Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

David Berst
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
JAKE CORMAN, in his official

capacity as Senator from the
34th Senatorial District of
Pennsylvania and Chair of the
Senate Committee on
Appropriations; and ROBERT M.
McCORD, in his official
capacity as Treasurer of the
Commonwealth of Pennsylvania,
Plaintiffs,
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vs.
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NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION,
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Defendant,
vs.
PENNSYLVANIA STATE UNIVERSITY,
Defendant.
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Case No.
1 M.D. 2013
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DEPOSITION OF DAVID BERST

Indianapolis, Indiana
Wednesday, November 12, 2014
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Reported by:
RACHEL F. GARD, CSR, RPR, CLR, CRR
JOB NO. 86746
TSG Reporting - Worldwide
877-702-9580
09:08
David Berst
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November 12, 2014

9:05 a.m.
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Deposition of DAVID BERST, at the offices

of Barnes & Thornburg, 11 South Meridian
Street, Suite 200, Indianapolis, Indiana,
pursuant to subpoena before Rachel F. Gard,
Illinois Certified Shorthand Reporter,
Registered Professional Reporter, Certified
LiveNote Reporter, Certified Realtime Reporter,
Indiana Notary Public.
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A P P E A R A N C E S:
CONRAD O'BRIEN
Attorneys for Plaintiffs
1500 Market Street
Philadelphia, Pennsylvania 19102
BY: MARK SEIBERLING, ESQ.
MATTHEW HAVERSTICK, ESQ.
ALEXIS MADDEN, ESQ.
LATSHA DAVIS & McKENNA

Attorneys for Plaintiffs
350 Eagleview Boulevard
Exton, Pennsylvania 19341
BY: KEVIN McKENNA, ESQ.
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LATHAM & WATKINS

Attorneys for Defendant NCAA
555 Eleventh Street, N.W.
Washington, DC 20004
BY: ALLEN GARDNER, ESQ.
BRIAN KOWALSKI, ESQ.
SARAH GRAGERT, ESQ.
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THE LAW FIRM OF KILLIAN & GEPHART

Attorneys for Defendant NCAA
218 Pine Street
Harrisburg, Pennsylvania 17108
BY: ROBERT DANIELS, ESQ.
REED SMITH
Attorneys for Defendant Pennsylvania State
University
Reed Smith Centre
225 Fifth Avenue
Pittsburgh, Pennsylvania 15222
BY: DONNA DOBLICK, ESQ.
ALSO PRESENT: SCOTT BEARBY, NCAA

ZANDRIA CONYERS, NCAA
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2 (Pages 2 to 5)
877-702-9580
David Berst
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INDEX
WITNESS
PAGE
DAVID BERST
Examination by Mr. Haverstick
EXHIBITS
BERST DEPOSITION EXHIBIT
Exhibit 1 Division I manual for
2011/'12
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EXHIBITS
BERST DEPOSITION EXHIBIT
Exhibit 17 Telephone meeting invite
Exhibit 18 Email
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Exhibit 19 Draft executive committee
notes dated July 21, 2012
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Exhibit 3 Email
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Exhibit 4 Email
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Exhibit 5 Email
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Exhibit 6 Appointment invite
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Exhibit 7 Calendar invite
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Exhibit 8 Appointment invite
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Exhibit 9 Telephone call invite
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Exhibit 12 Email
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Exhibit 13 Email
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Exhibit 14 Email
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Exhibit 15 Email
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Exhibit 16 Email
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Exhibit 20 Draft executive committee

notes dated July 21, 2012
Exhibit 21 Email
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Exhibit 22 Email
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Exhibit 23 Email
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Exhibit 24 Email
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Exhibit 25 Email
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Exhibit 2 Email
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(Witness sworn.)
08:34
09:05
Q. Good morning, Mr. Berst. My name is 09:05
Matt Haverstick, and I represent Senator Jake
09:05
Corman, State Senator from Pennsylvania. And I 09:05
think you met them already, but I have my
09:05
colleagues, Alexis Madden and Mark Seiberling
09:05
is at the very end and Kevin McKenna is also
09:05
with us.
09:06
So I gather you've been deposed
09:06
before?
09:06
A. Yes.
09:06
Q. And testified before?
09:06
A. Yes.
09:06
Q. I'm not going to bother with all the 09:06
preliminaries. I think you know all of that
09:06
stuff.
09:06
I'm -- go ahead.
09:06
A. Well, yes, I'll bother with a little 09:06
preliminary.
09:06
Q. Please, do.
09:06
A. I just want to ensure that there are 09:06
notes available from you overnight or however
09:06
quickly that is done because I want access to
09:06
them as well.
09:06
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Q. To the -09:06
A. Deposition.
09:06
Q. Yeah, sure. That's up to you and
09:06
your counsel. Sure, you, I'm sure, will get an
09:06
opportunity to look at whatever is recorded by
09:06
the recorder today.
09:06
A. Yeah, I may well use it myself.
09:06
Q. Okay. So you know the drill. I'll
09:06
be asking questions as we go out, go along
09:06
through today. Actually, it's rare that I get
09:07
to talk to someone as interesting as you, and I
09:07
don't mean that as false flattery. I think
09:07
this will be an interesting conversation. And
09:07
some of my questions will be more sterile, and
09:07
they will be readily discernible where I'm
09:07
driving or what I'm asking for. And others are
09:07
more conversational and maybe more
09:07
philosophical. And I hope we can have a
09:07
conversation because that's sort of how I look
09:07
at what we're going to do today, for the most
09:07
part.
09:07
Is that okay with you?
09:07
A. That would be wonderful.
09:07
Q. From time to time, I'll show you
09:07
documents. We'll sort of play that as it lays,
09:07
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I think, but if you need to take a look at a

09:07
document for a couple minutes when I show
09:07
you -- in fact, if you need to take a break
09:07
whenever, just let me know and we can go do
09:07
that.
09:07
One issue that we've been running
09:07
into, and I'm just going to flag it for you and 09:08
put it on the table so we don't get confused
09:08
about it later on.
09:08
There's going to be questions where
09:08
Donald Remy is going to come up and your
09:08
counsel, quite correctly, is going to tell you,
09:08
if I'm asking about a conversation between you
09:08
and Donald Remy in which you and Donald are
09:08
conversing for the purpose of Donald giving you 09:08
legal advice, that's something that your
09:08
counsel is going to tell you not to answer.
09:08
And that's fair. That's fair.
09:08
I'd ask if you're having a
09:08
conversation with Donald or there's one
09:08
reflected in an email and you can tell me
09:08
honestly from your memory, you know, I wasn't
09:08
talking to Donald to get legal advice, we were
09:08
doing it for some other reason, my view is that 09:08
is fair game. But I'm saying it now so that
09:08
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you -- again, so we don't have to hit it every

09:08
single time we hit with a Donald Remy question
09:08
and that you're sensitized to it. So you can
09:08
stop and pause or talk to your counsel if you
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need to think, wait a minute, is this one where 09:09
I was talking to Donald for legal advice, or is
09:09
this for something else. Okay?
09:09
MR. KOWALSKI: I just add to that,
09:09
there may be instances where we have an
09:09
understanding from the association's
09:09
perspective or from Mr. Remy's perspective 09:09
what the purpose of certain communications 09:09
were, and so we do ask you to be very
09:09
careful about revealing the contents of any 09:09
communications with Donald Remy before we
09:09
have an opportunity to fully evaluate
09:09
whether they may be privileged.
09:09
A. I think my involvement is narrow
09:09
enough that I should be able to work my way
09:09
through that.
09:09
Q. Okay. Good.
09:09
Why don't we start where these
09:09
always start. Tell me a little bit about
09:09
yourself and your background.
09:09
A. I am probably, I guess, the most
09:09
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senior staff member on the NCAA staff. I

09:09
started in 1972 after a brief period of time
09:09
where I was an assistant basketball/head
09:09
baseball coach at McMurray College. I started
09:10
as a field investigator. Became director of
09:10
enforcement. Subsequently head of the
09:10
enforcement program and eligibility of appeals
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sections of the regulatory area for -- I
09:10
probably managed that area around 25 years or
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so.
09:10
And then for the last 15 or so, I've
09:10
been vice president for Division I, which means
09:10
that I facilitate, manage general policies that
09:10
affect Division I institutions. I work with
09:10
the presidential board of directors that adopts
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legislation, passes policies in Division I.
09:10
I was envoy in major issues
09:10
affecting athletic directors, commissioners,
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others, coaches around the country, serve on
09:10
the National Association of Basketball Coaches
09:11
board of directors. I deal with, then, most of
09:11
the so-called power coaches in sports in
09:11
Division I. I'm sort of a generalist. So I've
09:11
gone from the so-called regulatory, more
09:11
prosecutorial area to the area where you
09:11
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establish policies going forward.

