Did Penn State really face the death penalty?

Rachel Axon and Erik Brady, USA TODAY Sports | USAToday

As a lawsuit against the NCAA in the wake of the Jerry Sandusky scandal at Penn State winds its way toward trial, depositions in the case have prompted questions over the validity of NCAA president Mark Emmert's threat that a committee of university presidents was in favor of shutting down Penn State's football program.

Emmert, in testimony in advance of a trial set for next month, says there was a "very strong consensus" on the 22-member NCAA executive committee to impose a multi-year death penalty as part of the school's punishment for its failure to take action years earlier against Sandusky, a former Penn State football assistant coach who was convicted in 2012 of serial child sex abuse and sentenced to 30 to 60 years in prison.

Rodney Erickson, Penn State's president at the time of the sanctions, said in his deposition that Emmert told him the "presidents want blood" and "would like to shut your program down for multiple years." The depositions, some of which have not been made public but were obtained by USA TODAY Sports, include details on days of communications in July 2012 that indicate Penn State officials believed they had little choice other than to accept the NCAA's harsh terms in a consent decree to avert the loss of its football program, a major revenue producer that helps pay for many of the school's athletic teams.

But in recalling those days in a deposition taken Dec. 8, six days after Emmert's, Oregon State president Ed Ray, who in 2012 was president of the executive committee, said talk of the death penalty for Penn State never gathered strong support. Ray said the committee discussed such a severe penalty twice – coming to no consensus the first time and voting against it overwhelmingly four days later.

Ray said he could not remember the vote outcome, "but if you told me it was 19 to 2, I would believe you."

The revelations come at a time when the NCAA is easing some of the historic sanctions, allowing Penn State to play in a bowl game this season and returning its full complement of scholarships for next season. The depositions are part of a lawsuit brought by state senate majority leader Jake Corman and state treasurer Robert McCord, who are challenging the validity of the consent decree between the NCAA and Penn State signed 11 days after the release of a school-ordered investigation by former FBI director Louis Freeh.

The NCAA and Penn State are defendants in the case, set for trial Feb. 17, although settlement discussions among the NCAA, Penn State and state officials are continuing, including talk of restoring 112 Nittany Lion victories dating to 1998.

Corman and McCord are challenging whether the NCAA followed its own constitution and bylaws and whether it acted in good faith, which is at the core of the question of whether Emmert misrepresented the executive board's desire to shut down Penn State football.

Citing depositions and documents obtained through discovery, the plaintiffs argued in a pre-trial statement that the consent decree "was a product of an abbreviated, eleven-day process wherein Penn State, though involved in 'discussions,' was deprived of a meaningful choice in the matter and was ultimately the recipient of a 'cram down.' That cram down was the product of a false threat that Penn State would otherwise receive the death penalty."

NCAA senior vice president of communications Bob Williams told USA TODAY Sports in a statement Thursday night: "President Ed Ray's testimony -- along with all the other evidence and testimony developed to date -- shows that the NCAA appropriately responded to the shocking and unprecedented failures at Penn State related to the Sandusky matter. Both the NCAA and Penn State were authorized to resolve those issues through the consent decree. As the evidence shows, the 'death penalty' was clearly on the table in the early meetings, but it was removed by the time the committee voted on the sanctions."

USA TODAY Sports asked for comment from several of the presidents who were on the executive committee in July 2012. Oregon State's Ray declined comment as did Wake Forest's Nathan Hatch and South Carolina's Harris Pastides. "Anything that's litigation-related," Pastides said, "we won't be talking about." Jacksonville State president William Meehan said by email that the death penalty "was something the Board discussed seriously in its deliberations" but that members "promised to refer all inquiries to the NCAA staff. I must continue to honor my promise."

Anthony Lubrano, an alumni-elected member of Penn State's board of trustees, said Thursday that the depositions confirmed his "suspicion that Mark Emmert took advantage of Rod Erickson's vulnerability. He knew that Rod Erickson was now the head of a wounded organization and he would likely do whatever he had to do to make sure it wouldn't get wounded further." And by threatening the death penalty, he knew he could have his way."

