With the passing of Joe Paterno, there is a lot of debate about his legacy and how he will be remembered?  It is a shame that a historic coach with over 400 victories even has doubts that his main accomplishments were in mentoring athletes, helping them graduate and teaching them to become better people.  Yet, due to a variety of factors (some of his own doing and some outside of his control), Paterno’s reputation will bear a permanent tarnish.  Still, I believe that his accomplishments should not be completely nullified by his mistakes.  Our legacies are a complex interaction of the positive and negative things which have occurred during our life.  I hope that after reading these lessons you can help prevent this type of situation in your life/organization.

• Understand the risks of actions of those underneath you

Among the most underanalyzed areas in all of business are the risks and liabilities created by people who are below the upper management.  Many of these risks are not adequately explained to the employees and often the employees do not receive sufficient training to allow them to truly understand the consequences of their actions (or inactions).  If your organization does not implement a system to train and educate your employees to watch for things beyond the immediate scope of their employment you will suffer severe consequences.  Employees should be taught to question and critique things that are going on because they are your eyes and ears. 

• Deal with initial reports

Many times initial reports are vague and sketchy.  Victims or the individuals reporting the inappropriate activity are fearful, either for their personal safety or for their jobs.  In today’s economy, it is easier to ignore problems that you see than to jeopardize your own well-being.  It is difficult, but your organization needs to implement rewards and confidentiality elements to encourage and protect those that are trying to help you.

• Don’t ignore warning signs

Sometimes things just don’t make sense. Any one incident with one employee can mean nothing (i.e. working late, no vacations, always around).  But often, you actually have multiple people in an organization who are becoming suspicious of the same situation.  However, taken alone, their observations mean nothing.   Without a reasonable reporting system to encourage employees to provide you with this information, you ONLY have a random series of events in the eyes of the observers, instead of the clear pattern which exists when viewed within the sequence of the behaviors.  If something doesn’t add up, move on to a Step 4 without hesitation.

• Conduct thorough investigations

When the initial reports are vague and you have not received corroboration from other witnesses, it can be easy to ignore the allegations.  Often they are written off as a misunderstanding” or something taken out of context.  Do not be so quick to dismiss the claims.  Conduct a proper investigation using resources appropriate to the scale of the issues.  If police need to be involved, this is the appropriate time to do so.  The investigations that are hastily dismissed because people want to get on with their real” jobs are the ones that leave many stones unturned, many witnesses unquestioned and many issues waiting to cause problems at a later date.

• Cut the ties early

If there appear to be problems, severing the ties early can avert significant problems at a later date.  If you look at the Sandusky situation, PSU knew enough to remove him as a coach in 1999. Yet Sandusky was still allowed to remain connected to the program and use the facilities for a long period after that.  PSU’s athletic department continued to provide him access to the student-athletes, the facilities and many other perks of being around the program.  Reports surfaced this week that he was in the President of the University’s box at a football game just weeks before his arrest.  If they found out enough to remove him in 1999, the other elements should have been cut off as well.

• Be accountable in your role

This was a major failing at PSU and a terrific contrast with Syracuse.  At PSU the information and the details lay dormant for over a decade, allowing countless other alleged victims to suffer.  Nobody in PSU stepped up to make sure that the incidents got reported to the police and that a proper investigation was conducted.  The lack of accountability permeated every level of the university, something that ultimately resulted in the layers of problems.  At Syracuse, Chancellor Cantor stepped up quickly and acted decisively.  Perhaps aided by the immediacy of the PSU issues, Syracuse’s swift actions demonstrated its desire to be accountable as an institution, rather than working to protect an individual accused of these crimes (we will examine the double edge sword nature of this a bit later).

• Make those under you accountable in their roles

You can only make other accountable to you if you are accountable to them.  The cliché of respect being earned is one that fits aptly here.  There seemed to be a circular passing of the buck of the responsibility for dealing with the situation.  None of the people felt they had the obligation or the power to take the proper actions.  Whether this was all because of their fear of Joe Paterno or not, someone at the institutional level needed to be asking more questions about what was going on.