09:11
Q. A question or two about that first
09:11
category that you mentioned, the -- I suppose
09:11
it was director of enforcement.
09:11
Did I get the title right?
09:11
A. Well, I was for a while. I became
09:11
assistant executive director and then vice
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president. Everyone usually wanted to talk to
09:11
the director of enforcement. And when that
09:11
happened and I was a supervisor, I quickly
09:11
transferred the line to the director but became
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known as the director of enforcement, yes.
09:12
Q. What -- and I don't expect every
09:12
single duty or responsibility. But in a
09:12
summary fashion, tell me what one in that job
09:12
does or handles.
09:12
A. We collected information related to
09:12
potential alleged violations of NCAA rules in
09:12
all areas, often recruiting on the major -- you
09:12
know, in the major revenue sports would
09:12
probably be the most likely candidates for
09:12
investigations where we developed sufficient
09:12
information. To inquire further, I would
09:12
submit a letter of preliminary inquiry to the
09:12
institution in order to advise them that they
09:12
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were to be investigated by the enforcement

09:12
staff.
09:12
We'd set out to do so on campus and
09:12
elsewhere, wherever you might first develop the 09:13
most truthful information possible.
09:13
Eventually, if we were able to
09:13
establish sufficient information that we
09:13
believed the committee on infractions, which is 09:13
a peer group of faculty and lawyers and others
09:13
from schools who act as judges in these
09:13
matters, if we were to believe they might make
09:13
findings of violations and assess a penalty, we 09:13
would submit a letter of official inquiry
09:13
requiring an institution to go back out,
09:13
collect direct information much like we did,
09:13
and for all of us, then, to appear before the
09:13
peer group of committee on infractions members
09:13
to evaluate the information and eventually
09:13
assess penalties, if appropriate, pending
09:13
appeals and so forth.
09:13
Q. The initial letter that goes to
09:13
institutions, is that a public letter, or is
09:13
that a private letter?
09:13
A. It's private from our perspective.
09:14
We don't announce it, but we send it directly
09:14
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to either the president or the chancellor of

09:14
the institution signed by the head of the
09:14
enforcement program.
09:14
Q. Does it list potential violations of 09:14
NCAA bylaws and regulations and rules? Or is
09:14
it a general document saying we're looking at
09:14
you?
09:14
A. It has evolved over time. I would
09:14
submit something quite general very early on,
09:14
and as I was conducting the programs, they
09:14
became more structured following that and
09:14
became more specific in regard to areas of
09:14
inquiry. Often pointing out either the methods
09:14
or the areas that we might be inquiring into.
09:14
Q. That letter, and tell me if it's
09:14
different than it would be today, does that
09:15
letter do anything more, require anything more
09:15
than notice for the institution to determine -- 09:15
just to put them on notice? In other words,
09:15
does it require the institution to respond?
09:15
Does it require the institution to gather
09:15
documents for you?
09:15
MR. KOWALSKI: Objection to form.
09:15
A. Well, any of the above are
09:15
possible -09:15
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Q. Okay.
09:15
A. -- ways to frame it. Often as I was
09:15
beginning to operate the program, I wanted to
09:15
control the information and where we might go.
09:15
So for me, it was more notice. And then that
09:15
at least alerted the institution that we would
09:15
be conducting inquiries.
09:15
I'd say it's probably much more
09:15
specific now at this point.
09:15
Q. Who, if there is a typical, who
09:15
typically would be the signatory on behalf of
09:15
NCAA of that first letter?
09:15
A. For me, it was me as head of the
09:16
enforcement program. Now it would be the vice
09:16
president of enforcement.
09:16
Q. And who's that?
09:16
A. John Duncan.
09:16
Q. I'm going to paraphrase just so I
09:16
don't waste all your time. I'm sure there are
09:16
things you'd rather be doing than sitting in
09:16
this room all day.
09:16
It sounds to me like, tell me if
09:16
I've got it right, that letter is sort of a
09:16
notice the NCAA may conduct a formal
09:16
investigation or may refer to the committee on
09:16
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infractions, you're putting the institution on

09:16
notice, NCAA then goes and does its own
09:16
investigation of potential violations?
09:16
MR. KOWALSKI: Objection.
09:16
A. It's a letter that says we are, in
09:16
fact, going to conduct an investigation. We're
09:16
on it, and we have enough for us to be curious
09:16
about what the rest of the information is that
09:16
may be available. At the end of that process,
09:16
you could still make a decision -09:17
Q. Not to -09:17
A. -- we've got not enough or we have
09:17
more than we anticipated and we're going to
09:17
draft the official letter of inquiry.
09:17
Q. Your NCAA investigators in that
09:17
interim period before a decision is made on
09:17
what to do with the committee of infractions
09:17
are the ones doing the investigation?
09:17
A. They, for the most part, are. Could 09:17
be anyone from the association. Actually,
09:17
there probably were assignments to people who
09:17
were even outside the staff during the time I
09:17
was conducting the program, and there is the
09:17
ability of the infractions process or the
09:17
enforcement staff to collect information from
09:17
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any source. So we get information from

09:17
newspaper articles, for example. That would be
09:17
enough for us to think about do we need to
09:17
collect some additional information, and we
09:17
might do that without any notice at all to an
09:17
institution.
09:17
When we reach the point where we
09:17
think, well, this really does seem to be enough
09:18
reasonably reliable information to conduct
09:18
further inquiries, then that's the point where
09:18
the letter is required.
09:18
Q. The folks outside of your
09:18
enforcement staff who get involved could be
09:18
officials at the conferences?
09:18
A. Sure. Could be anyone.
09:18
Q. Could it be outsourced? Does
09:18
enforcement do that, hire investigators to go
09:18
do enforcement investigations for them?
09:18
A. I'm sure that's happened on
09:18
occasion. I had, yes, 25 arson investigators
09:18
actually who, as a sidelight, were contracted
09:18
with me to conduct inquiries with highly
09:18
recruited student athletes or prospects to ask
09:18
them what went on in their recruitment or
09:18
whether there were any things that caused
09:18
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concern related to NCAA rules. So sure. You

09:19
could do it that way. You could receive
09:19
information from any source.
09:19
Q. Curiosity, there wasn't any
09:19
particular reason they were arson investigators
09:19
other than they were just investigators, it
09:19
wasn't like these kids were suspected of
09:19
setting fires, were they?
09:19
A. No. My hope was that it was a group 09:19
of folks with some enforcement background and
09:19
integrity to be able to conduct inquiries on
09:19
our behalf. It was a failed effort, however.
09:19
Q. What was that effort?
09:19
09:19
A. Well, I used them as an additional
09:19
set of resources to conduct inquiries, and I
09:19
didn't think they were very effective at doing
09:19
it. So I disbanded the program.
09:19
Q. Do you recall whether those
09:19
investigators were part of a private
09:19
investigative organization or business, or were
09:20
they just sort of ad hoc, you were finding
09:20
investigators and then hiring them for the
09:20
special task?
09:20
MR. KOWALSKI: Object to form.
09:20
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A. It was an organization of arson

