409, But No Joy.

(UPDATED JAN. 22, 2015)

As anyone who has read my most recent book, Crisis Communications, or followed my writings about the Penn State/Jerry Sandusky scandal elsewhere, or my public statements in numerous speeches and national media interviews can attest, I have long championed the reinstatement of the 111 vacated wins stripped from former Penn State football coach Joe Paterno’s record. The actual line I used many times was succinct: Explain history, don’t rewrite it. I pointed out that vacating those wins was purely a vindictive and punitive act by the NCAA.

So, why aren’t I cheering the announcement that the NCAA and the Penn State board of trustees had agreed on a settlement (of sorts) that Paterno’s vacated wins would be reinstated and the plaintiffs (two state officials, not Penn State) would drop this portion of a precedent-setting lawsuit?

Because this act settles nothing. If anything, it further obfuscates the heart of the matter. The still naïve Penn State board almost trampled each other in a stampede to vote their unanimous approval for this deal. This is exactly the same jump-on-the-bandwagon-mentality that got the school into this mess in the first place. This board is the gang that couldn’t shoot straight, writ large. 

One of the purposes of the litigation was to expose the NCAA and its power grab for what it was. The NCAA sanctions – the infamous consent decree – never should have happened because the issues under review were criminal matters, not NCAA infractions. The NCAA had no jurisdiction, yet they grabbed it anyway, while the board was too numb to see what was happening. The court case, in part, was designed to prove that and, in so doing, have the court vacate the entire consent decree because the sports authority overstepped its bounds by a wide margin when it forced it down Penn State’s throat. There was every indication that Pennsylvania Commonwealth Court Judge Anne Covey was heading down that path. Every time the NCAA filed a motion to dismiss the case for various reasons, Judge Covey said this case is going forward. She was due to rule on the legality of the consent decree. Stated more succinctly, she was going to rule whether or not the NCAA had the authority to act in the authoritarian manner it did. And the absolutely last thing the NCAA wanted was to have anyone challenge – or worse, overturn – its authority.

But with this “settlement,” that examination doesn’t appear likely to happen.

There is a world of difference between having Joe Paterno’s win record restored because the NCAA never should have imposed that sanction in the first place, and a “settlement” agreement. The tally may come up to the same impressive number of wins – 409 – but the methodology makes all the difference. And because of a “settlement,” the stench of wrong doing still hangs heavily in the Nittany Lion air.

In the press release the NCAA issued immediately after this agreement, NCAA board member Kirk Schulz, Kansas State University president, boasted, “Today’s agreement with Penn State reaffirms our authority to act.”

But Pennsylvania state senator Jake Corman, one of the lead plaintiffs, had a different – and woefully naïve – perspective. “This is a win,” said Corman.  “The NCAA has surrendered. The agreement we have reached represents a complete victory in the issue at hand – the consent decree is voided.… This validates our position that the rush to judgment against the Penn State Community was wrong….” 

It does no such thing, Sen. Corman. It proves nothing, except how woefully naïve the board of trustees still remains. The board still does not understand any of the basic precepts of crisis management and crisis communications.

Corman also said, “As we progressed through the case, it was clear that the consent decree could not stand up to the legal challenge.” I agree, which is why I think a settlement without a statement from the NCAA admitting that the consent decree never should have been imposed was another example of otherwise well-intended people not understanding the power of crisis communications. Once again, I think the NCAA played Penn State and the plaintiffs in this case like the proverbial violin. That’s why you can have blowhards like Schulz claiming complete victory. Schulz is correct: this is a victory for the NCAA. The Penn State board of trustees was once again hoodwinked by the smarter, slicker NCAA.

The litigation was supposed to address the legality (or lack thereof) of the consent decree, of which the vacating of legitimate football victories was only a part. From the outset, the NCAA tried every trick up its sleeve to get the case thrown out, but they met their match in Judge Covey, who was determined to hear this case. At issue was nothing less than the NCAA’s testicles: Did the NCAA have the authority to impose these sorts of draconian sanctions, especially given all the highly questionable goings-on behind the scenes to force Penn State into voluntarily accepting the sanctions? One high-ranking NCAA miscreant boasted in an email to chief thug, Mark Emmert, that they had successfully “bluffed” Penn State into accepting sanctions, fully believing that they – the NCAA – didn’t have the authority to act.

If, as Corman said, it was true that the “consent decree could not stand up to the legal challenge,” why on earth cave in on the case now? This should be the time to double down and press forward.

This was a “back room” deal negotiated by a small group of the entrenched members of the BOT and the upper echelons of the NCAA. Only as a result of these legal proceedings did documents and emails come to light that revealed the NCAA’s unscrupulous methods in pressuring Penn State into accepting the consent decree. I have to wonder aloud what the NCAA promised – or threatened – to get to this “settlement.” It is important to remember that the entrenched members of the BOT were in lockstep with the NCAA all along. They and the university were never plaintiffs in this matter. The settlement vote of the board was unanimous, but I am surprised that the nine alumni members of the board went along with the vote. They perceived this as a victory; it was nothing of the sort.

There will still be a stench attached to the number of wins. Those critics – and they are out there, believe me – who disagree with the reinstatement of Paterno’s wins will never acknowledge that they should be counted. (As one example, just consider the rant (click here) of the sadly ill-informed Keith Olberman). They have already started beating the drum that the only reason the NCAA reinstated Paterno’s victories was to try to sweep the issue under the carpet before the just concluded NCAA annual meeting and convention.

Yes, I wanted the vacated wins to be reinstated, but not like this. This settles nothing, except how inept the Penn State board continues to be.