Tim Curley's Choice: Sell Out Joe Paterno And Penn State Football?

STATE COLLEGE, PA - FILE: Head coach Joe Paterno talks with the media following their 27-11 loss to the Alabama Crimson Tide at Beaver Stadium on September 10, 2011 in State College, Pennsylvania. According to a statement on November 18, 2011, Joe Paterno has a treatable form of lung cancer. (Photo by Rob Carr/Getty Images)

Joe Paterno can't defend himself in court. So might his former associates, who are facing perjury charges for failing to stop Jerry Sandusky from abusing children, dare to use that against him?

Leaked information from Louis Freeh's commission charged with investigating Penn State indicates that athletic director Tim Curley, former president Graham Spanier and former VP of Finance and Business Gary Schultz were leaning toward reporting Jerry Sandusky to the authorities in 2001, but that after Curley's meeting with Joe Paterno they decided to handle it internally. I'm loath to speculate as to what exactly the Freeh Commission will ultimately say, but Curley's recollection of his conversation with Paterno in 2001 and any subsequent conversations they might have had will be crucial in apportioning blame in the cases.

Curley's conversation with Paterno is important because whoever was in charge of covering up Jerry Sandusky's repeated sexual abuse of boys violated the Pennsylvania "failure to report" law. The Pennsylvania law requires individuals who know of abuse to "notify the person in charge of the institution, school, facility or agency or the person in charge's designee of suspected abuse." Notably, Curley and Schultz will not face charges for the 2001 incident because it falls outside the 10-year statute of limitations, but the Freeh Commission could find that they failed to report abuse within the past ten years and, as you will see below, the 2001 incident will come into play in civil cases (where the statute of limitations is until a victim turns 30).

And if there is a failure to report case from the past ten years, Curley, Schultz and Spanier could argue that, despite what the Penn State org chart may say, Joe Paterno was the man in charge of the institution and that he demanded a cover up. The fact that Paterno was able to override his own firing certainly backs up the assertion that he was the one in charge at Penn State. The law apportions criminal liability so that the person in charge is solely responsible, so many billable hours will be spent determining who was calling the shots. And Tim Curley's conversation with Paterno will be key to answering that question.

The always excellent Dan Wetzel asked whether Tim Curley would fall on his sword for Paterno. Wetzel doesn't really go into the factors that will play into Curley's decision though. So allow me to play the role of Curley's steel-eyed, lantern-jawed lawyer (who already told him not to speak to the Freeh Commission because of his Fifth Amendment right against self-incrimination), and explain why he should blame everything on Paterno. And I'll also go into what might prevent him from doing so.

The Pennsylvania failure to report statute could shield Curley from significant civil liability. Curley's perjury charges are a separate matter, but I already outlined how he can avoid potential failure to report charges. All he needs to show is that Paterno was calling the shots. But what Curley is probably worried about most is the civil lawsuits against Penn State, which could end up costing him a lot of money. In case you're wondering how much each Sandusky victim will get, this list of settlements with Catholic Church sexual abuse victims is a good guidepost; upwards of $3.45 million for each plaintiff.

In sexual abuse civil suits, plaintiffs have to show that defendants failed to exercise a reasonable amount of care, which lawyers call "negligence." If Curley is not guilty under Pennsylvania law, he could argue that he exercised a reasonable amount of care because he complied with the failure to report law, which lawyers call a statutory defense to negligence.

For example, if you sue me for hitting you with my car, I can use as a defense that I was driving slower than the speed limit. Because I obeyed the law against going above a certain speed my duty to drive safely was met and that I was not negligent. Similarly, Curley could use as a defense in a civil suit that he was obeying the Pennsylvania law, which clearly states that the person in charge is legally responsible.


SI.com: Please Stay Out Of This, NCAA

Now, in my hypothetical there are other factors that could come into play in your lawsuit. If I were lighting a cigarette or texting the newly single Katie Holmes (call me, Joey!) while driving then I could still be negligent even if I were not violating a statute. But in Curley's case his failure to report is central to an assertion that he acted negligently. If Curley performed his duties as required under criminal law, then a plaintiff's attorney would have to make more novel arguments that he did not provide a reasonable standard of care.

As stated earlier, the Freeh Commission might detail other instances where Curley could have acted but did not, but each time he could say that he was obeying Paterno's orders in not reporting instances of abuse. And it will be easy for Curley to make those arguments because:

Joe Paterno can't defend himself. As Wetzel noted, Joe Paterno won't get to present his side of the story and Curley can say he was the man responsible for the cover-up. Barring an otherwise revelation in the Freeh Report, Curley will be the only person who can testify as to what happened at his 2001 meeting with Paterno. And I don't think Paterno (who didn't use e-mail) would actually make a record of himself ordering a cover-up; the only person crazy enough to do that was Richard Nixon.

