In response to Judge Leete’s ruling in early January denying the NCAA’s preliminary objections to the claims filed on behalf of ourselves, certain members of the Penn State faculty, former football coaches and players, and the Paterno family,  we have filed an amended complaint with the court today.

The amended complaint differs from the original complaint in two primary respects.

First, in the January ruling, the court ordered the breach of contract claims dismissed without prejudice to amend, accepting the NCAA’s argument that Penn State has an interest in the claims and, therefore, that the claims cannot be litigated without the university’s participation in the litigation. Accordingly, the amended complaint adds Penn State as a “nominal defendant” on the contract claim only.  To be clear, the plaintiffs do not seek any monetary damages or other relief from Penn State, nor do we ask that the court order Penn State to take any action.  We ask only for a declaration that the plaintiffs have rights under the NCAA rules that were violated, and that the Consent Decree imposed by the NCAA be declared null and void.  Our claim is now, and always has been, against the NCAA.

Second, the amended complaint also responds to the Court’s request for more detailed allegations regarding the lost job opportunities suffered by Coach Jay Paterno and Coach Bill Kenney as a result of the Consent Decree imposed by the NCAA and the statements made by the NCAA in relation to the decree. These coaches are well respected in their field and would have had numerous job opportunities had not the NCAA falsely accused them of wrongdoing. The amended complaint describes the interest that other universities, NFL teams and sports networks expressed in the two coaches prior to the imposition of the consent decree.

We were very encouraged by the Court’s ruling in January. This lawsuit is extremely important to everyone who wants to know the truth about the unlawful mishandling of the Sandusky matter by the NCAA.  In short order we expect to gain access to the documents and records in this case and begin deposing the key parties.  We welcome the opportunity to explore the record in a full, fair and transparent manner.

SIMMONS: … We couldn’t have a sports czar? Why not try it?

GLADWELL: It has to happen! Let me give you another argument for the czar, which is that he could finally put the NCAA in its place. I’m actually still angry about the way the NCAA treated Penn State after the Jerry Sandusky scandal. (And by the way, please call it the Jerry Sandusky scandal, not the Joe Paterno scandal. The person who molested young boys was Jerry Sandusky.) Now, I’ve written, in The New Yorker, about how we falsely assume that catching child molesters is really straightforward, and that anyone who has a child molester in their midst must be guilty of some kind of cover-up.

That’s nonsense. The skilled ones, and Jerry Sandusky was very skilled, are consummate con men. So I tend to be a good deal more forgiving of Paterno than most. There’s a reason why clinical psychologists receive extensive training, and that’s because spotting predatory behavior requires extensive training. (If you doubt this, just spend an afternoon in the library reading the psychological literature on child molesters. It will chill you to the bone. Many go for years without being caught, because child molesters are really good at concealing their crimes.) But let’s leave that question aside for a moment and just consider the technical question here.

A former employee of Penn State University is suspected of molesting children. He is arrested and charged by the authorities. The university has a set of internal procedures designed to deal with those kinds of criminal activities, and to apportion responsibility for those school officials who acted negligently. The legal system in the state of Pennsylvania also has a set of laws and procedures, in both the civil and criminal arenas, to deal with crimes of this nature. Both acted. That’s the way the system is supposed to work. So what does the NCAA do? It jumps in and levies a series of harsh sanctions against the Penn State football program. Can someone tell me where the NCAA found the authority to do that? The NCAA, in its simplest form, is a cartel designed to exploit amateur arbitrage: That is, to profit on the spread between the cost of minimal-wage athletic labor and the value of television sports contracts. Or something like that. Reasonable minds can differ. What they are not is a body with any standing to weigh in on criminal matters concerning university employees that have already been dealt with by the appropriate authorities — merely because the employee in question happens to have once been connected to a sports program. This is crazy! If a bank discovers that one of its tellers is molesting children, the FDIC doesn’t suspend the bank’s charter and punish every other employee and customer of the bank! Now, I’m not the only one to think this. I’ve spoken to lots of legal experts who said exactly the same thing. So why does the NCAA get away with this kind of aggressive over-reaching? Because for some reason, when it comes to many of the bigger questions raised by sports, we all shut down our brains. Bring on the czar! By the way, is anyone still reading at this point?