• Don’t try to cover up

Cover ups can create more damage than the crime.  We have seen that since Watergate.  If there was not an institutional cover-up going on at PSU it is very difficult to imagine that ALL of the elite leaders of the institution, acting independently, would have agreed to ignore the apparently overwhelming evidence.  In today’s media and technology driven world, things will not stay hidden for very long.  And in fact, the more you deny and try to hide from the truth, the more people will dig and dig until they find out the reality.  If you think that all witnesses and all evidence will remain out of sight you are kidding yourself.  And if you think your identity and details are secure and safe, go watch the TV show Person of Interest” on CBS.  While possibly exaggerated the point should be clear.  NOTHING you do or say is safe.  You have to assume every call is recorded, every email is read and every action you take is videotaped.  And then govern yourself accordingly.

• Do not attack the victims of overly” defend the accused

Nothing enrages the public more than attacking the victim.  Even if it has to be done in the context of an actual criminal trial (a tactic far too detailed and complex to deal with in this space), it should not be done in the media.   It alienates your supporters and makes your organization appear to be insensitive to the alleged victim.  If the victim is lying, you will have plenty of time to make your statements and issue your press releases.  But if you come out like Jim Boeheim attacking the accuser and defending Bernie Fine you will have trouble if the facts do not support you.  The biggest problem is that the people closest to the situation are often far too connected and involved to see the defects.  Remember that cliché about right under your nose.”   The best statement is one indicating that you are going to let the investigation play out, cooperate with the authorities and decide from there.

• PR from inaction typically worse than PR from overreaction

When a story breaks, the public wants to see some action.  Quick statements, calls for investigations, interim suspensions pending investigations and other proactive stances will generate a lot of goodwill on your side.  As we mentioned before, they could have a double edged sword because suspending or terminating someone before a full investigation could lead to institutional liability. Typically though, the lack of action will hurt the institution far more than overreacting since the overreaction can usually be corrected by announcing positive findings in an investigation or issuing a press release exonerating the accused. 

• Take responsibility

Everybody makes mistakes. EVERYBODY.  Nobody who is in a position of leadership has a perfect record.  They have regrets, decisions that could be second guessed, behaviors that they would not want to be made public and issues in their personal life they would not want exposed.  Step up and own the mistake.   Acknowledge the fault.  Accept the responsibility.  Indicate how you have learned from the mistake or what steps you have taken to ensure that it will not happen again. These actions not only reinforce your acceptance of the responsibility, they make you publicly accountable to ensure that it does not occur again.

• Apologize

We live in a VERY forgiving society.  Things will be on the news for a relatively short cycle.  Most of us in our lives do not receive the scrutiny of Joe Paterno, Jim Tressel, Bill Clinton or other high profile sports, entertainment or political figures.  If you apologize for your actions in a sincere fashion, you will earn a lot of respect DESPITE the severity of the mistake.  Had Bill Clinton apologized to the American people for his encounter” with Monica Lewinsky, he would have endured a week or two of ridicule rather than the extended ordeal he went through. Once you apologize, show your contrition and then move on.  Something else will come in the news cycle that will take you off the front page.  Your actions will never go away and you will need to live with yourself and live with the prospect of facing your victims or those you have wronged, but after you have apologized all you can do is move forward and try to regain the respect you have lost.

As Joe Paterno was laid to rest yesterday and has his public memorial today, the question we ask is What do you feel was Joe Paterno’s greatest accomplishment?”  In a perverse way, I feel that this whole scandal may ultimately result in the greatest positive impact on the most people.  It took a person of Paterno’s stature to shed the light on this issue, and he helped” it receive even more attention than other high profile occurrences within the church.  It is only when a man (or woman) of great stature suffers through an incredibly difficult time that the whole world notices.  Had Paterno reported and acted promptly on the Sandusky case in 1998, we would not be having this conversation.  His failure” may end up being the action which creates the greatest social change.  So let us know how you remember Paterno and what you feel his legacy should be.

