Still, in phone calls Tuesday morning, July 17, through late Thursday, July 19, the lawyers pleaded with the NCAA to consider abandoning the death penalty. Marsh, a partner in the law firm of Lightfoot, Franklin & White in Birmingham, Ala., carried a handwritten list of mitigating circumstances he brought up whenever he spoke with Remy and Remy's colleagues:
Penn State had commissioned the Freeh report.
Penn State waived attorney-client privilege, allowing the findings to be made public.
The trustees accepted responsibility for the many shortcomings identified in the report.
Paterno, Spanier, Curley and Schultz were no longer affiliated with the university.
Penn State's football program was not a repeat offender, having never been found guilty of a major NCAA infraction.
Penalties would harm many people who were not responsible: current players, the new coaching staff and, in lost dollars, central Pennsylvania residents.
Penn State would pay enormous financial penalties, to the NCAA, in civil litigation and to the Big Ten.
Penn State was going to implement most, if not all, of the Freeh report's 119 recommendations for reform and would also agree to an athletic integrity agreement with the NCAA.
Emmert and Erickson say they also spoke several times that week about the sanctions. Erickson says he made his case directly with Emmert for the NCAA to avoid the death penalty. As arguments were made, the two also discussed sanctions that included a financial penalty, a lengthy postseason ban, the loss of scholarships and the vacating of victories. "The whole process was very fluid," Marsh says. "People had strong feelings, and no one quite knew how it was going to end."
By late Thursday, back in his home office in Tuscaloosa, Marsh and his fellow lawyers began talking about Penn State's willingness to accept a package of severe sanctions that would not include the death penalty. He felt cautiously optimistic. Then at 6:30 p.m., Marsh's office phone rang, and he was told again that a majority of the university presidents on the board still favored a multiple-year death penalty. After all of Penn State's arguments, he was stunned by the board's continued stance.
"I just thought we were past that," he says. "The idea you'd be driving by an empty stadium with 108,000 seats every Saturday in the fall for four years and no football team playing there
well, to me it was just unthinkable."
The next day, Friday, July 20, while the public focus was on whether Joe Paterno's statue outside Beaver Stadium would be taken down, Erickson met with several trustees in his office. He said nothing about the discussions with the NCAA. In fact, while he had been consulting with Peetz and other trustees on the executive committee, Erickson had never mentioned the threat of penalties to the full board.
Back at NCAA headquarters in Indianapolis, Emmert spoke by phone with Erickson, who listened attentively but also continued pushing his arguments, university officials say. Sometime that Friday, Emmert and his colleagues decided to drop the death penalty and move forward with an agreement between Penn State and the NCAA outlining the package of sanctions. Says one Penn State official, "Erickson would later say, 'Emmert was our friend in this.'"
In an interview, Emmert hints that he helped convince his fellow board members -- the 18 university presidents -- that too many innocent people in and around State College would be hurt by a multiyear death penalty. He acknowledges he'd heard Erickson make the argument more than once that week. "President Erickson has been wonderful throughout this," he says. "He deserves a lot of credit."
Emmert refuses, however, to say that the decision to drop the death penalty, despite its forward momentum, was either his unilateral decision or one he'd lobbied his colleagues to accept. "In the end," Emmert says, "this is best characterized as a group decision. This was a thoughtful and deliberate process."
That afternoon, Marsh was again stunned, this time to learn by phone that the draft of an agreement without the death penalty would be coming by email. Marsh and Erickson say it is hard to know why the death penalty had been removed. But on the Penn State side, there was hardly a sense of victory. The penalties included a $60 million fine, a four-year bowl ban, scholarship losses and the vacating of wins from 1998 through 2011, erasing 111 from Paterno's total that would cause him to fall from first to fifth among FBS coaches. Regarding the insistence on vacated wins, Marsh says, "I guess the idea is conceptually to take away ill-gotten gains." The NCAA, he says, thought decisions to conceal Sandusky's crimes "improved the success" of Paterno's football program.