Excerpted from: Grantland

Gladwell vs. Simmons V

The evolution of celebrity and the PED debate highlight another illuminating email exchange between Malcolm Gladwell and Bill Simmons

By Bill Simmons and Malcolm Gladwell on December 13, 2013

NOVEMBER 20, 2013 —- Penn Staters for Responsible Stewardship (PS4RS), the grassroots watchdog group that has been critical of the Penn State Board Trustees’ handling of the Jerry Sandusky scandal, applauds a first step towards board reform, in the form of legislation proposed this morning by Senators John Yudichak (D) and Jake Corman (R).

“Considering this is the first major attempt to change the charter in more than 60 years, this is a step in the right direction,” said PS4RS spokesperson Maribeth Roman Schmidt. “We applaud the senators and we also applaud the many alumni who have donated their time to evaluate the board composition of comparable universities and offer recommendations for Penn State.”

“In conjunction with the PS4RS mission of replacing the nine alumni-elected trustees (three each year), we support board reform,” Schmidt continued. “This is a good and necessary first step, and we look forward to working with state legislators to further strengthen these reforms with the goal of bringing much-needed transparency to Penn State governance.”

Penn Staters for Responsible Stewardship, with more than 20,000 members, was formed in November 2011 to effect positive change within the Penn State University Board of Trustees. Since the organization’s inception, 13 of 32 Penn State trustees have either been replaced through alumni elections or have resigned. It is the non-negotiable mission of PS4RS to remove or replace all of the trustees who were at the helm in November 2011.

“They must be held accountable for their blatant ignorance of the Sandusky grand jury proceedings; their knee-jerk scapegoating of a valued employee upon its release; their inexcusable commissioning of the biased Freeh Report; their lack of defense of the Penn State culture; their acceptance of the NCAA sanctions; and their premature settling with Sandusky victims before the accused Penn State administrators have had an opportunity to explain their actions in court,” Schmidt said. “The overall feeling is that the trustees do not represent the best interests of Penn State; that they are far more concerned with their personal self interests. We’re thankful today that the Pennsylvania legislature is stepping in to change how they operate.”

Penn Staters for Responsible Stewardship will endorse three candidates for the upcoming 2014 Board of Trustees election. For further information on PS4RS, please visit http://www.PS4RS.org, email ps4rsinfo@ps4rs.org, or go to http://www.facebook.com/PS4RS. Follow PS4RS on Twitter at @PS4RS.

Dear Dr. Myers:

I find it interesting that you begin what appears to be the start of a campaign for re-election with an all-out assault on PS4RS. Before I continue, let me say that I do not speak for PS4RS and am not one of the “mystery leaders” whom you assail. “Who are these people?” is among the most condescending and offensive comments I have yet seen in this sorry evolution that began with the Sandusky charges.

I have been a Facebook member of PS4RS since a single upset alumna started the page in December of 2011 and have been proud to see its membership swell. I can tell you that “We are…Penn State” in all its dimensions: we range in age, profession, economic level. Many of us are alumni or Penn State parents. Some, like me, claim multiple alumni in our families: myself, my daughter, my son, their father, their grandfather—six degrees and three generations among us. Some of us are rabid football fans and others are not. We are scientists and technologists, teachers, nurses, bankers, doctors, lawyers, homemakers. We are entrepreneurs and factory workers. We are artists and writers and musicians. We are your next-door neighbors, not just in Pennsylvania but also probably in all 50 states. What we share is a deep love for Penn State, horror at the mess the 2011 Board has made, and a commitment to finding the truth and setting things right. We are buoyed on by people with the courage to stand up and buck the odds without fear of reprisal: Franco and Dana Harris, Anthony Lubrano, Barbara Doran, Ryan McCombie, Bill Oldsey, Adam Taliaferro, Ted Brown, the Lettermen who have spoken out, those who are party to the NCAA lawsuit, and, of course, the Paterno family. Further, I can assure you that there is nothing secret about the PS4RS leadership: Maribeth Roman Schmidt, Christian Marrone, Elizabeth Morgan, Michelle Murosky-Davis, Spencer Niles, and Dan Wallace. Dig a little deeper on the Web page or the Facebook page and you will find it. You will also find it in the archives of PS4RS news, which I’m sure Mr. Latorre monitors and maintains for you.

