JURIST Guest Columnist Kathryn Young, University of Virginia School of Law Class of 2013, analyzes the uses, reliability and legality of independent reports in light of their increased uses in collegiate sports…

When sports scandals break, a common tool used by universities is the “independent report.” To understand how these reports function, two recent examples can be illustrative: the Freeh report and the Martin report.

The Freeh report [PDF] was commissioned by Pennsylvania State University (“Penn State”) after the Jerry Sandusky child abuse allegations. Former FBI Director Louis Freeh and his law firm compiled the report with the help of a special investigative counsel. Freeh investigated four Penn State administrators: University President Graham Spanier, Athletic Director Timothy Curley, late Head Football Coach Joseph Paterno and Senior Vice-President Gary Shultz. The report’s goal was to determine what knowledge these individuals had of the alleged child abuse and what steps they took to prevent future abuse.

The report concluded:

The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims … These men concealed Sandusky’s activities from the Board of Trustees, the University community and authorities.

The report cited emails between the leaders regarding these allegations and their continued acceptance of Sandusky as a Penn State figure, including his use of university facilities. The latter charge is important because multiple victims alleged that their assaults occurred in the locker room showers on campus. Criminal charges resulted out of this conduct. The school also received strict sanctions from the National Collegiate Athletic Administration (NCAA). Public backlash occurred almost immediately against both the University and the individuals involved, particularly the previously-respected Paterno. The whole scandal cost Penn State $41 million, including the $8.1 million that generating the Freeh report cost.

The Martin report [PDF] was commissioned by the University of North Carolina after questions were raised about the integrity of certain classes. Some courses in the African American studies department (AFAM) were “no-show” classes, because they did not require attendance or had unauthorized grade changes. The school was concerned because of previous athletic scandals, and wanted to ensure that these AFAM classes did not contain disproportionate amounts of athletes. Former North Carolina Governor Jim Martin and consulting firm Baker Tilly compiled the report. The report concluded that the problems were isolated within the AFAM department, and specifically in the unethical behavior of two administrators. The report cost the University of North Carolina at Chapel Hill Foundation $490,000.

What Makes These Reports Independent?

The report investigators in both of these cases stress their independence. For the Freeh report, this meant that — although the school sponsored the report — none of the Special Investigative Council (SIC) members either attended or had a professional relationship with Penn State and that the SIC consisted of diverse members with extensive investigative backgrounds. It also stressed that “no one is above scrutiny…[the SIC had] complete rein to follow any lead, to look into every corner of the University to get to the bottom of what happened.”

The Martin report contained similar language, stating that the review team worked “independently from University leadership and staff but with their full cooperation.” It explained, “we did not accept any evidence or viewpoints at face value and performed procedures to corroborate the accounts given and assess the completeness of the information provided.”

Who Uses These Reports?

Once these reports are public, there are a number of bodies that may use the information provided in the report. Since the Sandusky allegations had many affected parties, the Freeh report was widely used as proof of the Penn State administrators’ liability. Most notably, the NCAA cited the report in support of the extensive sanctions the organization levied on the University.

In court, the obvious cases have cited the report: the civil cases on behalf of Sandusky’s victims raised against Sandusky and Penn State; the case of Pennsylvania v. NCAA, in which both sides cite the report in their motions; and the Pennsylvania Manufacturer’s Association Insurance Company’s motion in support of their refusal to fund Penn State’s Sandusky-related expenses.

There are more surprising cases that cite the report as well. In Mann v. National Review [PDF], a meteorologist cites the report in a defamation case. Michael Mann alleges that climate change detractors used the report as an excuse to impugn Mann’s name further, “evidently on the theory that a different investigative panel of the university had cleared Dr. Mann of misconduct.” In Ochoa v. Rubin, the writ for certiorari claims the pattern of cover up in that case mirrors the Penn State cover up, and uses the Freeh report to prove as much.

The Freeh report prompted discussion on related topics, including child abuse law changes, athletic departments sexual harassment policies and wrongful obedience in employment contexts.

The Martin report was less frequently utilized in other areas, particularly because it found no athletic-specific violations. The school announced that it sent the report to the NCAA, but no further sanctions were imposed by that organization.

How Reliable Are These Reports?

Both the Martin and the Freeh reports have been the subject of public allegations of untruthfulness. The Paterno family, in response to the Freeh report, most notably compiled their own report with the help of former Attorney General Dick Thornburgh. Thornburgh commented on the Freeh report: “The experts determined that the conclusions of the (university) report are based on raw speculation and unsupported opinion — not facts and evidence.” Freeh, in response, criticized the self-serving nature of the Paterno family’s analysis.

The Martin report mainly received criticism from local news media, in addition to a few faculty members. The Raleigh News & Observer published numerous pieces questioning the report. These were published as recently as March 12, 2013, in an editorial titled “UNC-CH paid heavily to review and spin the scandal.” Martin was vigilant in responding to critics on an individual basis, attempting to debunk incorrect interpretations. No official counter-report was conducted.

Whether or not these reports are more accurate than their detractors, there are a certain number of considerations in determining a report’s reliability, including methodology, bias and uncooperative witnesses.

While these reports are aimed to be independent, it is possible that some bias still remains. Some investigators may try to increase their own fame by finding notable results, or may be biased toward another involved party, if not the school. It is important to consider all possibilities before choosing an independent reporter.

A school may also want to review the independent report’s methodology to ensure a wide scope. To avoid criticism, schools should ensure they are revealing and encouraging the review of all pertinent documents. The Freeh report used “over 430 interviews of key University personnel and other knowledgeable individuals…[and] over 3.5 million pieces of pertinent electronic data and documents.” They also set up a hotline and an email address for any individuals to share relevant information, and cooperated with law enforcement and government agencies. The Martin report had a similar methodology, but focused on meeting minutes to determine at what depth the issue of the AFAM classes was discussed.

Finally, there may be uncooperative witnesses. Although schools and investigators cannot do much on this front, it is an important aspect to consider. Many times, key witnesses may be unwilling to speak, probably due to a lawyer’s advice. As long as the investigators are aware of this possibility and notify the report’s readers, they should not receive excessive criticism on this front.

What Are Other Legal Issues Surrounding Independent Reports?

Schools and investigators should be aware of three further potential liabilities regarding independent reports. They should watch out that they do no not violate attorney-client privilege, employee privacy or confidentiality or leave the investigator open to legal malpractice.

These independent reports are sure to be a permanent fixture in the sports compliance world. With schools and the NCAA lacking the necessary resources and impartiality, independent investigations will be necessary in many potential rule violations. With these keys in mind, hopefully they will be successful at detecting, punishing, and deterring future rule breakers.

Kathryn Young is a Programs Editor for the Virginia Sports and Entertainment Law Journal and is President of the Sports Law Society. She completed her undergraduate studies in Political Science and History at the University of North Carolina Chapel Hill.

Suggested citation: Kathryn Young, An Analysis on Independent Reports: Uses, Reliability and Legality, JURIST – Dateline, Apr. 8, 2013, http://jurist.org/dateline/2013/04/kathryn-young-independent-reports.php