The Crisis Blog

The recent decision by a Pennsylvania Commonwealth Court to look into the validity and legality of the NCAA’s unprecedented 2012 sanctions against Penn State University in the wake of the Jerry Sandusky child sexual abuse criminal matter, reinforces the case I first laid out in my book, Crisis Communications: The Definitive Guide to Managing the Message, about the ineptitude of the school’s board of trustees in its bungling of the crisis.

In a chapter in the book called, “Say It Ain’t So, Joe! – The Penn State Crisis,” I argue that the NCAA went too far by blatantly circumventing it’s own well-established procedures for investigating infractions and meting out punishments unilaterally. I wrote, “It was a crisis communications decision that the supercilious NCAA may one day rue. It inadvertently crossed a Rubicon by taking what it viewed as an expedient shortcut, and in effect compromised the integrity of its own future investigative authority. Others have claimed this NCAA bitch-slapping of Penn State was a way for (NCAA President Mark) Emmert to bolster his own persona.”

Well, it seems the court agrees with me and the NCAA chickens may have finally come home to roost.

In the case now before the court, Corman v. NCAA, (Commonwealth Court of PA, No. 1 M.D.2013), the court said it will look at the entire list of NCAA sanctions to determine whether they were legal. One of the consequences of the NCAA’s strong-arm tactics was to force Penn State into signing a sweeping consent decree. Among other things, the consent decree stipulates that the University agrees to the sanctions without exception, and if the school ever sues the NCAA to reverse any of those sanctions, the sports authority would impose the so-called “death penalty,” meaning no football at Penn State for a year or more.

“(T)he real news is the apparently unanimous feeling among the judges, dissent included, that the consent decree exceeded the NCAA’s jurisdiction and should not have been approved by Penn State’s board,” according to comments made by attorney John J. Hare, which appeared in an article by Legal Intelligencer reporter Max Mitchell. I made the same argument that the board never should have signed the decree at the time it happened, and followed up by repeating this allegation in my book. It simply defied credulity for the board to have acted in such a perplexing and self-immolating manner.

Even President Judge Dan Pellegrini, who dissented, said he was “bewildered” and “concerned” about the circumstance surrounding the consent decree. “Against that backdrop,” said Hare,” it’s not surprising that the majority felt that the validity of the consent decree is properly at issue.“

But what’s also at issue is the competency of the board of trustees at the time, which approved and signed the consent decree in the first place. In so doing, the board signed away its right to sue the NCAA at a later time should it feel the need to do so. Thus, the case against the NCAA was brought by PA State Senator Jake Corman as lead plaintiff, not the university. But in an ironic twist, the courts ruled that the university must be a party to the suit.

So, being dragged into court effectively kicking and screaming, the university is loudly objecting to being a party to the case – a case that never would have existed in the first place had the board exercised sound and competent decision-making and crisis management skills in 2012.

An aggressive grassroots movement, Penn Staters 4 Responsible Stewardship, has made limited headway in unseating some board members and replacing them with reform-minded individuals. But with an over-bloated and well-entrenched board of nearly three dozen members, and the ability to replace only three (of a total of nine) alumni board members per year, it will take too long to effect real change, I fear.

Joe Paterno practiced what he termed “success with honor” for 46 years. The longer holdover members of the 2012 Penn State board remain in place, the more they tarnish the word “honor.”