We have 61 years of evidence, including countless individuals whom he coached and inspired and cared about, that Joe Paterno never did anything worthy of the treatment he received. And we are appalled that not a single Board member spoke up. Instead, you who sat on the Board in 2011 behaved like sheep and have continued to do so, flip-flopping publicly on one circumstance or issue after another. You fired Joe; you didn’t fire Joe. You accepted the Freeh report; you didn’t accept the Freeh report. Cynthia Baldwin represented Curley and Schultz; she didn’t represent them (a legal horror show if I ever saw one). You spent millions on consultants to repair the damage and in the end have only made it worse. (This is a field I know something about, and I have never seen worse crisis management in my career.) You may have personally spoken out on the NCAA sanctions, but the Board NEVER defended the university. You continue to throw away money on poorly written surveys (I know something about market research, too), and you want to spend millions more to “rebrand” a university that doesn’t need rebranding—Joe did more to brand us as an academically excellent institution than most of you could ever hope to.

PS4RS as an organization has never made any of the accusations you cite. With all due respect, perhaps you are feeling a bit defensive and uncomfortable about your inaction during the last two years. Again, while I do not speak for PS4RS, I completely support the goal of unseating the 2011 board. I also support more rigorous term limitation without grandfathering, more board members elected by alumni rather than through political appointment, an end to voting memberships for the sitting Governor and President of the University, and open records that make the University more accountable to the taxpayers of the Commonwealth. Others in PS4RS and the other Penn State Facebook groups I belong to (at least four others) may share my opinions or feel differently. While I do not feel compelled to defend any of them for what in my estimation is their good work or their positions, I am proud of my membership in each and especially proud of the good people that I and others like me have elected to the Board to provide a sorely needed new generation of leadership.

Like many of my fellow alumni who are in pain over this situation, I have served on the boards of a number of nonprofit organizations. I have also worked with nonprofit boards in a professional capacity and with several institutions of higher learning as well. A board that governs the way it should doesn’t roll over and play dead, Dr. Myers. Nor does it hide. Nor does it obfuscate or make weak excuses. A board that governs the way it should is open and accountable; it listens and embraces—not stifles—dissent or discourse. The 2011 Board members, in short, continue to flunk all of the tests. You and your colleagues have made our amazing and beloved university a laughing stock, Dr. Myers.

Let me be crystal clear and point out again that I speak for no group or constituency; thse opinions are mine alone. Your expression of entitlement outrages me. Why on earth should anyone, even the best of Board members, be able to serve 11 terms? This sense of entitlement is part of what is wrong not just with Penn State, but also with our entire nation. You are a generous donor—I get that—but so are many others. You had your chance, and you blew it. Whether I vote for the people PS4RS endorses or not (note that some of the new alumni board members were NOT endorsed by PS4RS—thus your claim of hijacking is absurd), I will never vote to re-elect you. Write all the letters you want; spend all the money you want to get re-elected—I can’t imagine that anyone but your cronies would.

Sincerely,

Angela G. Bell, (’69, English)
Mechanicsburg PA

Guest contributor Steven Fink is president and CEO of Lexicon Communications Corp., a crisis management and crisis communications consulting firm, and a Penn State alum. His most recent book, Crisis Communications: The Definitive Guide to Managing the Message, was published last spring by McGraw-Hill. His author’s website is www.StevenFink.com.

His remarks at Penn State, “What to Do (and Not) When Things Go Wrong,” are online at http://www.ustream.tv/recorded/39879842

I have been doing crisis management work all over the world for about 30 years, and have been involved in every conceivable type of crisis you can imagine. I have never seen a crisis communications fiasco as bad as the Penn State crisis. As a Penn State alum, it was all the more painful to watch. Nevertheless, my observations are, I maintain, objective from a professional crisis management point of view.

That, in a nutshell, was the message I delivered during an address at Penn State on October 15, at the invitation of Doug Anderson, dean of the College of Communications. The HUB-Robeson Auditorium was filled with students and faculty who had come to hear, among other things, a professional assessment of the Penn State crisis, from a crisis management and crisis communications perspective, which are my areas of expertise. I manage crises for companies, organizations—and even major universities—for a living.

