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Could new allegation against Joe Paterno cost Penn State?
2:31 | College Football
Could new allegation against Joe Paterno cost Penn State?
Friday May 6th, 2016

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Did Joe Paterno learn in 1976 that Jerry Sandusky molested children?

An order by Philadelphia Court of Common Pleas Judge Gary Glazer on Thursday contained this damning accusation against Paterno, who coached Penn State from 1966 to 2011. In 2012, a jury found Sandusky, a longtime defensive coordinator for Paterno, guilty on 45 charges of sexually abusing children. 

Judge Glazer is presiding over a lawsuit between Penn State and the Pennsylvania Manufacturers’ Association Insurance Co. (“PMA”) over whether the school or its insurer, PMA, should pay for settlement agreements between Penn State and Sandusky’s victims that total approximately $59.7 million. The key legal issue for purposes of whether Penn State has a right to collect on its insurance policy with PMA is whether Penn State expected or intended the bodily injuries that Sandusky inflicted upon his many victims. In order to assess that issue under the terms of the Penn State-PMA contract, Judge Glazer must consider whether any Penn State officers, trustees or shareholders—a category of Penn State officials that does not include Paterno—knew of Sandusky’s conduct. 

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Report: Joe Paterno was told about Jerry Sandusky sex abuse in 1976

In exploring that topic, Judge Glazer referenced several victims’ depositions, which are sworn testimonies, made out of court, that are recorded and/or transcribed. According to Judge Glazer, those depositions reveal that in 1976, “a child allegedly reported to PSU’s Head Coach Joseph Paterno that he (the child) was sexually molested by Sandusky” and that in 1987 and 1988 an assistant coach witnessed Sandusky committing sexual acts or having inappropriate contact with a child. Judge Glazer reasoned that while Paterno and the unnamed assistant coaches might have known about Sandusky’s acts, available evidence did not indicate that any Penn State officers, trustees or shareholders had such knowledge. As a consequence, Judge Glazer determined that Penn State is eligible to seek certain types of coverage payments from PMA (Judge Glazer also found that Penn State is not eligible for other types of coverage payments).

The topic of insurance coverage and who pays the $59.7 million in settlements is an important topic in its own right. Penn State has insisted that the $59.7 will not be paid through tuition, taxpayer or donation dollars. Instead, Penn State maintains, this sizable figure will be funded through Penn State’s insurance polices, including the university’s policies with PMA.

SI VAULT: Where is Penn State three years after Sandusky scandal?

Despite the importance of Thursday’s ruling as it relates to the funding of victim settlements, Judge Glazer’s order is primarily newsworthy because it contains a previously unknown accusation against Paterno. If this accusation were true, it would contradict Paterno’s assertions that he was unaware of Sandusky’s crimes. Paterno died in 2012 at age 85 and his family has steadfastly maintained his innocence. Wick Sollers, an attorney for the Paterno family, issued a statement tonight to Penn Live that categorically rejects the accusation. 

For at least four reasons, it will likely never be known if the allegation against Paterno is true, false or somewhere in between.

First, it’s unlikely that corroborating or disproving information about the allegation will surface. According to Penn Live, the record containing the deposition transcript is sealed. Also, the victim who made the allegation against Paterno has apparently reached a confidential settlement with Penn State. Odds are this victim will not make his identity known or ever talk about his claim about Paterno. In addition, Paterno’s death obviously makes it impossible for Paterno to rebut the allegation.

Second, it’s unknown how much time elapsed between the victim’s alleged conversation with Paterno in 1976 and the date the victim’s deposition was taken. This is an important point given that memories tend to erode over time and become less reliable. Along those lines, it’s unknown if the victim created any records of his alleged conversation with Paterno, such as personal journal entries or diaries, that would help to corroborate if it occurred and in the manner in which he testified.

Third, it’s unknown how old the victim was when he allegedly spoke with Paterno and what exact words he says he told Paterno. Was the victim sufficiently clear in talking to Paterno that Paterno knew or should have known that Sandusky was molesting the victim? This is where knowing what words were allegedly used becomes important.

• SI VAULT: As Penn State returns to normalcy, will it remember its past?

Fourth, it’s unclear what circumstances would have led to a child directly telling Paterno about sexual abuse or other inappropriate conduct. It might strike a reader as somewhat unusual that a child would have an opportunity to speak directly with a Division I head football coach and about such a sensitive topic. Although such a scenario is by no means unimaginable, it would be interesting to know if others were present while the victim allegedly spoke with Paterno. It would likewise be revealing if the victim’s claim was ever communicated to guardians, teachers or law enforcement or if any police investigation took place.

To be sure, this allegation against Paterno is deeply troubling, especially given that it arose during sworn testimony. At the same time, it is an allegation and has not been proven in court. Judge Glazer’s examination of the allegation was as part of a legal analysis related to insurance coverage and whether any Penn State officers, trustees and shareholders knew about Sandusky’s crimes. Judge Glazer observing that Paterno “apparently neglected to inform” an appropriate supervisor in 1976 certainly raises disturbing questions about Paterno, but it doesn’t prove or refute the underlying assertion against Paterno. In all likelihood, neither proof nor refutation of the assertion will ever be found.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.​

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