Here are the stories that we have identified as the biggest stories in 2011 that incorporated elements of Sports Law into their midst.

1. Penn State
2. Ohio State
3. Syracuse
4. NFL CBA
5. NBA CBA
6. Chris Paul trade
7. Sam Hurd drug bust
8. FIFA corruption
9. Concussions
10. Agent regulations
11. Conference realignment
12. ***Explanation for why NO TIM TEBOW

So now if you want the details, you have to follow along below:

1. Penn State

Where do we even start with this process?  The entire conspiracy and cover up at Penn State is beyond belief.   Despite the objections of supporters of the school and supporters of Coach Paterno, there is no feasible way that this situation should not have received much more attention and awareness prior to 2011. 

The incidents were clearly known in 1998 when Sandusky was essentially forced” to take an early retirement.  There is no other explanation for that occurrence.  And yet Sandusky was allowed to continue to have a presence on campus and obviously continue inflicting unspeakable terrors on those young boys.  Even when the incident of 2002 occurred, the university and its administration did virtually nothing.  While everyone chooses to bash Mike McQueary, and while he may deserve some of the wrath and anger, his failures” pale in comparison to those of Spanier, Curley, Schultz and Paterno.  They can choose to classify this situation however they want to, but the reality is that their decisions in 1998 and 2002 allowed at least a dozen more incidents to occur.

Should Mike McQueary have taken greater steps to prevent the 2002 incident.  Perhaps.  But none of us know how we would react despite our instinctual response of saying of course we would have intervened, stopped the incident and called the police immediately.”  When your boss and/or supervisor are doing inappropriate things it is very difficult to even report it up the chain.  McQueary did that.  Much more of the blame belongs to Spanier, Curley, Schultz and Paterno.

And while the media blasts Penn State for the cover up of the activities, you have to wonder where the coverage of the incidents was in 1998 and 2002.  And even more egregious, why was it so late in the year when these incidents came to light.  One of the best reporting jobs in 2011 was by Sara Ganim (@sganim).  Her coverage was there for everyone to see in APRIL!!!  YES APRIL!!! How did the stories she wrote go unnoticed for so long by the mainstream media?  She provided great coverage throughout and was one of the first people with most of the elements of the story as it unfolded.

Where does Penn State go from here?  They were probably wise in laying low in the coaching search until after the bowl season is completed so that it does not become a major distraction for the team.  That strategy also helps keep it out of the limelight of bowl week when college football dominates the landscape.  By the time PSU makes its hire, the college football calendar is essentially over and everything will be dominated by the NFL playoffs and the NFL Draft preparation season (Senior Bowl (and other All-Star games), National Signing Day and the NFL Combine.

Can PSU recover?  Absolutely.  A few people made terrible decisions that allowed this situation to continue way long than necessary.   But the school remains.  Its pride and heritage remain (though tarnished).  With a good hire PSU will be back as a major force in football in just a few years.  So in an absurd turn of events, those fans looking for new leadership and an end to the Paterno era got their wish, though certainly not in the manner they desired.

• Ohio State

If Penn State was the pure evil” in college athletics, Ohio State was the mischievous younger sibling that feels like they can get away with anything.  You heard me rip apart the decision last year to allow all of the OSU players to participate in the Sugar Bowl before starting their suspensions.  It was absurd.  And the degree of absurdity was not really discovered until we had hard facts and evidence showing just how early Jim Tressel knew about the problems.  

Ohio State has frequently acted with the sense of entitlement throughout its program.  The attacks on the Little Sisters of the Poor and the annoying introductions of THE Ohio State University.”   And its athletic department continued to show the same arrogance as it expected the NCAA to roll over and let its weak, self-imposed penalties stand for its actions.

Nobody can compare what happened at OSU to the despicable conduct at PSU, but the great lack of institutional control is one that needed to change.  So now, from this day forward, it will be known as A state of Ohio university.”