Many have criticized the gross mishandling of the Penn State crisis by the Board of Trustees, but my talk was designed to shed much needed insight into why the Board erred so badly—what drove them to make a series of such calamitous decisions. To me, it was no mystery, for I have seen first-hand how company boards who are under attack often make hyper-vigilant (read: knee-jerk) decisions in the face of intense crisis-induced stress they are ill-prepared to handle, often in search of that elusive concept called “closure.”

Some years ago, I wrote the first book ever written on the subject, Crisis Management: Planning for the Inevitable, which remains to this day the most widely read book ever published on the topic. As part of the research for that seminal work, I surveyed the CEOs of Fortune 500 companies and gained real insight into how companies and large organizations respond in crisis. Last spring, my latest book in the field was published: Crisis Communications: The Definitive Guide to Managing the Message. As I was writing that book, the Penn State crisis erupted, and I had ample opportunity to fully analyze the many blunders made by the Penn State Board of Trustees. That full analysis is contained in a chapter called, “Say It Ain’t So, Joe! – The Penn State Crisis,” which details, step-by-step, the mistakes that were made, why they were made, and what should have been done at each critical turning point.

I bluntly told the Penn State audience that its fiasco never should have happened, never would have happened—including the punitive NCAA sanctions—had the board followed sound crisis management and crisis communications strategies.

Of the many blunders made, I highlighted only a few for the Penn State audience; there were many others. What follows is a summary of my remarks.

Blunder No. 1: The Firing. Whether or not I think Joe Paterno should have been fired is beside the point. But once the Board made the late night crisis management decision—“Joe must go!”—everything that followed was horrific crisis management and communications blunders borne of panic and ineptitude on the part of the BOT.

Unless you are issuing a warning that a train has derailed and toxic fumes are headed toward a residential area, or a dam is about to burst and may wipe out a town, or convicted killers have escaped from prison and are on the loose, or aliens have landed on the White House lawn…never hold a press conference or issue statements in the middle of the night. It sends the signal of someone—in this case, an entire board of someones—in panic mode. It was not the firing as much as it was the manner and the timing of it that was a direct cause of the late night student rioting. Sadly, this was completely foreseeable and entirely preventable. The Board, no doubt, felt besieged by reporters banging on its doors and was desperate for sanctuary.

What was gained by the late night firing? Where was the urgency? Was anyone in danger? Were any children at risk? No. What in the world was the Board thinking? If the decision was made to terminate him, the ending of Paterno’s career should have been done in daylight, perhaps at noon the next day. He should have been given the news by the president personally in the president’s office, and certainly not on the phone. Only cowards send lackeys to deliver tough news. That became as much of the story as the firing itself.

If Paterno had agreed to go quietly at that time—remember, at this time he had already said he would step down voluntarily at the end of the season, just a couple of games away—then a joint announcement should have been made, with President Erickson and Joe Paterno standing shoulder to shoulder. This would have served to somewhat quell the media frenzy and certainly would have played a large role in preventing any late night student unrest.

A good crisis manager would have made this happen. But at no time did the school have anyone with the proper crisis management experience advising them.

I have been told by several “in the know” individuals that the Board had so-and-so advising them, and so-and-so on the Board had even managed his company’s own crisis some years ago, etc., etc., so clearly they thought they had the best people advising them. Nevertheless, I stand by what I said: at no time did the Board have the right people around the decision-making table. In a crisis, you need experienced crisis managers who have distance and objectivity, and who are not emotionally tied to the outcome of events. That was a huge oversight and the cause of more troubles ahead.

So, why did the Board make the bone-headed firing play? They were reacting to the media frenzy and the mob mentality of a media horde that was screaming for blood. Firing Paterno was tantamount to throwing red meat over the battlements to try to appease the barbarians storming the gates. Again, the school had no one experienced in dealing with a media firestorm, and they caved, foolishly thinking the madness would go away once Paterno was sacrificed.

Hah!

The media were driving the story—not the grand jury presentment, which had charged Paterno with…nothing! But the wolf pack mentality of the media had them reporting “stories” ahead of facts and drove the story with wild abandon. The Board and the school were victims of reckless media driving.