09:20
investigators. I don't remember the acronym
09:20
for them. But they existed, you know,
09:20
throughout the country.
09:20
Q. Was there one particular
09:20
investigation on which you used these fellows,
09:20
or was it several investigations that didn't
09:20
pan out?
09:20
A. I used them in several
09:20
investigations, and I would not say it didn't
09:20
pan out. I would say they simply weren't as
09:20
effective as people who were full-time
09:20
employees and subject to coming back and
09:20
debriefing and so forth. They were more fans
09:20
of power coaches than they were effective
09:20
investigators.
09:20
Q. Roughly what time frame are we
09:20
talking about, if you recall?
09:20
A. That would have been the '80s.
09:20
Q. I'm going to get back into my little
09:20
crib note on what I think the enforcement
09:21
process is.
09:21
Once your investigation is complete,
09:21
enforcement decides whether it's going to, this
09:21
is my word, not yours, file a formal complaint
09:21
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with the committee on infractions, is that

09:21
roughly right?
09:21
09:21
A. No. If the enforcement staff
09:21
concludes that it has sufficient information
09:21
that causes them to believe that it's likely
09:21
there would be a finding of violation if the
09:21
matter is pursued with the committee on
09:21
infractions, the specific allegations of
09:21
wrong-doing are submitted to the institution
09:21
itself. And the institution then is required
09:21
to investigate, respond for the purpose of
09:21
taking it to the committee on infractions.
09:21
Q. Once that processed commenced, that
09:21
is where you notify the institution of a
09:21
probable violation of NCAA rules and
09:21
regulations, does automatically the results go
09:22
to the committee on infractions?
09:22
A. I suppose it's possible for the
09:22
matter to be adequately addressed so that there 09:22
does not seem to be a violation necessary for
09:22
review or further consideration by the
09:22
committee on infractions.
09:22
Q. When the staff is making the
09:22
determination that we are talking about, am I
09:22
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right that they are taking a look at the facts

09:22
as they develop and comparing them to NCAA
09:22
rules, regulations, bylaws, et cetera, and
09:22
trying to match up whether there was a
09:22
violation?
09:22
09:22
A. Yes. I think that's right.
09:22
Q. Okay.
09:22
A. Just recognizing that there are two
09:22
formal spots where the first is what I call the 09:22
letter of preliminary inquiry, saying, school,
09:22
we're looking.
09:22
Q. Right.
09:22
A. You need to know.
09:22
Second is we made the decision that
09:22
there is, in fact, something that we should
09:23
take to the committee on infractions, and
09:23
that's called a letter of official inquiry.
09:23
Q. And who sends that?
09:23
A. The head of the enforcement program. 09:23
Me or in the past -- well, or now would be John 09:23
Duncan. Prior to that, would be Julie Roe.
09:23
Prior to that, would be David Price.
09:23
Q. Are those letters confidential from
09:23
NCAA's perspective?
09:23
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A. We don't release them. Many

09:23
institutions do, due to open records concerns.
09:23
Q. Ah.
09:23
Now, as I understood your answer at
09:23
the point the institution gets that letter, it
09:23
can attempt to remediate the issue, convince
09:23
NCAA that it didn't violate a rules infraction? 09:23
Something else? Is that possible?
09:23
09:23
A. It's more the latter. They're
09:23
required to collect information to determine
09:23
what they believe the findings of fact are.
09:24
There's no plea bargain in NCAA processes.
09:24
Q. If the matter is not resolved by the
09:24
institution doing its own review, it moves onto 09:24
the committee for infractions?
09:24
09:24
A. If -- I'm not sure I follow. If
09:24
there's no -- you mean if the staff receives a
09:24
response from the institution and the staff
09:24
concludes that its information and facts are
09:24
more persuasive than those submitted by the
09:24
institution, then it does go to hearing before
09:24
the committee on infractions.
09:24
Q. That's -- I didn't say it obviously
09:24
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as well as you did.

09:24
Your section, your unit, your
09:25
division, not yours now but yours then, would
09:25
act as the prosecutors in any kind of action,
09:25
for lack of a better term?
09:25
MR. KOWALSKI: Object to the form.
09:25
A. Yeah, it really is the wrong term.
09:25
In our processes, even though I think I used
09:25
that word earlier, it's an attempt to develop
09:25
full facts. So the idea of this is not that
09:25
institutions go on the defense. In fact, that
09:25
usually works against institutions to, say,
09:25
come and get us if you can, NCAA. And I would
09:25
make that point during hearings.
09:25
The idea was for us, we are supposed 09:25
to be in the enforcement area, at least an
09:25
objective collector of facts, both exculpatory
09:25
and inculpatory and we work with the
09:25
institution to discover their versions of the
09:26
facts as well as any involved individuals'
09:26
versions of the facts and put all of that on
09:26
the table before the committee on infractions
09:26
to make a judgment.
09:26
Q. Interesting. So that when there is
09:26
a hearing before the committee on infractions,
09:26
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enforcement may actually be putting on evidence

09:26
that is exculpatory as well as inculpatory
09:26
because you're trying to tell them this is what
09:26
happened?
09:26
09:26
A. Correct.
09:26
Q. And then it's, I imagine, the
09:26
institution's burden to challenge your evidence
09:26
and your presentation of what you believe the
09:26
objective facts are at that point?
09:26
09:26
A. I'd say the burden is on the
09:26
enforcement staff. The enforcement staff would
09:26
have to present persuasive information to
09:26
overcome whatever information the institution
09:26
or individuals submit.
09:26
Q. As part of the hearing process, is
09:26
there also a presentation to demonstrate to the
09:26
infractions committee that not only are the
09:27
facts as we present them, these facts amount to
09:27
violations of NCAA policy?
09:27
09:27
A. During my time, yes. I would do
09:27
those types of summaries of what I thought this
09:27
particular case amounted to, looked like, and
09:27
7 (Pages 22 to 25)
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how it should be considered. I don't know

09:27
precisely what occurs now. I've been out of
09:27
that area for 15 years, so I can't tell you
09:27
precisely how they do that now.
09:27
Q. Do you have reason to think it's
09:27
different materially than it was when you did
09:27
it?
09:27
A. Well, there are -- there are many
09:27
differences in enforcement program than when I
09:27
did it in 1998. So I don't know.
09:27
Q. Okay.
09:27
A. I don't know how to answer that.
09:27
Q. When you -- when you did it -- and
09:27
if you know if it's different, I'd appreciate
09:28
if you'd educate me on it -- during this
09:28
hearing process and assuming that violations
09:28
are determined, is it the committee's role to
09:28
then move on and develop sanctions?
09:28
A. Yes, it is.
09:28
Q. Does the sanctions process, I'm
09:28
going to revert back to what I know which is
09:28
sort of the criminal process, where there would 09:28
be the liability phase and then the penalty
09:28
phase, does it work that way in the commission
09:28
too -- I'm sorry, for the infractions
09:28
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committee?
09:28
09:28
A. I'd say usually, no. There's not a
09:28
separate process or hearing. At a so-called
09:28
sentencing stage, there would be simply the
09:28
committee on infractions assessing the number
09:28
and nature of violations involved and
09:28
determining from the time I was involved
09:29
whether they were -- whether they supported
09:29
either secondary or major violations of NCAA
09:29
rules and then, if so, determine what the
09:29
appropriate penalties should be given the
09:29
individual nature of each case.
09:29
Q. Does the enforcement division
09:29
advocate for a particular penalty -- let me ask 09:29
it, break it up.
09:29
Does it advocate for a particular
09:29
penalty?
09:29
A. In my time, no. I doubt if that
09:29
would happen now.
09:29
Q. Does or did the enforcement group
09:29
present evidence to the committee on
09:29
infractions on what penalties are possible
09:29
given the facts?
09:30
09:30
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A. In the very early stages, they did

