Emails: Penn State football nearly got 'death penalty'

Mark Scolforo
Associated Press

Harrisburg, Pa. — A 2-year-old email from NCAA's top lawyer, filed Thursday in a court case, documents just how close Penn State came to having its football program shut down over the Jerry Sandusky child abuse scandal.

The email from NCAA attorney Donald Remy says the school's "cooperation and transparency" saved the program.

The email, sent to Gene Marsh, an attorney who was working for Penn State, was attached to a court filing as the NCAA fights with two state officials over the 2012 consent decree that fined the school $60 million, banned it from bowl games for four years and took away 112 wins.

The email recounts that on July 17, 2012 — less than a week before the Penn State sanctions were announced — a majority on the NCAA executive committee favored the "death penalty" that would shut down the football program for several years.

In the September 2012 email, Remy reiterated that he had previously told Marsh that the death penalty was not reserved for repeat offenders and that a traditional enforcement process would likely result in its imposition.

"In a subsequent call we informed you that it was Penn State's cooperation and transparency that encouraged members of the executive committee to forgo the pursuit of a stop in play," Remy wrote.

The consent decree announced by the NCAA and Penn State also reduced scholarships and placed the school on probation.

The NCAA recently ended the bowl ban and restored the scholarships sooner than had been expected.

At a Penn State board meeting in August 2012, then-president Rodney Erickson called signing the consent decree the hardest decision of his 40-year professional career. He has since retired from the university.

The consent decree included language that the death penalty was not considered appropriate because Penn State had no prior major violations, accepted the penalties, commissioned the Freeh investigation and "provided unprecedented access and openness, in some instances, even agreed to waive attorney-client privilege, and already has implemented many corrective actions."

Sandusky, the school's former longtime defensive coach, was convicted in June 2012 of 45 counts of child sexual abuse, including incidents on campus. He was sentenced to 30 to 60 years in state prison.

Remy's email was attached to a filling as the NCAA defends itself in a case brought by state Sen. Jake Corman and state Treasurer Rob McCord to enforce a state law requiring that the $60 million remain in Pennsylvania. The NCAA has agreed to that, but the judge handling the case has scheduled a January trial on wider issue of the legality of the consent decree.

The NCAA on Thursday filed a motion seeking to prevent Corman and McCord from claiming that Penn State was essentially forced into the consent decree under duress. The NCAA argued that state law does not allow such a claim when the party involved was able to consult a lawyer beforehand.

"It's a question of whether or not the parties had the legal authority to enter into the contract, whether or not the contract accurately represented the parties' authority to enter into it, (and) whether or not the contract, as a matter of state law, was lawful as to how it was arrived at," McCord lawyer Christopher Craig said Thursday.

Last week, the state Supreme Court turned down the NCAA's effort to prevent the trial.

The Remy email is among dozens that have been attached to case filings in recent days. They include some that document how former FBI director Louis Freeh's investigative team, hired by Penn State to examine how the school handled the Sandusky case, was in regular contact with the NCAA as it worked to produce the Penn State report.

Critics of the consent decree cite the regular contact as evidence that the Freeh report was not a truly independent investigation. The Penn State board chairman and president said last week they were disturbed by references in those emails that showed NCAA officials debating whether the penalties against Penn State would hold up, describing their approach to the university as a bluff.