• Syracuse

Oy, aren’t we tired of scandals yet?  The long time frame in which Bernie Fine remained in his position is far less surprising than what happened at Penn State because there have been no allegations that Fine used University facilities to accomplish his actions.  There may have been some involvement and connection to the program, but there have not been credible claims to date that anyone else at Syracuse knew what was going on.  The early statements by Jim Boeheim may be the ones that cause the school the most damage.  We still have a long way to go to hear all of the details of this situation so you can expect it to remain at the forefront of the news for 2012.

• NFL CBA

It was only” 136 days, but the impact of the NFL labor dispute received almost round the clock coverage.  From the lockouts to the lawsuits, to the appeals to the procedural manipulations engaged in by both parties it was an interesting battle.  But it was also a battle that could not be won by either side without a negotiated resolution.  All parties were poised to lose too much money.  While the grandstanding and media ploys of each side played out, the public grew increasingly agitated with BOTH sides.  Support was sharply divided and there were many good arguments made by both the NFL and the NFLPA.   Players sacrificing their bodies for short careers and long term damage and owners who have invested billions of dollars in team ownership, operations and infrastructure.  Despite the legal maneuvers of each party, you could tell that each side was entrenched in its core beliefs and until they were both threatened with losing real dollars, neither would budge.  Ultimately Robert Kraft probably saved the day and essentially went in like a business person, took some of the control away from the lawyers, and helped pushed through an agreement that appears to be more positively constructed for the long term than the prior deal that was opted out of by the owners.  Labor peace for 10 years.  Now if only they would allow cable systems and smart phones to get the Sunday Ticket without needing to be a DirecTV subscriber we would all be set.

• NBA CBA

The NBA lockout received FAR less attention from the media than the NFL lockout did.  In part there was much more going on in the sports landscape with MLB post-season, college and NFL football underway and the NHL continuing to grow in popularity.  As with most labor disputes, nothing seems to get done proactively.  It typically takes significant losses or collateral damage before the parties are willing to give concessions over the last few points of contention.  For the NBA, this amounted to the split of the revenues.  So with the season pushed back and the Chris Paul fiasco over (see below), the NBA appears poised for a strong season with interest heightened by the fact that there will be a condensed schedule which will make each game more meaningful in the playoff race.

• Chris Paul trade

Can you say conflict of interest?”  I knew that you could.  But apparently it is a concept that the NBA is not clear about.  High on everyone’s list of problems in the NBA is the fact that no league should own a team.  Who is the league really representing?  The existing franchise?  The fans?  The future owner?  The value of the franchise?  The current community in which the team exists?  Depending on how you answer those questions you will see that there is an enormously large discrepancy in what actions need to be taken and the prioritization of those actions.  Voiding the Chris Paul trade was something that the league did purportedly to protect the value of the franchise.  Was it Dan Gilbert’s public admonishment? Was it prospective owners getting unhappy? The reality is that Chris Paul was going to be leaving at the end of the season regardless of anything that the league did.  So the question begging to be asked is Was it better for the franchise to get something in return instead of nothing after the season.”  There is obviously no right or wrong answer to that question, it is one that each owner (or ownership group) has to answer for itself.  Putting the league in the position of deciding what media market to send one of its biggest starts to smacks of self-dealing.

• Sam Hurd drug bust

How scared are any NFL players that were getting their drugs from Sam Hurd?  Hurd was not merely dealing a small quantity of drugs to a few close friends and/or acquaintances, he was preparing to establish and operate a drug empire of the scale that has never been seen within professional sports, especially by an active player.  Nate Newton’s infamous arrest with enormous amounts of marijuana occurred after his playing days were over.

If you did not follow the details closely, go back and read through the links in this posting which outline the magnitude of the drugs Hurd was seeking to purchase.  There is little doubt that he was supplying to other NFL players but those merely buying and using the drugs will not face great punishment.  The question is whether any other NFL players were working with Hurd or working under Hurd to establish their own distribution schemes.

• FIFA corruption

One thing that you have to give FIFA credit for is doing something that no other organization has ever been able to accomplish—Making Chicago politics look clean and efficient.