09:30
or I did. In the '70s, they were what I
09:30
considered to be moving into the role. At that 09:30
time, you didn't have additional staff members
09:30
to work with the committee on infractions, so I 09:30
served as both the presenter and then I was the 09:30
second secretary basically to the committee on
09:30
infractions.
09:30
So I would present a series of cases
09:30
that looked similar depending on how they might 09:30
consider the findings in the case for their -09:30
as a resource to the committee. That, I'm sure 09:30
does not happen anymore or if it does, it is in 09:30
the second phase where the hearings are over,
09:30
the enforcement staff is gone. At that point,
09:30
then you have the committee on infractions and
09:31
their own staff that might do research for the
09:31
committee.
09:31
Q. So we -09:31
A. So that's separated.
09:31
Q. Okay. So we think now, today,
09:31
enforcement would be less involved in
09:31
discussing the sanctions phase -09:31
A. They're not involved at all.
09:31
Q. At all. The committee would, on its 09:31
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own work, out what it thought should happen

09:31
with respect to sanctions?
09:31
A. Correct.
09:31
Q. Would there be input requested from
09:31
enforcement or solicited from enforcement, if
09:31
you know?
09:31
MR. KOWALSKI: You mean right now?
09:31
Q. Yeah, right now.
09:31
A. I don't know if that would occur.
09:31
There would be a requirement that if that kind
09:31
of thing were to happen, I think both parties
09:31
have to be ill advised. There must be some
09:31
missing piece of information that they need to
09:31
take into consideration.
09:31
Q. Okay.
09:31
A. I don't remember that ever being
09:31
anything different.
09:31
Q. Tell me a bit about your role now.
09:31
What do your job duties entail today?
09:32
A. Well, now I'm still -- I still have
09:32
something of a regulatory bent, I guess. But
09:32
in governance, we have a series of processes to 09:32
consider new pieces of legislation or other
09:32
issues that are facing the association like
09:32
should we do something different about how
09:32
8 (Pages 26 to 29)
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David Berst
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transfer rules work? Should we have cost of

09:32
attendance for some or all student athletes? I
09:32
facilitate and work with the various groups
09:32
that can bring that to the appropriate
09:32
legislative processes to have a vote of either
09:32
membership or board of directors or legislative
09:32
council or leadership council.
09:32
I work with over a hundred
09:32
committees that are made up of groups of
09:32
individuals from all of our institutions in
09:33
pursuing their own agendas. So I'm supposed to
09:33
know all of those things and figure out how to
09:33
get them resolved reasonably from the
09:33
perspective of whoever it is that's advocating
09:33
a particular position.
09:33
Q. Does that involve, in your position,
09:33
drafting new legislation?
09:33
A. Hopefully, no, because I usually
09:33
have somebody that will do it.
09:33
Q. Okay.
09:33
A. But I certainly review it and am
09:33
involved in helping with intent or rationale
09:33
often.
09:33
Q. I gather that when there are issues
09:33
of potential new legislation, you have staffers
09:33
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who are busy at your direction writing

09:33
potential new legislation?
09:33
A. Yes.
09:33
Q. And then you -- but you ultimately
09:33
have to sign off on it and you would be
09:33
generally aware of what they're doing and
09:33
interacting with them?
09:33
09:33
A. I don't really have a sign off
09:34
because there may well be differences of
09:34
opinion about whether something should go
09:34
forward or what form it ought to take. I try
09:34
to help, nudge, or push or influence, but it's
09:34
usually not my final decision on what it is
09:34
that's going to go up for a vote. It's going
09:34
to be the sponsor of the actual initiative.
09:34
Q. That's whose decision it is to
09:34
determine whether a legislative issue is going
09:34
to be pushed?
09:34
A. Yes.
09:34
Q. And those sponsors come either from
09:34
the institution level or the committee level,
09:34
those are people who are sort of granular in
09:34
dealing with their own -09:34
09:34
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A. That's in part, yes, as well as

09:34
conferences and even the board of directors
09:34
itself.
09:34
Q. Legislatively, talk me through the
09:34
process by which new rules, new bylaws, new
09:34
whatevers are approved so that they are
09:35
effective and enforceable by NCAA?
09:35
MR. KOWALSKI: I object to form.
09:35
Just I don't know if there's a distinction
09:35
between rules, bylaws, and whatever, but
09:35
you might want to take it -09:35
MR. HAVERSTICK: Sure.
09:35
MR. KOWALSKI: If there's a
09:35
difference, you might -09:35
A. There are, as far as legislation is
09:35
concerned, the bylaws, there are two processes. 09:35
One is called an autonomy process whereby five
09:35
conferences within the association, the highest 09:35
resource conferences have an explicit set of
09:35
areas where they can draft legislation for
09:35
consideration. And the annual deadline to
09:35
submit that kind of legislation is September 1. 09:35
And thereafter, there's an amendment 09:35
period involving those same five conferences,
09:36
and then that January convention, there is a
09:36
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business session for discussion first of

09:36
whatever pieces of legislation are to be
09:36
considered and then actual voting by 65 schools 09:36
and 15 student athletes. That would be bylaws
09:36
that are explicit to them.
09:36
Bylaws that are not explicit to the
09:36
autonomy group go through a similar deadline of 09:36
September 1 for submission. Then an amendment
09:36
period. Ultimately, a discussion forum in
09:36
January at the NCAA convention, and then voting 09:36
by a group called the NCAA -- the Division I
09:36
council, which is a 40-member representative
09:36
group from the 32 conferences, adding faculty
09:36
representatives and student athletes and
09:37
commissioners to that group who would vote by
09:37
majority in April on whether those pieces of
09:37
legislation would be adopted effective the
09:37
following fall. Both areas would both usually
09:37
be effective the following fall.
09:37
There are sometimes constitutional
09:37
provisions that would be submitted often by a
09:37
group like the board of directors or even
09:37
pursued by the executive committee of the
09:37
association, which is a broader, overarching
09:37
group. And those typically, if they go forward 09:37
9 (Pages 30 to 33)
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David Berst
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as a change in the constitution, would require

09:37
a vote, two-thirds majority vote of all
09:37
Division I members, 350-ish or so plus 32
09:37
conferences at convention assembled in January. 09:38
Q. Is that subject to veto?
09:38
A. Yes, it can be rescinded in effect
09:38
by two-thirds majority of the membership during 09:38
a 60-day period after those matters are
09:38
adopted.
09:38
The autonomy legislation is not
09:38
subject to recision because all the
09:38
institutions actually vote on those.
09:38
Q. What five conferences, by the way,
09:38
are implicated? You mentioned there were five. 09:38
A. The Atlanta Coast Conference, Big
09:38
Ten Conference, Big 12 Conference, Pac-12
09:38
Conference, and the Southeastern Conference.
09:38
Q. Is the -- I'm calling it a veto,
09:38
that may not be -- and correct me if that's not 09:38
the right term, I'm analogizing it to the
09:38
legislative process -- is there the ability for
09:38
a veto override?
09:38
09:38
A. It's now a recision process. Yes,
09:38
for a bylaw provision that's adopted by the
09:39
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council, and I don't think you can get there