Unless there's a record of Paterno telling someone to report Sandusky and they failed to do so, Curley can say pretty much whatever he wants about Paterno's involvement in the Sandusky cover up. Spanier and Schultz too if they had conversations with the coach. As I outlined above, any time they were accused of covering something up, they could say that the orders to do so came from Paterno. And they all have reason to sell him out. Why?

Plaintiffs will sue everyone remotely involved in the Sandusky cover up. Here's a short list of people or entities that any Sandusky victim's lawyer should sue lest he or she be found guilty of legal malpractice: Jerry Sandusky, Joe Paterno, Tim Curley, Gary Schultz, Graham Spanier, Mike McQueary, former assistant coach Tom Bradley, former directors and officers of the Second Mile (no word on if Matt Millen's lawyer is a wide receiver), Pennsylvania State University ($1.8 billion endowment, ch-ching!) and the Commonwealth of Pennsylvania. Plaintiffs attorneys like naming a lot of different defendants because some of those defendants may turn on each other; it's kind of like going after the Mafia. Every one of the individuals on that list had some reason to expect Sandusky was raping boys; plaintiff lawyers will sue them all and let their defense lawyers sort them out.

Thus, I could foresee a scenario where every Penn State defendant argues that he was following Joe Paterno's orders for any instance in which he is accused of failure to report abuse. Spanier, Schultz and Curley could blame Joe Paterno, who cannot defend himself, and use the state law as a liability defense in their civil cases. By the way, I'm not entirely sure that this defense would work, and Pennsylvania's failure to report case law is pretty undeveloped. So if any of you bored law students with a free LexisNexis password want to dig a little deeper on this defense, feel free to let me know in the comments.

Nevertheless, Curley has every legal reason to turn on Paterno. So why wouldn't he? Well, I don't think he'd be like the protagonist in Big Fan, where a sad-sack Giants fan refuses to sue a star linebacker who assaulted him because of his allegiance to the team. The sad-sack has little else going for him outside of the Giants; he's a parking lot attendant who lives with his mom. But Curley has lung cancer treatment bills to pay and a family to take care of. He's also probably acquired quite the nest egg after 18 years as athletic director, and he prefers the Penn State endowment or estate of Joe Paterno pay the Sandusky victims instead of him. I'm not sure if fandom alone is enough to get Curley to take the fall, even if he did grow up across the street from the stadium.

No, the only reason I think Tim Curley would fall on his sword is if someone promises to take care of him. If Curley throws Joe Paterno under the bus, he throws Penn State under the bus -- and he throws the primacy of Nittany Lions football under the bus. Everyone who has been to a college with varsity athletics knows that athletes and the top programs are afforded more leeway than non-jocks. Gordon Gee admitted as much when he said that he hoped Jim Tressel wouldn't fire him. But the Sandusky victim civil lawsuits could have the same effect on Penn State that similar cases have had on the Catholic Church. The church has lost prestige, followers (down 5 percent in the U.S. since abuse scandals began around 2000, even as Latino population has grown) and money (eight dioceses have declared bankruptcy).

Penn State football doesn't want to lose prestige, followers and money. It needs to show that, unlike the church, its failures weren't systemic and were contained to a few individuals. But if the football program is found central to an abuse cover-up, it will face pressure to reform. And unlike the Catholic Church, which only has to answer to the pope, Penn State has to answer to the state and its voters whose taxes fund the school.

The state legislature and governor, who have clashed with the school before, could face pressure to implement external oversight of the football program to prevent another coach from amassing power similar to Paterno's, and that oversight would probably make Penn State a less attractive place for coaches to coach and players to play. It's the equivalent of unilateral disarmament.

And that's where the boosters come in. They'd rather not take their chances in front of the legislature, where only three of the 203 members of the State House represent Centre County, home of Penn State. The boosters could instead offer Curley incentives (a legal defense fund, cushy jobs for his kids, etc.) to take the blame. If Curley maintains that he was the one who ordered the cover-up, then the football program would not be implicated and can continue to operate from a position of relative power.

Further, State College, where Curley has spent most of his life, is a small town. If Curley becomes the man who takes down the Nittany Lions, it would be easy to make him a pariah. His family too. I don't know if his children still live in State College, but I imagine his wife wouldn't like to be kicked out of the bridge club. And they might have to start over somewhere new, a second chance state like Florida or Arizona perhaps. Ever watch the end of Goodfellas? Curley would have to live the rest of his life like a schnook.

So, Tim, what are you going to do?

For more on Nittany Lions football, visit Penn State blog Black Shoe Diaries, plus Big Ten blog Off Tackle Empire, SB Nation Pittsburgh and SB Nation Philly.

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