The Record


King & Spalding


  • The NCAA improperly relied on the Freeh report in compelling Penn State to enter into a “consent” decree and accept draconian penalties. Only eleven days after the release of the Freeh report, and without conducting any factual investigation of its own, the NCAA announced severe sanctions that deeply impacted the University and the community. The NCAA circumvented its established enforcement mechanisms and violated its own due process rules. It never identified a single infraction of NCAA rules based on Sandusky’s crimes, much less an infraction by Penn State that implicated the NCAA’s jurisdiction and core mission of ensuring competitive balance in amateur athletics.
  • The Freeh report is full of errors, unsupported personal opinions, improper allegations and biased assertions. Despite the Freeh report’s claim to the contrary, access to vital documents and critical witnesses was severely limited. Those limitations, which were understated or ignored in the report, call into question the report’s legitimacy. Despite reportedly reviewing millions of documents and interviewing hundreds of witnesses, the Freeh report relies primarily on a handful of emails, none of which Joe Paterno authored or received, to make assertions about Joe Paterno, and shockingly does so even though Mr. Freeh never interviewed the actual authors of the emails. This Critique of the Freeh report addresses seven of the most egregious, unfounded, and unfair conclusions about Joe Paterno; the three other expert reports attached to this Critique combine to expose and address many more.
  • The facts establish that Joe Paterno acted honestly and in good faith throughout the Sandusky scandal, from the moment he received Mr. McQueary’s 2001 report, through his grand jury testimony, until the day of his death in January 2012. Dr. Fred Berlin, a preeminent physician and psychologist from The Johns Hopkins Hospital and School of Medicine, studied and reviewed the evidence in this case, and he assessed Joe Paterno’s life more broadly. Dr. Berlin concluded:
    • “I have not seen evidence supporting a conclusion that Joe Paterno had acted in bad faith, nor have I seen evidence supporting a conclusion that he has ever been a man who lacked a genuine concern about the wellbeing of others — including the wellbeing of children.”
    • “In my professional opinion, there is absolutely nothing about the way in which Mr. Paterno had led his life, or about his characterological makeup, that would support the unsupported inference that ‘in order to avoid the consequences of bad publicity,’ he had been one of the ‘powerful leaders’ at Penn State who had ‘repeatedly concealed critical facts related to Sandusky’s child abuse from the authorities, the University’s Board of Trustees, the Penn State community, and the public at large.’”
  • In any fair courtroom or truly independent investigation, the target of an inquiry rightfully would expect all the facts, including the full scope of his life, to be considered when assessing his culpability. In this instance, however, the Freeh report ignores Joe Paterno’s lifetime record of moral conduct and altruism as if it were irrelevant to the case. Experts in the behavioral dynamics of child sexual victimization, as well as experts in conducting sensitive investigations, have concluded that such an omission was a serious flaw that undermines the credibility of the report. That conclusion is captured by Dr. Berlin:
    • “Joe Paterno had known very little about the extent of the acts for which Mr. Sandusky had subsequently been convicted. In my judgment, given his history of a life well led, and of good character, and in light of the unsubstantiated nature of the inferences against him, to conclude that for any reason he would have been unconcerned about the wellbeing of children, would require turning a blind eye to the values that he had consistently demonstrated, and to the essence of what his life had been all about.”
  • Joe Paterno died just over a year ago concerned for the victims, determined that the full truth should be revealed, and hopeful that these events could raise consciousness of child abuse detection more broadly and prevent its recurrence. As in his life, Joe Paterno remained committed to helping others at his death.
  • Sue Paterno and her family remain deeply committed to that mission and will continue supporting significant steps, and making more contributions financially and emotionally, to increase child abuse awareness, identification and education in this country. This effort is one important chapter in that journey.

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