Blunder No. 2: Louis Freeh and the Freeh Report. In my career, I have been involved in calling for outside independent investigators a number of times. We have even used retired FBI investigators to uncover the facts in a crisis. Hiring a guy like Freeh was the right move in that it sent a strong crisis communications message that the school was serious about uncovering the truth. But it seemed that no one on the Board had a handle on Freeh and he became a rogue cowboy.

The generally accepted method for this procedure would have called for Freeh to submit to the Board (or a special sub-committee of the board) a draft of his report before it was finalized and released to the public. This would have given the Board a chance to review the draft findings and ask questions for clarification, and so on, so as to avoid being blindsided. It would also have given the Board a chance to flag or correct any perceived inaccuracies in the report. This is a common courtesy. None of this was done, which was a huge flaw in the Board’s competence level not to insist on it.

Next, the seven-page press release, which the Board never saw in advance, and which Freeh read to the media on live TV, made charges that were not supported by the actual 267-page report. Freeh hyperbolically connected dots that the written report did not, some of which are spelled out in detail in my book. Suffice it to say, had a draft report been provided in advance—along with a draft of the press release—these things would have been caught by a competent crisis communicator.

But aside from that, who gave Freeh leave to hold his grandstanding news conference? I doubt anyone would want to take credit for that gaffe. The school—who, after all, hired and was paying Freeh—should have released the findings of the report, perhaps in a joint Erickson-Freeh press conference. But apparently the media spotlight was too tempting for Freeh and he did not give anyone a chance. (That’s what I mean by getting “a handle” on Freeh.)

Freeh completed his news conference in Philadelphia at 11:00 a.m., while the board was meeting on other matters in Scranton, PA, about 150 miles away. Yet without having the time to read, digest and/or question the report or its authors, the Board—in my view—arguably committed malfeasance when Erickson and Karen Peetz, newly minted chairwoman of the Board of Trustees at the time, issued a statement in which they said that the Board accepted Freeh’s report “unconditionally,” all the allegations it contained, and the more than 100 recommendations it proposed. The Board questioned nothing; it investigated nothing; it challenged nothing. The Penn State faithful can only be grateful that Freeh did not also accuse the school of complicity in the Lincoln assassination.

Many of the problems with the report that are surfacing now would have been caught before the report was made public, but the impotence of an ill-advised Board failed this important crisis task. Consequently, the universe has a badly skewed, negative image of a great university that will take years to eradicate.

Blunder No. 3: The NCAA. Penn State allowed itself to be bitch-slapped by the NCAA and its president, Mark Emmert, who I have described as a brass-knuckled bully.

The Board’s ill-conceived decision to accept the Freeh Report “unconditionally” gave Emmert and his henchmen carte blanche to rain a mountain of hurt on a badly-weakened university. Sanctions are one thing; what the NCAA did is known as “piling on.”

But consider: whatever mistakes the Board committed by accepting the Freeh Report, the school was still entitled to its day in NCAA court. Meaning, there should have been a formal investigation by the NCAA into any alleged transgressions at the school. Emmert stated publicly that he was side-stepping that standard and well-established operating procedure because the Board had unconditionally accepted the accusations in the Freeh Report. This was a huge error on the Board’s part to let that end-run scheme go unchallenged.

Here’s an analogy: Often in real life, a criminal trial is followed by a civil trial. Think O.J. Simpson or Michael Jackson. It is never the case that a defendant who has been found guilty in a criminal hearing will simply waive his legal rights by saying, “Well, since I was judged guilty in the criminal phase, I guess I’m also guilty in the civil phase; let’s skip that trial.” But that’s exactly what happened here.

Had the school lost its mind?

With more than 30 members sitting on the Board, weren’t there any lawyers there familiar with basic jurisprudence? Why didn’t the Board demand a separate NCAA investigation, to which they were entitled? Why did the Board accept this NCAA rush to judgment?

For the same reason they were accepting everything else: they thought the quicker they allowed their skin to be peeled back and flayed the quicker this torment would be over.

On the subject of the sanctions, I have a problem viewing the vacating of 111 football wins as anything other than punitive and mean-spirited, and having nothing to do with the actual reasons for the sanctions. The only people who suffer by this move are the student athletes, past and present, who are completely innocent of any improper actions. Their hard work on the gridiron has been eviscerated.

