The prime topic of media and fan conversation, now that the Freeh Report has become public, has shifted focus from what Joe Paterno knew and when he knew it to speculating about what other problems are in store for Penn State and its football program.  In essence that means the NCAA has the stage front spotlight now and speculation is rampant about what actions and sanctions, if any, will be levied against PSU.

Many people, including a lot of PITT fans, are thinking that Penn State will not play football this season.  Unless PSU self-sanctions its own football program my advice is this, don’t hold your breath for that to happen.

I believe the NCAA won’t do a thing formally until after the criminal trials of Schultz and Curley are completed and all the elements of the Freeh Report are seconded and sworn to in judicial proceedings.  The president of the NCAA, Mark Emmert was interviewed by Tavis Smiley of the Public Broadcasting Service, and he says some interesting things about the future of the NCAA’s investigation without, of course, clearly committing to anything.

However, he alludes to what I believe to be a way ahead for the NCAA whether he meant to or not.  Take a  listen from the 1:20 mark when Emmert states ‘it was a football scandal and more…we’ll have to figure out exactly what penalties there are.’  He said that last part without any qualification of “if any”  which I think is telling.  He does qualify his statements later on but this off the cuff answer opens eyes.

There are two elements to the above; the fact that the NCAA feels it was indeed a “football scandal” and his presumption that penalties are forth coming.  I may be reading into this but if you listen to the whole interview you’ll see that Emmert is way more candid with Smiley than he has been with his past public utterances or the organization’s press releases.

So the question on everyone’s lips is when is the NCAA going to release its findings?

I’ll say it again, don’t hold your breath for that to happen anytime soon.  Why? Because with an issue of this magnitude the NCAA can’t go into the arena without every weapon at its disposal polished and sharpened and right now they don’t have that.  What they have so far, at least publicly, is the Freeh Report, which just isn’t enough.

I think the Freeh Report is very telling and believe every word of it but some people don’t understand what it is and how it was created.  None of those interviewed swore under oath in which where there punishable ramifications for lying; the investigation had no subpoena powers to compel witnesses; it is not a legal document and it will not be admissible, in of itself, in a court of law.

That said, the individual pieces of evidence that were garnered through the 3+ million documents and which were turned over to the District Attorney are admissible. The names of the people interviewed can, and I’m sure will, be turned over to the District Attorney for interviews supporting the prosecution of the PSU principals.

So, as damning as the Freeh Report is it is only a statement of findings from an outside private investigator and is not legal in any way.  There is a lot of connect the dots found in the report and while reasonable people will see those connections that doesn’t make it legal.

Where the bombshells will come from in the near future is the perjury trial of Curley and Schultz and, perhaps more importantly, from the second Centre County Grand Jury which is in convention as we speak. That current Grand Jury will be the judicial body that will make the most of where the Freeh Report points in addition to more and additional charges being levied against Spanier, Schultz, Curley and, had he lived, Paterno.

But the Prosecutors who will deliver those charges will not use the actual findings of the Freeh Report itself as evidence, they will have to find thier own.

As the situation with the NCAA stands right now the NCAA is probably having their lawyers working overtime to decide whether or not to use the Freeh Report as a basis of their decision making. They can do so if they choose because their powers are not legal or judicial. At the very least they will use the report as a starting point or to bolster whatever information they have gathered so far in their own investigation.

I suspect that they will use not only the Freeh Report but the trial(s) state’s evidence and statements made under oath to ground truth their investigation into the PSU scandal.  The Schultz/Curley perjury trial doesn’t even have a date set at this time and the NCAA won’t move until that is concluded at the very least.

Which means PSU will play football this season IMO.

One last thing – as Emmert says, this whole situation is unprecedented and is huge in so many ways, including financial which stakes are much larger than in the 1980s. I wouldn’t be surprised at all if Penn State brings suit if the NCAA drops the Death Penalty hammer.  One can argue that it is poor decisionmaking to do so in light of the negative press PSU has already received and I’ll go along with that.

However, we have already heard inklings that the President and the PSU Board of Trustees will not risk angering the huge and generous alumni base in the wake of this scandal as evidenced regarding the removal of the Paterno statue and the question of playing football for 2012.

The strong and continual outcry we have heard from the PSU faithful so far will be drowned out if PSU can’t play football in September.  If that happens there will be an alumni uprising to demand legal action in my opinion.

(Note: this post is partly based on my experience doing  law enforcement investigations 20+ years ago.  If any lawyers want to clarify points please comment with your thoughts)