Friday, July 13, 2012

The Freeh Report: Paterno Statue, Football Program, Spanier & Penn State Liability

Former FBI director Louis Freeh's report revealed that coach Joe Paterno, Athletic Director Tim Curley, Vice-President Gary Schultz (both depicted in the photograph on the left) and University President Graham Spanier acted in concert to cover up Jerry Sandusky's criminal acts.

The report is devastating (read it here). High ranking University officials showed a complete disregard for the well-being of children. Rather than take active steps to end Sandusky predatory behavior, the University engaged in a concerted institutional effort to safeguard the legacy of its football program, coach and brand.

While many their suspicions, Freeh's report confirmed that this seems to have occurred.

What is the fallout from Freeh's report? Here are some things to consider.

1) Penn State Liability

Your basic legal principle is this: an employer can be liable for the acts committed by an employee in the course of his or her employment. 

The employer won't be liable if an employee does something that is clearly outside the scope of his responsibilities. However, if an employee is discharging his duties but doesn't do it right or is negligent, liability can follow the employer.

And that's what we appear to have here. Spanier, Schultz, Curley and Paterno appear to have worked in concert to cover up Sandusky's actions. This creates liability for Penn State since its employees were, in part, negligent in discharging their duties. For legal purposes, these 4 people will be considered "Penn State" (although the school would argue that).

Remember up until sometime in September 2011, and despite retiring in 1999, Sandusky still had a Penn State office, email, telephone number and faculty listing, while also enjoying the title of assistant professor emeritus of physical education. So not only did Penn State keep him around, it also legitimized Sandusky on and off campus.

The liability would likely only extend to when Penn State employees knew (or ought to have known) about Sandusky's molestation of children and did nothing. We don't know when that was. We do know that the University was made aware of a 1998 incident which included a police investigation. Despite the investigation, Sandusky was not fired; rather he was barred from accessing the Penn State locker room.

So for plaintiffs suing Penn State for money, that will likely be a starting point. Note that in one lawsuit already filed, a Plaintiff has alleged that Sandusky “had been molesting children since at least the 1970s”.

So when Penn State employees knew or should have known something was going on will become an important issue.

This report is devastating for Penn State and could result in massive - if not catastrophic - monetary damages against the University.

2) Paterno Statue

There is a 7-foot statue of Joe Paterno at Penn State. To the left on a wall are the words “Joseph Vincent Paterno; Educator; Coach; Humanitarian.”

The statue depicts Paterno, running in front of four players and his right index finger is pointed high. On the wall is a quotation from Paterno. “They ask me what I’d like written about me when I’m gone, I hope they write I made Penn State a better place not just that I was a good football coach.”

In light of Freeh’s report, the question is whether the statue, unveiled in 2001, should come down?

Paterno taught his players to do the right thing, to take responsibility for their actions and to admit when they were wrong. Paterno held his players to the highest moral standards and over the years became a symbol of morality.

Now his statue has become a symbol of a wholesale institutional failure to stop Sandusky. It has become a symbol of doing the wrong thing rather than the right thing.

The Paterno statue no longer stands for the right thing and for that reason must fall. 

3) The Football Program

Some people are calling for the termination of the Football Program. It is difficult to argue with that demand. However, if the people that are responsible are held responsible - and more precisely criminally responsible - is it then necessary to then deprive the University of its Football Program? 

While there is no right answer, there is the argument that terminating the program becomes unnecessary under those circumstances. By removing the program, we would be letting the actions - or inactions - of a small group of people deprive students that have done nothing wrong with the chance to watch and play football.

Football does seem trite when juxtaposed beside this entire affair. As well, punitive measures are critical here. Still, so many people that did nothing wrong would be penalized for something they did not do. This is a tough one.

4) Graham Spanier

Curley and Schultz are facing perjury charges and are headed to trial in the Fall. 

But what of University President Spanier?

Spanier denied that the incident was reported as “sexual in nature” and confirmed that Curley and Schultz did not indicate that they would report the incident to police.

Spanier also denied being aware of the 1998 incident.

Now we have learned that this was not the case. With respect to the 2001 incident, Curley changed his mind and recommended in an email to Spanier that they should not move against Sandusky:

"After giving it more thought and talking it over with Joe yesterday, I am uncomfortable with what we agreed were the next steps. I am having trouble with going to everyone but the person involved. I would be more comfortable meeting with the person and tell them about the information we received and tell them we are aware of the first situation".

Spanier responded with:

"I am supportive. The only downside for us is if the message isn't heard and acted upon, and then we become vulnerable for not having reported it."

So did Spanier lie under oath? This may be examined by the Attorney General to determine if perjury and obstruction of justice charges are appropriate. 

This horrific case has many tentacles and is far from over.

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