09:39
from either the constitutional provisions or
09:39
the autonomy provisions because those actually
09:39
involve a vote of all of the members at the
09:39
outset.
09:39
So I think the next step from there
09:39
if somebody's adequately upset would be courts.
09:39
(Berst Exhibit Number 1 marked for
09:39
identification.)
09:39
Q. Okay. I'm going to mark, it's just
09:39
on the table, so I see it there and I'm going
09:39
to reference it quickly. There's -- on the
09:39
table right now is the Division I manual for
09:39
2011/'12. I'll mark that as Berst 1. I'm not
09:39
sure we're going to get to the point we're ever 09:39
going to actually look at it, but it's here so
09:39
I thought of something to ask.
09:39
MR. KOWALSKI: And obviously, if you
09:39
ever want to look at it -09:39
MR. HAVERSTICK: Yeah.
09:40
A. And let me say that everything I
09:40
just told you would be in NCAA '13/'14. So
09:40
everything in '11/'12 will be different than
09:40
what I just said.
09:40
Q. Okay. So we'll mark it. We may not
09:40
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use it. All right. That was going to be one

09:40
of my questions. '11/'12 is no longer current?
09:40
A. It's only current for -09:40
Q. That year?
09:40
A. -- the period it indicates, and
09:40
there are adjustments that you'll see in gray
09:40
shades each year.
09:40
Q. Okay.
09:40
A. And that's the change from the year
09:40
before.
09:40
Q. In general, is the Division I manual
09:40
where one would go as the resource to find any
09:40
NCAA Division I bylaw, rule, regulation, et
09:40
cetera?
09:40
09:40
A. The -- I would say the online manual
09:40
is the one that controls because it's always
09:40
up-to-date. It simply depends on the question
09:41
whether you go there or probably your first
09:41
stop would be with individuals on the staff who
09:41
provide interpretations.
09:41
Q. I don't think I asked the question
09:41
correctly. What I'm driving at is are there
09:41
sources of jurisprudence that control NCAA life
09:41
outside of -- and I'm touching Berst 1 here -09:41
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outside of the manual, whether it's online or

09:41
the paper version? And assuming it's the
09:41
up-to-date version.
09:41
09:41
A. And I don't know what you mean by
09:41
your question. Are there areas of
09:41
jurisprudence? What are you saying?
09:41
Q. If I wanted to exhaust the universe
09:41
of rules and regulations applicable to NCAA
09:41
Division I life, are there sources outside of
09:41
Division I manual that I would need to
09:41
reference?
09:41
09:41
A. There would be numerous of those.
09:42
There would be all of the rules books, for
09:42
example. This says follow the rules books, and
09:42
you have another place to go find out football
09:42
fields are a hundred yards long.
09:42
Q. Okay.
09:42
A. You have health and safety issues
09:42
and procedures that are put in place or are
09:42
required, and you wouldn't have all of those
09:42
set forth in there. You would have a series of
09:42
policies adopted by the executive committee.
09:42
For example, there are association-wide issues
09:42
10 (Pages 34 to 37)
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that you wouldn't find in the NCAA manual but

09:42
are controlling because in their duties, they
09:42
have the authority to pass policies that affect
09:42
association-wide issues.
09:42
You have a whole set of policies
09:42
adopted by the board of directors that would
09:42
relate to advertising, you know, maybe even the
09:42
price of a final four ticket or something that
09:42
you wouldn't find there. So there are a lot of
09:43
other sources to go to.
09:43
Q. Are those other sources external to
09:43
the Division I manual referenced in the
09:43
Division I manual somewhere, to your knowledge?
09:43
A. In some fashion, yes.
09:43
Q. So by studying the Division I
09:43
manual, if I needed to learn a particular rule,
09:43
even if the rule itself wasn't in the manual,
09:43
likely I would find a reference to a document
09:43
that I could go get from NCAA?
09:43
09:43
A. I think that's right. I think you
09:43
would be able to find authority or information
09:43
that would lead you to that information.
09:43
Q. Okay.
09:43
A. And you also have then staff
09:43
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resources to help you identify where those

09:43
would be as well.
09:43
Q. Who -- do you have a direct-line
09:43
report?
09:43
A. Yes.
09:43
Q. Both up and down?
09:43
A. Up to Donald Remy. Down to Jackie
09:44
Campbell, who's the director of Division I.
09:44
Q. You report to Mr. Remy in his role
09:44
as general counsel or in his role as executive
09:44
vice president?
09:44
A. As executive vice president for law, 09:44
policy, and governance. So the governance
09:44
piece of that would involve me.
09:44
Q. Okay. That answered my question.
09:44
He has separate roles depending on what issue
09:44
we have to be -09:44
A. I agree with that, yes.
09:44
09:44
Q. And in your -- fair to say that in
09:44
your normal interaction with Mr. Remy in the
09:44
chain of command or the hierarchy, you're
09:44
interacting with him in his capacity as having
09:44
oversight of governance issues as opposed to
09:44
his general counsel or chief counsel role?
09:45
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09:45
A. I wish that were the case. You
09:45
know, this is probably only the fifth
09:45
deposition in the last couple of months. So as
09:45
you can imagine, I deal with Donald on a whole
09:45
host of matters related to the impact on
09:45
Division I and various areas. So you'll have
09:45
to work it how I distinguish those.
09:45
Q. I get that. You're not reporting up
09:45
to him, though, in a legal capacity?
09:45
A. I am not, no. Well, I guess the
09:45
answer to that is no. I'm not a lawyer. I
09:45
have opinions often that I'll share.
09:45
Q. I'd love to hear them.
09:45
A. Well, you may.
09:45
Q. I might. I hope I do.
09:45
MR. KOWALSKI: Just so the record is
09:45
clear, I assume you've been reporting to
09:45
Donald in that capacity since he became
09:45
executive vice president of corporate -- of 09:45
policy, law, and governance?
09:45
A. Yes. Prior to that, I reported to
09:46
Bernard Franklin. I don't know what the timing
09:46
is of these issues but ...
09:46
Q. Let's get into that. By the way,
09:46
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when you were in enforcement, to whom did you

09:46
report up to in enforcement?
09:46
A. I reported to the executive
09:46
directors only, so that would have been Walter
09:46
Byers, Dick Shultz, Ced Dempsey, and then I got 09:46
out of enforcement at that point.
09:46
Q. Does enforcement -- I know the names 09:46
are going to be different, but does
09:46
enforcement, the head of enforcement have a
09:46
similar reporting up structure now, if you
09:46
know?
09:46
A. I believe they reported to Jim Isch
09:46
who would have been an executive vice president 09:46
is my understanding.
09:46
Q. Is enforcement out of your direct
09:46
chain of command or structure? They don't
09:46
report up to you?
09:46
A. They do not. And I've intentionally
09:46
in 15 years tried to distance myself as much as 09:47
I can, although someone will come to me and ask 09:47
about a procedural issue from time to time.
09:47
Q. Is that because you have been, as a
09:47
long-tenured NCAA employee -- let me ask, no,
09:47
that's the wrong way I want to ask it.
09:47
You acknowledge that you are a
09:47
11 (Pages 38 to 41)
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long-tenured NCAA employee?