Freeh's seven-month investigation concluded that Penn State officials — including former president Graham Spanier and late football coach Joe Paterno — disregarded the safety of Sandusky's victims and concealed facts from authorities and the school's board of trustees. The report noted a "culture of reverence for the football program" in the Penn State community.

The release of the report sparked a flurry of activity, capped by the consent decree signed on July 23, 2012. USA TODAY Sports reviewed more than 1,000 pages of depositions, emails and other documents to piece together what happened between Penn State and the NCAA in the days that preceded that agreement.

Following a regularly scheduled board meeting, Erickson and Emmert discuss Penn State's pending response to a Nov. 17, 2011 letter from the NCAA that raised questions of institutional control.

In his deposition, Erickson says he cannot remember discussing any potential sanctions at this point.

Kevin Lennon, NCAA vice president of academic and membership affairs, emails Julie Roe Lach, then the NCAA's vice president for enforcement, to bounce ideas off of her about the Penn State case. He raises issues of whether the association has jurisdiction, what precedent would be set for other cases, what if any competitive advantage Penn State gained and whether the national office staff is adequately gathering input from the membership.

"It feels like it is a bit of a runaway train right now and I am a bit concerned on a couple fronts," Lennon writes.

Based on conversations with some presidents, Roe Lach says in an emailed response, Emmert believes Penn State gained a competitive advantage.

Emmert appears on PBS and is asked about the potential of Penn State facing the death penalty.

"I don't want to take anything off the table," he says.

Gene Marsh, a lawyer, longtime professor and former member of the Committee on Infractions, had been retained by Penn State five days earlier. He makes contact with Donald Remy, the NCAA's general counsel, instead of Roe Lach, signaling that the case will not be going through the traditional infractions process.

In an email conveying to Penn State his two discussions with Remy and vice president for Division I governance David Berst, Marsh writes that Remy "briefly mentioned" the death penalty.

During his deposition, Marsh says it was July 16 or 17 that Remy first told him, "The majority of presidents were talking about the cessation of play; in other words, the death penalty."

The NCAA executive committee holds a conference call for its initial discussion of possible Penn State sanctions. Emotions ran high, Ray and Emmert say in their depositions, but they give conflicting testimony as to the members' interest in the death penalty.

Emmert says there was a "very strong sentiment" to impose a suspension of play among the executive committee and Division I board of directors. "There was, as I recall, a very strong consensus among people on the call that circumstances this egregious warranted the death penalty," Emmert said in his deposition.

Remy, a longtime member of Emmert's inner circle, was asked in his deposition whether there was a prevailing view about what the appropriate action would be. "I wouldn't characterize it that way," he said, "but there was certainly a majority sense that one of the possibilities here clearly should be the imposition of a stop in play."

Ray says members held various views and that nothing was decided.

"Some people spoke in favor of it, or that it should be part of the package; others said they weren't so sure. Others didn't speak up at all," Ray said in his deposition.

By the end of the call, there was, "No consensus at all," Ray said.

When Lennon was asked in his deposition whether the committee supported the death penalty, he said. "Ultimately, I recall the board and the executive committee not gravitating to that response."

Emmert also spoke to Erickson, who said the NCAA president gave him the impression that if Penn State did not move toward accepting some sort of package of sanctions, the school faced a high probability of having its football program shut down.

Erickson remembers that call being the first time he and Emmert discussed potential sanctions, which included a $30 million fine, a loss of scholarships and a multi-year bowl ban. The case would not be going through the normal infractions process, Erickson says Emmert told him. That notion was not entirely unappealing to Penn State, which could avoid a lengthy investigation that would linger over the program and potentially result in an equally severe set of sanctions.

In their depositions, Erickson, Marsh and two other attorneys for Penn State testified that the impression throughout the week of discussions was that not only was the death penalty a valid threat, but one that could be imposed unilaterally by the executive committee.

Erickson believed that based on his conversation with Emmert earlier in the week.

"He said presidents want blood. He said they would like to shut your program down for multiple years; never seen them so angry or upset," Erickson said in his deposition.

"He thought the only way to head this off would be to craft a package of what he said would be very, very severe sanctions; that he might — he emphasized might — be willing to get the boards to look favorably upon."

