Story by Dan Van Natta, ESPN
Three other trustees joined the appeal, which states that the consent decree university president Rodney Erickson signed with the NCAA agreeing to the sanctions is “null and void” because Erickson “lacked the legal authority” to enter into such an agreement without the board’s approval.
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.
ESPN The Magazine: On death’s door
The appeal, sent to the NCAA from attorneys hired by Ryan J. McCombie, a retired Navy SEAL who joined the 32-member board in June, also challenges the NCAA on the following fronts:
• The NCAA did not give Penn State trustees and the university due process when it did not follow its usual investigation and enforcement procedures.
• The consent decree is fundamentally unfair because it relies on the Freeh report, which “contains findings and conclusions not that are contrary to the evidence presented …”
• The sanctions are “excessive and unreasonable” because they inflict “permanent damage to an entire generation of student-athletes and coaches who were innocent of any wrongdoing during their time on campus …”
Erickson signed the consent decree late last month with the NCAA after consulting with board chairwoman Karen Peetz and university counsel, but he did not bring the decree to the full board for review or a vote.
The package of sanctions included a $60 million fine, a four-year bowl ban, scholarship losses and the vacating of wins from 1998 through 2011.
McCombie hired Boston attorneys Paul Kelly and Gregg Clifton of Jackson Lewis to file the appeal and wrote a letter to trustees Monday afternoon asking them to join him in his effort. Three trustees nearly immediately joined him. Kelly declined to comment, and McCombie did not return a message seeking comment.
McCombie, one of three new trustees elected by alumni to the board, was one of the most outspoken trustees at a July 25 board session about Erickson not consulting a majority of trustees before signing the consent decree, trustees said.
After that three-hour session in State College, the board issued a statement saying it was standing by Erickson’s decision to sign the consent decree. ESPN The Magazine reported last week the university was facing a four-year death penalty if Erickson had not signed the decree, and that the NCAA had warned Penn State that if there were a leak about proposed sanctions to the media, the discussions would end and the death penalty would be all but certain.
In his letter to trustees Monday, McCombie wrote: “It is my belief that this matter did require board approval and that we should engage in a full, and complete, review. In the end, we all benefit from having this matter handled correctly and with full regard for due process — only then can we be truly confident in the result and the actions we take as a board.
“Furthermore, only after we have given all involved the opportunity to be heard can we move forward together as one university.”
Penn State spokesman David La Torre declined comment. NCAA spokesman Bob Williams said the Penn State sanctions are not subject to appeal.
Last week, attorneys for the family of former coach Joe Paterno requested the NCAA hold an “open hearing” before its Infractions Appeals Committee of the package of sanctions accepted by Penn State. The NCAA quickly rejected their request.
“The Penn State sanctions are not subject to appeal,” Williams said last week.
McCombie closed his letter by writing: “I know my actions will be poorly received by some on this board and in the community at large. To that end it would be easier to remain silent and allow these unfair actions to remain unchallenged. I cannot do this.”
Much of the McCombie appeal takes aim at the Freeh report, an investigation commissioned by the board of trustees last November after the Sandusky sex-abuse charges became known. The board hired former FBI director Louis B. Freeh for $6.5 million to investigate the university’s role in the sex abuse scandal.
Freeh’s report contains damning allegations against university employees and trustees, concluding that the board did not perform its oversight duties. The NCAA relied on the Freeh report to determine what sanctions should be handed down to Penn State