Does Penn State Settlement Shield NCAA Officials from Criminal Liability?

[B_Levinson]

http://www.mattmlaw.com/blog/2015/0...caa-officials-from-criminal-liability-1.shtml

I have brought this to the attention of the Attorney General, Governor's Office of General Counsel (certified mail, going out today) and Stacy Parks Miller (e-mail), along with the material in which the NCAA said it was banking on Penn State's "embarrassment" over Sandusky to get Penn State to agree to the sanctions.

 

[pmjoe]

Have we ever actually seen the settlement agreement? I've seen bits and pieces of language, but never the actual document.

Anyhow, as I have noted in the past, the publicly stated language specifically does not say the NCAA "acted" in any kind of good faith - anyone can have an "interest and concern", but that does not equate to the actions taken based on those interests or concerns.

Also the blog article implies the language is "almost a cut-and paste job from the portion of Pennsylvania's theft by extortion statute". Here's a link to the Commonwealth's theft by extortion statute 3923.
http://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=18&div=0&chpt=39

"Defenses.--It is a defense to prosecution based on paragraphs (a)(2), (a)(3) or (a)(4) of this section that the property obtained by threat of accusation, exposure, lawsuit or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstances to which such accusation, exposure, lawsuit or other official action relates, or as compensation for property or lawful services."

I don't see the "cut-and paste job" the blog author suggests. The argument would seemingly have to be that the official action (e.g. the consent decree, under (a)(4)) was honestly claimed as restitution or indemnification for harm done.

The problem with that argument is that there appears to be no rhyme nor reason for the penalties in the consent decree. Emails and testimony seems to back that up. They are clearly not some "honest claim" of restitution for harm done.

 

[LafayetteBear]

How could a settlement in a civil suit shield a party to that settlement from criminal prosecution? I'm a lawyer, but not a litigator, so perhaps there is something I'm missing here. Decisions on whether to initiate a criminal prosecution are always made by government officials (district attorneys in state prosecutions, and U.S. Attorneys in the case of federal prosecutions), or by grand juries. No private citizen or civil litigant makes the decision on whether to prosecute.

That being said, a private citizen whose testimony is crucial to prosecuting a given criminal case might decide to be uncooperative, and could to that extent hinder a criminal prosecution. But even then, I don't think that PSU officials, if subpoenaed to testify in a criminal proceeding involving one or more NCAA officials (assuming that ever took place), could simply refuse to testify by claiming that they had entered into a settlement that included a confidentiality agreement. Pretty sure that would have no effect whatsoever in terms of excusing them from testifying in a criminal prosecution.

 

[B_Levinson]

How could a settlement in a civil suit shield a party to that settlement from criminal prosecution? I'm a lawyer, but not a litigator, so perhaps there is something I'm missing here. Decisions on whether to initiate a criminal prosecution are always made by government officials (district attorneys in state prosecutions, and U.S. Attorneys in the case of federal prosecutions), or by grand juries. No private citizen or civil litigant makes the decision on whether to prosecute.

That being said, a private citizen whose testimony is crucial to prosecuting a given criminal case might decide to be uncooperative, and could to that extent hinder a criminal prosecution. But even then, I don't think that PSU officials, if subpoenaed to testify in a criminal proceeding involving one or more NCAA officials (assuming that ever took place), could simply refuse to testify by claiming that they had entered into a settlement that included a confidentiality agreement. Pretty sure that would have no effect whatsoever in terms of excusing them from testifying in a criminal prosecution.

Re: "No private citizen or civil litigant makes the decision on whether to prosecute." Actually, you can file a private criminal complaint in PA, but that is not something I would do in this situation without legal advice. I did, however, put the information in front of agencies that do have authority to prosecute.