If the NCAA wanted to do something in that regard, they could have put an asterisk next to those victories in the record book. Explain history, don’t rewrite it. But the Board remained mute and completely ineffectual.

Pete Rose, who was banned for life from Major League Baseball from having gambled on games in which he was an active player and later manager, still holds the all-time record for hits: 4,256. He will never get into the Hall of Fame, but his record is an undisputed part of MLB history…until it is broken.

Next, Emmert said that Penn State had put football ahead of education, giving the erroneous impression to the world that all the school cared about was recruiting muscle-bound football players who had nothing between their ears, but who could help Paterno garner Ws on Saturdays in the fall. If the unenlightened Emmert had bothered to read his own NCAA website, he would have seen that Penn State’s GSR (Graduation Success Rate) for football players that year was a very impressive 87 percent—second in the Big Ten and tied with Stanford for 10th place nationally. Those statistics hardly qualify for the ridiculously unfounded charge of “putting football ahead of education.”

This is a common problem in high profile crises when people speak for sound bites rather than from facts.

But the Board never bothered to correct this erroneous accusation, which was easy enough to do. Was the Board so stunned and dazed by events that they didn’t think to correct such an inaccurate comment by the head of the NCAA? Inexcusable!

Finally, much has been made lately of the NCAA’s easing of some of the sanctions in light of a favorable compliance report by former U.S. Sen. George Mitchell, who was hired by the NCAA to monitor Penn State’s clean up actions.

I don’t buy it.

I think the NCAA realized a long time ago that it went too far and established dangerous precedents that it was not prepared to defend going forward. The NCAA was looking for a way to back track, and the Mitchell Report gave them cover.

It is not easy to stand up to the NCAA, but the Board owed it to the school and to the vast Penn State community to stand up for the university.

Its abject failure to do so was one of the biggest crisis management blunders of all.

Penn Staters for Responsible Stewardship is proud to announce the addition of Dan Wallace to our Board of Directors. With a strong interest in government relations, Dan has been interacting with state legislators on critical issues related to the Sandusky Scandal. In his new PS4RS board role, Dan will continue to utilize his experience in dealing with local, state and federal officials to keep the membership of PS4RS informed, and will represent the organization at key meetings, hearings and other government events that affect the future of Penn State. Dan plans to be an “Alumni Advocate” for truth, justice, transparency and excellent governance. A graduate of the Smeal College of Business, and Past President and active member of the Football Letterman Club, Dan has enjoyed much success through his career in corporate real estate development. We’re glad to welcome Dan aboard, and are confident that his experience and interests will further expand the role of Penn Staters for Responsible Stewardship in the ongoing effort to achieve positive change at our great University.

Former Senator Bob Jubelirer sent the following letter to Trustee Keith Eckel inviting him to publicly debate Penn State governance reforms.

Dear Keith:
I very much appreciated the opportunity to address the Board for three minutes at the recent Trustees meeting on September 20. However, I was somewhat surprised you chose to respond to my remarks, which I understand is highly unusual. I did hear some of your comments even though your back was to me, and therefore I asked for another minute to respond to you. Unfortunately I was denied. We clearly have a difference of opinion on the appropriate role of the Board in reforming critical governance issues. As you know there is legislation in Harrisburg in both the House and the Senate that would dramatically change the makeup of the membership as well as how the Board operates.

Therefore I would like to invite you to discuss these important issues in a public forum on campus this fall where the two of us can have a moderated debate on whether the changes you related in your response to me represents real reform, or whether significant new state legislation is needed to affect that change. I am sure we can enlist an agreed-upon a third party organization to sponsor this exchange and establish a fair set of rules of engagement.
Keith – we have known each other for a long time. I respect you very much, but it is clear that we do not agree on some critical matters surrounding transparency and other governance issues. As I said in my comments to the Board this only engenders mistrust.

Please be aware that I am forwarding copies of this email to various members of the media who covered the Board of Trustees Meeting.

I look forward to your response and am confident that we can enlighten students, alumni, faculty and other Penn State constituents who continue to remain interested and invested in the future of our beloved university who choose to attend.

Sincerely,

Bob Jubelirer

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