The Nittany Turkey

Primarily about Penn State football, this is a tale told by idiots, full of sound and fury, signifying nothing.

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McCombie’s Letter to the BoT

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The following letter was sent yesterday by PSU trustee Ryan McCombie to Keith Masser, Chairman of the Board of Trustees. It was subsequently forwarded to the PS4RS mailing list. It is certainly worth sharing.

May 29, 2013

Dear Chairman Masser
Board of Trustees
The Pennsylvania State University Board of Trustees:

Early tomorrow, a group of current Trustees, faculty members, former student-athletes, former coaches and others, including members of the Paterno family, will file a civil action against the NCAA regarding the unlawful manner in which the Association, its President Mark Emmert and former Chairman Ed Ray acted to impose the excessive and unreasonable sanctions against The Pennsylvania State University.

I have spent much of my adult life overseas, most often in third world countries, working and fighting to preserve the freedoms that all Americans enjoy. The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian government manages personal behavior is the rule of law.

The rule of law is a three-legged stool on which freedom sits: (i) The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority; (ii) the second leg is that no one is above the law and no one is beneath it, and (iii) the third leg requires that the laws not be changed retroactively or without notice by those who enforce them. (excerpted from Judge Napolitano, JW Review article of 19 July 2012).

I believe that the NCAA has violated all three of these principals. ???? ????? I further believe that as the Penn State situation demonstrates, the NCAA is an out-of-control monopoly and that it has used its excessive power to threaten and bully its members.

The NCAA states that it is a voluntary organization and mandates that each voluntary member abide by its rules, decrees, sanctions and penalties or withdraw from the Association. This is disingenuous. The NCAA has a stranglehold on major college sports. A University cannot play sports on the national stage without membership in the NCAA. Therefore, the NCAA is a monopoly. ???? ???? ????

This lawsuit is being filed only after much thought and careful reflection. I have had many passionate conversations with Penn State faculty and staff, some of whom have asked to “just allow us to move on for the sake of our students.” I have heard the pleas of President Erickson and former Chairwoman Peetz of the Board of Trustees to do likewise. I understand that all of these dedicated professionals want to go on with their mission of educating our students. I also understand the risk that the NCAA may attempt to increase or enhance the sanctions unless we simply capitulate and surrender without complaint. However, I believe that there is a greater lesson here. Our fundamental civil rights are tenuous and fragile. If we do not stand up and defend them, we risk losing them. If we do not act to defend the civil rights of others, we risk losing our own.

I do believe that the principles contained in the NCAA-required “Athletics Integrity Agreement” are a matter of good governance for any University. Nevertheless, as difficult as our present circumstances are, I believe we have an obligation to ensure that our students understand that there are risks and potential adverse consequences in not standing up for fundamental rights.

I also believe we have an obligation to our faculty and alums to find the core truth of what may have happened at their alma mater and take steps to ensure that appropriate punishment is imposed for those guilty of committing criminal offenses. ???? ????

Americans are a fair-minded people and we have an obligation to ensure that fairness, due process and the rule of law is honored and fully supported.

For these reasons and others, I have agreed to participate in filing and prosecuting this civil action against the NCAA.I do not seek a predetermined result and have no idea what the outcome will be. If there is blame to be borne by any of our officials, a due process hearing will not hide the facts and we will accept the judgments that follow. There have been a great many mistakes made in this tragic and unfortunate situation, which began with the shameful victimization of young children by one man. However, these mistakes are compounded by an organization that has become too powerful, too thirsty for positive media attention, and too willing to use its authority in a manner that went well beyond its charter, by-laws or established precedent.

Respectfully,

Ryan J. McCombie
Member, Board of Trustees
The Pennsylvania State University

Sudden Impact — Pivotal Board Meeting

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Today at 5 p.m. the Penn State board of trustees will convene via telephone to ratify the July 23 consent decree between Penn State and the NCAA. The board hastily called this meeting on short notice at another meeting last Tuesday that in itself might have been illegal under the Pennsylvania Sunshine Act because it was conducted privately and without notice to the public.

“Penn State should start an immediate search for a new University President, one who will abide by and understand the rules by which he/she is expected to operate.” —Dan Myers, president and publisher of StateCollege.com

Nice background for an important meeting, eh? Our BOT chairwoman, Karen Peetz,wants to put all matters Sandusky behind us and focus like a laser on the future. Well, the BOT seems to be a few photons short of a coherent light beam, if you ask this Turkey, himself an amateur quantum metaphorist. There is little concern by the majority of the board that the NCAA rushed to judgment, Erickson rushed to sign a pre-emptive consent agreement under a direct threat of multi-year shutdown of the football program, and that the board has not done so much as examine the Freeh report, upon which the NCAA has based its sanctions against Penn State, before seeking closure on this matter.

Obviously, many alumni are disgruntled, as are their representatives on the BOT. However, as commenter BigAl pointed out, the trustees elected by the alumni wield little power on the board, to wit:

I’m not sure the majority is all that docile, it’s just that approximately 10 trustees have taken over the board. And they run things by using Politburo rules and sticking together like the “popular kids” in a junior high school student government.