Talks continue on parallel tracks throughout the week, with Emmert speaking to Erickson and Marsh primarily dealing with Remy and Berst. As they move closer to what would become the consent decree, Erickson said he got the sense Emmert was seeking a solution that avoided the death penalty.

Still, Erickson said, he did not know if agreeing to a package of lesser sanctions was guaranteed to head off the death penalty.

Erickson testified, "(A)s I recall, (Emmert) said there were a couple presidents that he needed, to use the term, 'Talk off the ledge,' who didn't want to hear something like this."

Also that day, Marsh receives an email from Remy with the subject line "one more thing." After previously discussing sanctions, Remy tells Marsh that Penn State would also have to vacate wins from 1998 to 2011.

In his deposition, Marsh testified that after a late afternoon conversation, Remy told him, "We want you to know before we get to the substance that the majority of this group is in favor of cutting off further conversations with Penn State."

According to an email Marsh sent to Penn State's lawyers and president later that night, Remy and Berst maintained that the majority sentiment was to impose the death penalty. Marsh repeatedly went back to the idea to make sure it wasn't being oversold.

"I think they are reporting things accurately," Marsh wrote.

Remy remembered the question in his deposition, and asserted they were conveying that, "The majority of the board is talking about this and the way they're talking about this includes a stop in play."

As Marsh saw it, Penn State could accept the consent decree, try to push for the case to go to the committee on infractions or pursue litigation to challenge the NCAA. The latter options could take years and he couldn't guarantee that the result wouldn't be worse.

After having a conversation with Marsh to make sure that avenue was considered, PSU vice president and general counsel Steve Dunham — whose first day at the university was July 16 — emailed Erickson to convey Marsh's thoughts.

Erickson responded: "Mark Emmert as much as intimated to me earlier today that we would be foolish to go down the (committee on infractions) path, i.e., things will be even worse if you don't take your medicine now. They 'hold all the cards.' We hold none.

"Personally, I don't think I can stand nine months to a year more wrangling before we can get on with fixing things."

In their depositions, Emmert and Remy assert that Penn State always had the option to choose the standard enforcement process or litigation rather than enter into the consent decree. In motions throughout the lawsuit, the NCAA has argued that Penn State was advised by counsel and elected to sign a binding agreement.

"They pursued what they believed at the time, according to my conversations with Erickson and that he was being advised by others, was the best option for the university... That was his choice," Emmert said.

Remy emailed a final draft to Marsh shortly after midnight but noted that it was pending approval by the board, which was to have a teleconference that day.

Ray says the committee held a vote on the call on whether the death penalty should be part of any agreement "and it lost overwhelmingly."

Ray said he could not remember the vote, "but if you told me it was 19 to 2, I would believe you."

He believes he and one other president, South Carolina's Pastides, voted for the suspension of play.

The committee voted unanimously to approve the consent decree, which by that point included a loss of scholarships, four-year postseason ban, $60 million fine to go toward stopping child sex abuse, Penn State vacating 111 wins from 1998 to 2011 and five years of probation. The Division I board of directors voted to support the committee's action.

A draft of notes taken during the executive committee meeting indicated that Emmert requested authority to move forward with the consent decree. It reads, "He noted that, should the university not agree to this resolution, the NCAA would be prepared to take action without consent."

Erickson and Emmert signed the consent decree 11 days after the release of the Freeh Report. The NCAA held a news conference to announce the sanctions, with Emmert and Ray fielding questions.

Asked about the seriousness of the sanctions and whether they were more severe than the death penalty, Ray clarified that any stoppage in play would not be a stand-alone sanction but part of a larger set of penalties and corrective actions.

"I can only tell you that overwhelmingly," Ray said, "the executive committee and the Division I board did not feel that the suspension of play would be appropriate."

Later that day, Berst emailed members of the Conference Commissioners Association to explain how and why the NCAA and Penn State had arrived to that point – also saying that many presidents had favored the death penalty.

Asked about that email in his deposition, Lennon responded, "I recall that some did. I don't know about many."

Contributing: Steve Berkowitz and George Schroeder