Has there ever been a more corrupt organization from top to bottom?  The only question that remains about FIFA is whether it should even exist.   It certainly has an important role in world soccer and there is undoubtedly the need to have an organization to provide the function. 

But if you analyze what FIFA has done and how it has done it, you are likely to reach the conclusion that the entire organization is TOO broken to be fixed.  At a certain point if you have a money pit of a building you are better off knocking the whole thing down and building from scratch.  Is there really any way to salvage FIFA from a structure that has layers of corruption built upon other layers of corruption which are obscuring more corruption which is undetectable from the surface because you cannot get past the first 3 layers of corruption.

Go and look at the number of high ranking FIFA officials brought into question.  Look at the voting process involved in awarding the 2018 and 2022 World Cups.  Look at the way in which any of these things came about.  I dare you to find any shreds of integrity.

• Concussions

How many concussion lawsuits have we seen?  The number rises every single week.  By some accounts, the number of suits filed against the various entities is already in double digits. Every player (and many of their lawyers) are trying to get their piece of the concussion lawsuit pie just like the large class action firms try to sign up Plaintiff’s in the mass tort litigation space.

The sad part is that we seem to be having a fundamental failure in the approach to concussions. Virtually all of the time and energy is spent on just 2 of the 3 elements:

• Preventing concussions
• Diagnosis
• Treatment and Recovery.

The third element is virtually ignored.  The only recovery anyone talks about is how quickly can we get someone back on the field/court/ice.  But the long term impacts have been almost entirely ignored and there are very few groups working to develop a process that can allow athletes and former athletes to overcome some of the effects of concussions.

1. Agent regulations

Do I have to repeat myself year after year?  You can read my article from the preview for 2011 and you will see that the core issues have not changed.  Is anything going to be done? Soon? 

Earlier this year I made a plea for National Regulations.  Not on top of the other regulations, but instead.

The timing seems right and I would have been more optimistic about where this was going before all of the sexual abuse scandals broke.  Deservedly they have received more of the attention and the powers that be are scrambling to find ways to not only prevent it from happening in the future but figuring out how to handle the next inevitable scandal that breaks, hopefully not from their institution or organization.

1. Conference realignment

Are we done? Doubtful.  Have we reached the saturation point?  Maybe.  When all heck seemed ready to break loose and turn into four 16 team power conferences, the process got bogged down in TV deals, rivalries and often a desire of certain key players (Texas and Oklahoma) to stay together and try to keep their power spots.  Would UT and OU have the same clout if they joined the Pac 12, SEC or Big Ten? Nope.  And therefore the Longhorn Network was born.  But with Boise going out to the Big East and with TCU going east, then not going or were they going?  Can you really keep track of where everyone is these days?  Just a few short years ago any college football fan could easily tell you what conference the Top 100 schools were in.  Today, that is a far more challenging task.  

1. NO Tim Tebow???

Before I get bashed by all of the Tim Tebow supporters out there, remember this is supposed to be a sports law blog not a cult icon blog.  While Tebow has transcended the game in an amazing way for a QB who has so few on the field accomplishments in the NFL, he has fortunately not been involved in legal issues.  Plenty of dilemmas as he went from 2^nd string at the start of training camp to a reported 4^th string to a starter when Kyle Orton was not getting the job done to the satisfaction of the Denver fans. 

Is Tim Tebow the answer?  Long term?  Does not look like he is ready to be a quality PASSER in the NFL.  Does that mean he cannot play QB?  No.  Tebow is undoubtedly one of the greatest leaders that we have ever seen, especially from a person whose skill set is questioned around the country on a minute by minute basis. 

Was Tebow played by the Broncos merely with the hope that he failed so that they could say See, we gave him the chance and he did not get the job done.”  We will never know because Tebow never let himself fail.  His win streak had an almost divine intervention like quality with recovered onsides kicks, runners going out of bounds to keep Denver in the game, his kicker hitting 50+ yard FGs like they are XPs and a slew of turnovers and outstanding play generated from his defense.