09:47
A. Yes.
09:47
09:47
Q. You have presumably a wealth of
09:47
institutional knowledge that I imagine a lot of
09:47
folks there don't have?
09:47
A. I would be so bold as to say that,
09:47
yes.
09:47
Q. Do you have in your belief a -- this
09:47
will draw an objection -- a formidable
09:47
knowledge of the NCAA bylaws and regulations?
09:47
MR. KOWALSKI: I don't want to
09:47
disappoint, so objection.
09:48
Q. It's a compliment.
09:48
MR. KOWALSKI: And I'm not objecting
09:48
to the compliment.
09:48
A. I would say in the last 15 years, I
09:48
would not have followed as carefully all of the
09:48
changes for the first however many years I
09:48
wrote many of the things that are contained.
09:48
So I still have quite a bit of
09:48
knowledge. But, you know, I could -- you could
09:48
catch me on some phrase or change that has
09:48
occurred that I missed.
09:48
Q. That was going to be one of my
09:48
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questions. Many of the rules and policies and

09:48
bylaws still in force were ones that you wrote? 09:48
A. Yes.
09:48
Q. And if we ever have had to, you
09:48
could identify for us which ones you wrote?
09:48
A. Yes.
09:48
Q. Fair to say that for the ones you
09:48
didn't write, you had at least some level of
09:48
input on?
09:48
A. No, not in all instances.
09:48
Q. Okay.
09:48
A. I'm sometimes aware of changes, but
09:48
not that I participated in.
09:49
Q. Is your institutional knowledge, if
09:49
you know, the reason that -- I know we're
09:49
skipping ahead, so I'll ask the question and we 09:49
can go back to where I was.
09:49
Is your institutional knowledge the
09:49
reason, if you know, that you were included in
09:49
conversations and negotiations with Gene
09:49
Marsh -09:49
09:49
Q. -- regarding the consent decree?
09:49
A. That was my intention. I attempted
09:49
to insert myself in the process at that point,
09:49
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and I believe that my view that I could be of

09:49
assistance at that point was accepted.
09:49
Q. We'll talk -- thank you for that.
09:49
And we'll talk about that. I'm trying to keep
09:49
a logical progression because otherwise I'll
09:49
fly off my axis, and we'll be here all day and
09:49
none of us want that.
09:49
Let me direct your attention to late
09:50
2011, and naturally we're now going to talk
09:50
about Penn State and Jerry Sandusky.
09:50
When did you come to learn about the
09:50
Jerry Sandusky issue at Penn State?
09:50
A. I'll have trouble with times, dates,
09:50
and those kinds of things. My impression and
09:50
my recollection now is just like everyone else,
09:50
you know, based on news accounts related to it
09:50
and just almost being inundated by articles and
09:50
comments and commentary.
09:50
Q. Do you recall whether anyone in
09:50
particular at NCAA alerted you to the issue?
09:50
A. At that point, no, I don't believe
09:50
so.
09:51
Q. As we sit here today, you recall
09:51
that -- if I tell you that Jerry Sandusky was
09:51
charged in early November 2011, you'd agree
09:51
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with me or have no reason to think I'm fooling

09:51
you, at least?
09:51
A. I'm willing to accept your timeline.
09:51
Q. Okay.
09:51
A. I can't do any better.
09:51
Q. That's fine. Yeah, not a trick.
09:51
So if we accept that it was early
09:51
November 2011 when Jerry Sandusky was charged
09:51
criminally, would that be about when you think
09:51
you learned of the issues?
09:51
A. Whenever all of the major newspapers
09:51
and others began to cover it, I'd be, yes, I
09:51
would know about it.
09:51
Q. Now, as specifically as you can
09:51
recall, and I can show you documents to help if 09:51
we think it would help, what was -- what were
09:51
the action steps inside NCAA once the
09:51
institution became aware of this issue?
09:51
A. I don't know the answer to that.
09:52
Q. Do you know the answer with respect
09:52
to your involvement in any particular meetings, 09:52
discussions, et cetera?
09:52
A. Yeah, I was invited to a meeting of
09:52
the, at least, vice presidents or what we
09:52
probably would have called presidents' cabinet
09:52
12 (Pages 42 to 45)
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at the time sometime in November, and I believe 09:52

that's the first I knew I was going to be
09:52
involved in some conversation.
09:52
Q. If I told you that there was -- and
09:52
by the way, for any of these things that I'm
09:52
looking at right now, if you'd like to see them
09:52
to help refresh your memory -09:52
A. I will.
09:52
MR. HAVERSTICK: Well, let's do
09:52
this. Why don't we mark Tab 6 as Berst 2.
09:52
I'm wrong. I'm wrong. Tab 5 as Berst 2.
09:53
I apologize.
09:53
09:53
identification.)
09:53
Q. Now, what I've handed you is an
09:53
email from Mark Emmert to Diane Young. You are 09:53
carbon copied on this email, along with a few
09:53
other folks, and it regards a meeting that
09:53
Dr. Emmert desires to have on November 16th,
09:54
2011, to discuss Penn State. And that's a
09:54
paraphrase.
09:54
Does this email jog your memory
09:54
about when you may have had a first meeting
09:54
with folks?
09:54
A. No, it doesn't. I mean, I assume
09:54
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it's going to be when they say they're going to

09:54
set it up. What I said before was I got
09:54
invited to a meeting, so this is the beginning
09:54
of that invitation, apparently.
09:54
Q. Okay. Do you recall specifically or 09:54
generally, I'll take either one, what was
09:54
discussed at the first meeting you had on the
09:54
Penn State issue?
09:54
MR. KOWALSKI: And you can answer
09:54
the question. But in doing so, please
09:54
don't reveal any privileged communications
09:54
with legal counsel that may have occurred
09:54
during that meeting.
09:54
A. To me, that meeting was an effort by 09:54
Mark Emmert to begin to think through what the
09:55
appropriate response of the NCAA would be to
09:55
the Penn State matter, which according to at
09:55
least published reports, was -- seemed to be as
09:55
serious a matter as he could conjure up at
09:55
least involving athletic personnel. And he was
09:55
trying to determine what the appropriate
09:55
response and/or process should be for him to
09:55
move forward.
09:55
Q. Do you recall if Dr. Emmert at this
09:55
meeting or thereabouts characterized this issue
09:55
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as one for NCAA's enforcement processes to get

09:55
involved in?
09:55
09:55
A. The -- and I don't know whether -- I
09:55
can't remember how many meetings there were, if
09:56
there was one or if it were two. There must
09:56
have been a couple right around that same time.
09:56
But certainly one of the considerations was,
09:56
from his perspective, whether the enforcement
09:56
program ought to be employed to become involved
09:56
in this matter.
09:56
Q. Is it accurate to say that early on,
09:56
Dr. Emmert advocated a role for NCAA in taking
09:56
action with respect to Penn State?
09:56
09:56
A. From my perspective, he believed
09:56
that the NCAA had to be responsive in some
09:56
manner to the Penn State matter. We were being
09:56
inundated by both information and probably
09:56
individuals saying the NCAA has to act in some
09:56
fashion.
09:57
Q. Was it your view in November of 2011
09:57
that NCAA had to act?
09:57
09:57
A. No, it was not.
09:57
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Q. Could you explain?

09:57
A. Well, the -- at that juncture,
09:57
the -- there were, you know, a variety of
09:57
possible ways to react. But I was opposed to
09:57
the notion that the enforcement program should
09:57
become involved. I believed that our processes
09:57
were such that if you were to attempt to
09:57
address Penn State through the normal
09:57
enforcement process that involves the things I
09:57
described before, direct interviews and
09:57
information, which I thought would be obviously
09:58
complicated and prohibited for a period of time
09:58
because of, you know, potential criminal
09:58
actions and matters and the fact that I was
09:58
trying to identify appropriate bylaws that
09:58
might come into play, institutional control was
09:58
discussed, as well as the overarching
09:58
principles of integrity and conduct of
09:58
intercollegiate athletics programs, I did not
09:58
believe that was the most appropriate way to
09:58
try to move this forward.
09:58
Q. What did you believe was the most
09:58
appropriate way to move it forward?
09:58
MR. KOWALSKI: At this time?
09:58
09:58
13 (Pages 46 to 49)
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A. I don't know that at that time I

09:58
articulated what my own view was. I think I
09:59
simply objected to the notion that the
09:59
enforcement program was a viable option at that
09:59
point.
09:59
Q. Is that because your belief at the
09:59
time was that the enforcement process did not
09:59
have, for lack of a better term, jurisdiction
09:59
over this matter?
09:59
09:59
A. I have some trouble using the word
09:59
jurisdiction because in a technical sense, the
09:59
response back to me on those kinds of issues
09:59
was that, of course, there's jurisdiction.
09:59
There's certainly potential jurisdiction under
09:59
the rules that I've already made reference to,
09:59
whether it's the constitutional provision or
09:59
institutional control.
09:59
I had not -- I had chosen at least
09:59
over the years not to process through the
10:00
infractions process something quite the way it
10:00
was being described. I -- so I expressed
10:00
adamantly that I didn't think that was the way
10:00
to go. I think, in fact, I probably was the
10:00
only one who spoke in such negative terms. I
10:00
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know Julie also pointed out the practical