Review of the Board of Trustees’ committee structure makes it obvious that the alumni elected trustees (and by extension the alumni themselves) have virtually no power because the board agenda is controlled by the trustees selected by the business societies with some assistance from the trustees from the agricultural societies.

Every BOT member has a least one committee assignment but the alumni trustees are packed into the least important committees like Outreach, Development, and Community Relations and Academic Affairs and Student Life.

In contrast, the business trustees dominate the committees that hold the real power like the Executive Committee, and the committees on Governance and Long Range Planning, Legal and Compliance, Audit and Risk, and Finance, Business and Capital Planning.

The business trustees’ stranglehold over the Executive Committee is particularly flagrant. All 6 business trustees serve on this 11 person committee and compared to only 1 (Marianne Alexander) of the 8 alumni trustees.

The business trustees also constitute the largest presence on the Audit (3 of the 7 committee members), Finance (3 of 8), Governance (3 of 10), and Legal (3 of 9) Committees. The alumni trustee presence on the Audit (1 of 7), Finance (0 of 8), Governance (2 of 10), and Legal (1 of 9) is obviously less. And the disenfranchisement of alumni trustees is more obvious when one considers that there are 8 alumni trustees compared to 6 business trustees.

Also, if you look at each trustee’s committee assignments , it becomes apparent that the trustees are not equal in power and influence. Only 2 of the 8 alumni trustees appear on more than one important committee – Marianne Alexander and Stephanie Devinney. Based on committee assignments, the other power players on the BOT are Alvin Clemens, Mark Dambly, Keith Eckel, Ira Lubert, Keith Masser, Karen Peetz, Linda Strumpf and John Surma.

I believe that nothing is going to change with Penn State’s incompetent, unresponsive BOT until most of the 10 power players named above are replaced. Unfortunately, only Alexander (term expires 2014) and Devinney (expires 2013) can be removed through the alumni vote. Anybody have any suggestions/ideas for removing the others??

Just to make life more difficult, the governor and his appointees are solidly in favor of burying the matter for good, no doubt for politically expedient reasons.

However, two directors have been active in attempting to sway the rest of the board to slow down: Joel N. Myers and Ryan J. McCombie. Both have written letters to the board that are worth reading. If you have any interest in this matter at all, you will read them. These men are not crackpots or gadflies. Myers is chairman and CEO of AccuWeather, which he founded. McCombie is a retired Navy SEAL.

Another worthwhile read is the editorial written by Joel Myers’ son Dan Myers, who is the president and publisher of StateCollege.com. There are plenty of juicy tidbits in it beyond telling the board to reject the consent decree, including some good links to collateral documents.

I also want to go a bit off-topic (but this is Sudden Impact) in order to point you toward a look inside The Second Mile, the children charity founded by Jerry Sandusky, written by Sara Ganim, the Pulitzer Prize winning reporter for the Patriot-News. Among other things of which I was unaware, Ganim writes that a “team of officers from the FBI, the U.S. attorney’s office and U.S. Postal Inspection Service are searching records and interviewing people.” I didn’t even know that The Second Mile was under investigation.

I’ve given you enough preparatory reading for today, so that’s it for another issue of Sudden Impact, where we hit you right between the eyes with our .44 magnum detritus.

Four PSU Trustees Appeal Sanctions

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Even though NCAA spokesman Bob Williams declared last week that the Penn State sanctions are not subject to appeal, four trustees, led by retired Navy SEAL Ryan J. McCombie, who was elected to the board in June have filed a letter of appeal with the NCAA. ESPN is reporting:

Trustees and a person with first-hand knowledge of the discussions said the move is a precursor to a federal lawsuit asking a judge to invalidate the sanctions, because trustees expect the NCAA to reject the appeal.

Essentially, McCombie is saying that the NCAA did not follow its usual investigation and enforcement procedures with Penn State, that the consent decree is unfair because it relies on the Freeh report (which contains some disputed unproven conjectures) and that the sanctions are “excessive and unreasonable”, inflicting “permanent damage to an entire generation of student athletes and coaches who were innocent of any wrongdoing during their time on campus…”

McCombie retained the Boston law firm of Jackson Lewis to file the appeal. He wrote a letter to trustees Monday afternoon asking for their concurrence. Three immediately hopped on board. There was no comment as to whom, but I think we can probably guess at least three of them pretty quickly.

McCombie wrote to the trustees that it was his belief that the matter required board approval and that the board should engage in a full and complete review.  He went on to write, “Furthermore, only after we have given all involved the opportunity to be heard can we move forward together as one university.”

No comments were to be had from either Penn State or the NCAA.

Well, this should drive a wedge into the board. These are interesting times. If the NCAA does shut down the appeal, which is I think about 105% likely, and the federal courts get involved, the case could broaden and get into all kinds of great anti-trust issues with the NCAA. They deserve to be slapped down by somebody, and who better than a Federal court to do it? Maybe pay liquidated damages to all the members and then reorganize into a helpful adjunct, rather than a dictatorial Kindergarten teacher.

I’m going to have my cookies and milk and think about this a little more.

Meanwhile, for those who want to read the actual appeal, I have it available here for downloading. PSU_trustee_appeal (pdf – 174K).