprised of discussions among those parties and the Big Ten Conference concerning the

provisions of the athletics integrity agreement that would set forth the parameters of the

monitor’s work.

The NCAA and the University entered into the final AIA on August 28, 2012. The Big

Ten Conference executed that agreement the next day. The Monitor is not a party to the AIA.9

The AIA confirms Penn State’s commitment to promote “compliance with the NCAA and

Big Ten rules and regulations as well as with the NCAA’s and Big Ten’s standards of integrity

for its member institutions.”10

As mandated in the Consent Decree, the AIA reiterates Penn

8 Consent Decree, § III.B.

9 In September 2012, the University and DLA Piper LLP (US) entered into a separate
agreement governing the terms of my appointment as Monitor.

10 AIA, § I.

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State’s obligation to implement all recommendations contained in chapter 10, section 5.0 of the

Freeh Report by the end of 2013; requires the University to review, assess, and “implement in an

appropriate way” the other recommendations in chapter 10 of the Freeh Report; sets forth a

number of “integrity obligations” that the University must undertake; and more specifically

describes the Monitor’s responsibilities and authority.11

The AIA reiterates that the Monitor performs an independent role. The Monitor is not an

agent of Penn State, the NCAA, or the Big Ten Conference. The NCAA may replace the

Monitor at will, after first consulting with Penn State and the Big Ten Conference, but Penn State

may not remove or replace the Monitor.12

Under both the Consent Decree and the AIA, the

Monitor is contemplated to serve for a term of five years. The AIA permits this term to be either

extended or shortened in the NCAA’s discretion, but in no event will the term be less than two

years.13

As Monitor, my responsibility is to evaluate Penn State’s efforts to satisfy its obligations

under the Consent Decree and the AIA, to issue quarterly reports about those efforts to Penn

State, the NCAA, and the Big Ten Conference, and, if appropriate, to recommend additional

reforms “to enhance compliance with NCAA rules and regulations.”14

More particularly, the

AIA calls upon the Monitor:

. . . to review and monitor the University’s compliance with the AIA and
the systems, processes and procedures to comply with the NCAA
Constitution and Bylaws and Big Ten Handbook, including, but not
limited to, the principles regarding institutional control, responsibility,
ethical conduct, and integrity reflected in the NCAA Constitution and
Bylaws and Big Ten Handbook. The Monitor shall also review the

11 The AIA applies only to Penn State’s University Park campus.

12 AIA, § IV.A.

13 AIA, § IV.A.

14 Consent Decree, § III.B.

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activities of the Athletic Department and all Covered Persons to ensure
that their conduct and relationships with the athletics program are
appropriate under the AIA, the NCAA Constitution and Bylaws and the
Big Ten Handbook.15

The Monitor will prepare a written quarterly report
to the University’s Board of Trustees, the Big Ten, and the NCAA
regarding the University’s execution and maintenance of the provisions of
the AIA. The Monitor will make recommendations to the University to
take any steps he or she reasonably believes are necessary to comply with
the terms of the Consent Decree, the AIA, and the Freeh
recommendations, and to enhance future compliance with [sic] NCAA
Constitution and Bylaws, rules and regulations and Big Ten Handbook
and rules and regulations.16

The AIA sets deadlines for Penn State to satisfy many of its obligations. Other

undertakings, by their nature, will never be complete but will require ongoing commitment and

vigilance. Within 120 days of the AIA’s effective date, Penn State shall: appoint an athletics

integrity officer; establish an athletics integrity council (which will include the athletics integrity

officer, faculty members, and senior administrators, among other individuals); create and

distribute a code of conduct for athletics and written policies and procedures governing an

athletics integrity program; and institute a disclosure program that includes a hotline permitting

anonymous reports or requests for guidance concerning Penn State’s compliance with the AIA,

Penn State policies, the NCAA Constitution and By-laws, the Big Ten Handbook, and “the

principles regarding institutional control, responsibility, ethical conduct and integrity” reflected

15 “Covered Persons,” as defined in the AIA, § II.B.2, means:

[A]ll student-athletes who participate on any University NCAA-
sanctioned intercollegiate athletics team; all coaches and all managers of any of
the University’s NCAA-sanctioned intercollegiate athletics teams; all University
staff and other University employees who are directly involved with any of the
University’s NCAA-sanctioned intercollegiate athletics teams; the University’s
Board of Trustees individually and collectively . . . ; the President of the
University; and all members of the Athletics Director’s Executive Committee.

16 AIA, § IV.B.

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in those documents.17

The deadline to complete these 120-day commitments is December 26,

2012. Several of these reforms have been implemented already, and Penn State appears to be on

track to achieve the others by that deadline.

Even after the deadline to institute the AIA’s integrity obligations, Penn State will be

required to assess and take steps to reinforce an environment centered on principles of

institutional control, responsibility, ethical conduct, and integrity. By no later than June 30th of

each year, a “Team Monitor” for each intercollegiate athletics team must provide a report to the

athletic director and athletics integrity council concerning any issue that arose in the past year

and the remedial actions that were taken in response. The Team Monitor also must certify that

the team is in compliance with “the NCAA Constitution and Bylaws and the Big Ten Handbook,

and the principles regarding institutional control, responsibility, ethical conduct, and integrity”

reflected in those documents.18 Similarly, every “Covered Person” must certify annually by no

later than June 30th that he or she has completed educational programs concerning “the NCAA

Constitution and Bylaws and the Big Ten Handbook; the principles regarding institutional

control, responsibility, ethical conduct, and integrity reflected in the Constitution and Bylaws;

and the Athletics Department’s own Policies and Procedures.”19

Beginning with this first quarterly report, and throughout the monitorship, the Monitor

will evaluate and report on Penn State’s efforts to implement the AIA and the Freeh Report’s

17 See AIA, § III.

18 AIA, § III.B.3. A “Team Monitor” is “a named coach, manager, or appropriate
administrator for each University NCAA-sanctioned intercollegiate athletics team” who is
“assigned to monitor and oversee activities within his or her team relating to compliance with the
AIA and other relevant standards and obligations.” AIA, § III.B.3.

19 AIA, § III.D.1.

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recommendations and, more generally, on the reforms implemented by the University in the

wake of the Sandusky scandal.

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