10:00
issues that you would encounter if you were to
10:00
take it that way, but I was much more direct on 10:00
those points.
10:00
I can't say that it had no
10:00
jurisdiction. I just hadn't done it that way
10:00
and didn't believe that was appropriate.
10:00
Q. Couple follow-up questions from
10:00
that.
10:00
Did you view this as a criminal, not
10:00
an athletic matter, at least initially?
10:00
10:00
A. Well, the starting point was, for
10:00
me, that -- and often in other cases that I was 10:01
familiar with before that I might have
10:01
encountered, you have a criminal issue and we
10:01
all ought to cooperate as best we can with the
10:01
criminal processes and assure that there might
10:01
be, you know, appropriate actions taken by
10:01
them. But we needed to let those take place
10:01
before assessing whether there was something
10:01
else, and if we were to investigate, probably
10:01
investigate other things that might apply to
10:01
such a case other than this so-called
10:01
pedophilia.
10:01
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Now, what I was not willing to give

10:01
full credit to and part of the response back
10:01
was that this is so heinous and so undermines
10:01
general intercollegiate athletics generally,
10:02
that it impacts the whole association. It's
10:02
not something that just occurred as a criminal
10:02
act involving an individual and even where an
10:02
institution may have been seen as not
10:02
adequately resolving or addressing that unique
10:02
situation, this was one where through the
10:02
actions and inactions of not only athletics
10:02
personnel but maybe even administrators, you
10:02
had a sanctuary for a pedophile to do what that
10:02
person did, and that is bigger than just a pure
10:02
institutional control kind of issue.
10:02
In fact, it simply undermines the
10:02
athletics because you have a program
10:02
potentially that has such unconditional support
10:02
by a culture of people that would permit this
10:03
kind of thing to go on unabated, and I could
10:03
see that as a larger issue. And so I was
10:03
willing to accept that you could address these
10:03
kinds of issues if, in fact, you want to take
10:03
that issue on.
10:03
If you have empowered athletic
10:03
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programs that are too big to fail from the

10:03
institution's perspective, and is the tail
10:03
wagging the dog? And this was a way to get at
10:03
that culture and change it, go for it. I guess
10:03
you could do that. I wasn't in on believing
10:03
that was the appropriate way to get at it.
10:03
Q. Do you believe that today, that the
10:03
NCAA appropriately should be regulating the
10:03
bigger institutional issues that don't
10:03
necessarily involve athletics?
10:04
10:04
A. I sincerely wish that were the case.
10:04
I would say that we have not been successful in 10:04
demonstrating or even gaining support for
10:04
attacking that further. This was a start in
10:04
that direction. And if it had been more
10:04
successful in shifting the culture at Penn
10:04
State, then I would have been in on helping to
10:04
develop additional rules actually that more
10:04
explicitly would say that that's an appropriate 10:04
function and duty of the association.
10:04
And I think most of America would
10:04
agree with that.
10:04
Q. Do you -- as I heard your answer, is
10:04
it your view that this effort was not
10:04
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successful in accomplishing those goals and,

10:05
therefore, it's, in your view, not an area that
10:05
at this time NCAA should be pursuing absent
10:05
some change in the bylaw structure?
10:05
MR. KOWALSKI: Well, objection to
10:05
form. I mean, he said what he said.
10:05
MR. HAVERSTICK: I know.
10:05
Q. But you can answer. This is a
10:05
philosophy board.
10:05
MR. KOWALSKI: It's a deposition.
10:05
But go ahead.
10:05
A. I, so far, have not been able to
10:05
identify adequate support for the national
10:05
organization taking on that kind of a role more 10:05
generally. And so, you know, I don't -- at
10:05
this point, don't see that developing. I
10:05
haven't seen any drafts of additional
10:05
legislation that would head in that direction.
10:05
As to whether this was successful,
10:06
you know, I see the -- what I hope is a
10:06
minority view from plaintiffs' attorneys and
10:06
other very vocal individuals around Penn State
10:06
who simply are defending the previous culture
10:06
and saying, NCAA, you shouldn't have ever done
10:06
anything. You should not attack our program
10:06
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which is supported unconditionally. I think

10:06
that's just wrong footed, and I believe -- I
10:06
hope there's actually a majority of the people
10:06
in the valley who are thinking this is the
10:06
dumbest thing I've ever seen, and everybody
10:06
ought to be moving forward, and what Erickson
10:06
did was give everybody a chance to do that in
10:06
moving forward.
10:06
And there have been what I hope is a 10:07
minority group that simply won't accept that
10:07
which, in my mind, is proof of the problem with
10:07
the culture in the first place because I don't
10:07
ascribe proper motivations to the people who
10:07
are involved in this case, but I think there
10:07
were a whole lot of other unsuspecting and just
10:07
good people, sports fans, who accepted anything
10:07
that was said by Joe Paterno as the answer to
10:07
any question. And I knew Joe and understand
10:07
how that viewpoint could take place. But the
10:07
failure is in the failure to act appropriately
10:07
when the time came for that to occur.
10:07
So that had to change in some
10:07
fashion. I believe Mark Emmert did the right
10:08
thing to try. Even though I disagreed with the
10:08
process in the beginning, I would testify, and
10:08
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am, that it had full -- he had full authority

10:08
to try to start enforcement process that the
10:08
executive committee had full authority to act
10:08
under matters that are fundamental to the
10:08
association.
10:08
And that brings us to here today,
10:08
unfortunately.
10:08
Q. Given your institutional knowledge,
10:08
is it your view that new rules or bylaws would
10:08
have to be adopted for NCAA to undertake a
10:08
process a second time to deal with -- to
10:08
undertake a process similar to the one that it
10:08
did with Penn State to encompass all of those
10:08
broader issues? In other words, are the rules
10:08
structured right now -10:09
A. I get the question.
10:09
Q. Yeah, I'm not -10:09
MR. KOWALSKI: I object to form.
10:09
A. Well, no. The executive committee
10:09
does have the authority to do it. They could
10:09
do it again tomorrow. I think the issue for
10:09
the executive committee is whether there is
10:09
broader support, broad support within the
10:09
membership to attempt to do that. And were
10:09
that to be an initiative to be undertaken, I
10:09
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would want to write some additional language

10:09
and legislation to clarify and make more direct
10:09
that authority so that I -- so I know that
10:09
there's membership support for it.
10:09
But the executive committee had full 10:09
authority, and I think they could do it again.
10:09
Q. You would, if you controlled that
10:09
process, write legislation that would make more
10:09
explicit the authority to do what was done in
10:10
Penn State's case; is that a fair summation of
10:10
what you said?
10:10
10:10
A. I don't want to agree to whether
10:10
something has to be more explicit or not
10:10
because I don't think so. But I would want to,
10:10
you know, try to develop more language around
10:10
what an out-of-control athletics culture is and
10:10
how it becomes too big and overwhelms the
10:10
academic mission of the institution and the
10:10
integrity of intercollegiate athletics. So I'd 10:10
try to develop more language to help in that
10:10
regard. Probably make it broader than just
10:10
this unprecedented issue that I don't think
10:10
anyone in America could say should have gone
10:10
on.
10:11
15 (Pages 54 to 57)
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Q. When you expressed your views early

10:11
on about the reaction from NCAA, I heard you
10:11
testify that you were a minority, maybe a
10:11
minority of one; is that right?
10:11
A. I said that I think I was the only
10:11
one who really spoke out vocally and directly.
10:11
Q. Were there others who felt as you
10:11
did but were not as vocal?
10:11
10:11
A. The only person that spoke in the
10:11
meeting that I recall that was really in
10:11
response to how would you do this if we sent
10:11
your investigators out was Julie Roe. I don't
10:11
recall anyone else actually speaking up and
10:11
saying we can't, we shouldn't do this.
10:11
Q. Did anyone privately say that to
10:11
you?
10:11
10:11
A. I don't know. I can't recall
10:11
talking about this with others. I don't think
10:12
so.
10:12
Q. Do you recall talking to anyone
10:12
outside of NCAA's structure about these issues
10:12
and expressing any concerns?
10:12
A. Well, sure. I don't mind -- I mean,
10:12
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it's never been a secret. So anybody I've

10:12
talked to about these, I would have said I
10:12
thought it was not the way to go in the
10:12
beginning, and I'm now convinced and will
10:12
testify. I mean, I know this stuff better than 10:12
most and can say unequivocally that the
10:12
eligibility committee had authority to do this. 10:12
But, yes. Anyone who would have
10:12
asked me would have probably heard some
10:12
reference to me not being onboard in the
10:12
beginning.
10:12
Q. We may get back to that later on.
10:12
There was a rebuttal to your
10:12
expressed view, correct?
10:13
A. Well, there were lots of rebuttals.
10:13
But I think the overarching view of Mark Emmert
10:13
was that he needed to attempt to pursue this
10:13
matter further, that there were integrity
10:13
issues at stake with the association on this
10:13
matter.
10:13
Q. Was Mark Emmert the lead voice in
10:13
rebuttal to your concerns?
10:13
MR. KOWALSKI: I just caution you
10:13
not to reveal any privileged communications 10:13
about these meetings.
10:13
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A. Yeah, I think -- well, in that

10:13
regard, I think I have to limit it to Mark.
10:13
Q. That's fine.
10:13
I can ask it this way: Setting
10:13
aside -10:13
A. I would say to you that didn't
10:13
persuade me. I think I know as much about this
10:14
or more than anyone who was in the room. So
10:14
there were rebuttals that came.
10:14
Q. I'm asking whether, in your view,
10:14
Mark Emmert was the lead most vocal, most
10:14
strident proponent of no, we need to plot, we
10:14
need to move forward?
10:14
A. He was the proponent of it is
10:14
essential that we find a way to address this
10:14
issue.
10:14
Q. And he viewed that as a matter of
10:14
the NCAA's ability to be a real regulatory
10:14
force, is that what you were saying?
10:14
10:14
Q. You can answer.
10:14
MR. KOWALSKI: Sure. But he already
10:14
did. He can do it again.
10:14
A. I think it was framed in the -- in a
10:14
manner to indicate that there was sufficient
10:14
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outrage and concern around the country that it

10:15
was imperative for the NCAA to evaluate every
10:15
possible avenue to address this issue.
10:15
Q. Now, am I right that the backdrop of 10:15
these early conversations were media reports,
10:15
inquiries asking what is the NCAA going to do
10:15
about this?
10:15
10:15
A. I don't know the full scope of
10:15
information available. For me, it was the
10:15
public reports. So I knew of those and I had
10:15
seen them. But I don't know anything about
10:15
other conversations that may have taken place
10:15
or calls that others may have received about
10:15
it. I don't recall people calling me saying
10:15
anything. I think I was just reading it.
10:15
Q. If you know, in expressing his
10:15
views, did Dr. Emmert indicate that the image
10:15
of NCAA could be tarnished somehow if it did
10:16
not act in this case?
10:16
10:16
A. The -- I would object to the way you 10:16
put it. I think he thought it important for
10:16
the NCAA to demonstrate that it has the ability
10:16
to address this kind of matter.
10:16
16 (Pages 58 to 61)
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Q. I want to ask, I suppose, a related

10:16
question. At about this time, was NCAA in the
10:16
process of rewriting many of its regulations
10:16
and bylaws, including on enforcement and
10:16
including on infractions?
10:16
10:16
A. At this juncture, it had followed a
10:16
presidential retreat, and there were several
10:16
working groups that were -- that had various
10:16
assignments. One was on enforcement related
10:17
to, you know, re-categorizing the levels of
10:17
violations to make more clear how -- or how
10:17
serious particular breaches of NCAA rules might 10:17
be considered.
10:17
There was also an effort to
10:17
so-called deregulate or shift some of the
10:17
responsibility for interpreting how to apply
10:17
NCAA rules back to institutions and conferences 10:17
from the national organization, so there was
10:17
sort of a decentralizing effort among the
10:17
committee. But those were very preliminary at
10:17
this point. When these meetings took place, we 10:17
were 2 months following the -- no, not 2
10:17
months, August to -- we were closing in on 4 or 10:17
5 months since that retreat had taken place.
10:18
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MR. KOWALSKI: Matt, if we're going

10:18
to go into the working group stuff for a
10:18
while, let us know when we can take a break 10:18
in the next few minutes. We've been going
10:18
over an hour. Just want to take a bathroom 10:18
break.
10:18
MR. HAVERSTICK: Yeah, that's fine.
10:18
Is that convenient for you?
10:18
THE WITNESS: That's fine.
10:18
(A short break was had.)
10:18
MR. HAVERSTICK: Back on the record.
10:33
Q. I'd like to ask a couple of
10:33
questions about the presidential retreat that
10:33
you mentioned. That happened in -10:33
A. August of 2011.
10:33
Q. Okay.
10:33
A. Maybe 9, 10. 10 was one of the
10:33
days. I'm not sure which it is.
10:33
Q. If I'm capturing this correctly, as
10:33
a result of, at least in part, that retreat,
10:33
there were then efforts to revise or draft new
10:33
legislation policies, et cetera?
10:34
A. Well, there were several initiatives 10:34
that resulted in, I think, five working groups
10:34
being established of presidents on various
10:34
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subjects for follow-up. So one of those was an 10:34

effort to evaluate the NCAA manual and figure
10:34
out how many pages we could take out of the one 10:34
you touched earlier and either reassign
10:34
responsibility for those rules to institution's
10:34
autonomy or conferences and otherwise simplify
10:34
the manual.
10:34
Q. What were the other four initiatives 10:34
that came out of the -10:34
A. You know, I knew you were going to
10:34
ask me that. One was student athlete
10:34
well-being. One was what we just mentioned,
10:34
the rules working group. One was related to
10:35
use of the resources.
10:35
I think there was one related to
10:35
academics as well that had been assigned
10:35
primarily to an existing group. And another
10:35
one, which I don't recall off the top of my
10:35
head.
10:35
Q. Do you recall if it has anything
10:35
apropos to anything that we're talking about
10:35
today with respect to enforcement, sanctions,
10:35
et cetera?
10:35
10:35
A. Oh, good point. The one I forget.
10:35
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Yes, it was one that was to review both to

10:35
clarify current NCAA processes and to rewrite,
10:36
I think, the penalties in a manner that could
10:36
be better understood than we had already made a 10:36
shift from -- kind of going the long route -10:36
but secondary and major infractions and
10:36
presumptive penalties, which I wrote all of, to 10:36
a more simple list, I guess, of all of the same
10:36
penalties but without those kinds of words so
10:36
nobody got confused about what's presumptive
10:36
mean.
10:36
And then into levels, four levels of
10:36
penalties and characterization of violations
10:36
that could be set forth in Level 1, 2, 3, or 4
10:36
that would have something like a schedule of
10:36
penalties that might apply to those kinds of
10:36
matters.
10:37
Q. Who had responsibility following the
10:37
presidential session to work on that rewrite?
10:37
A. There -- I don't recall all of the
10:37
members of the committee. Ed Ray who was the
10:37
president at Oregon State and chair, I think,
10:37
of the executive committee at the time when it
10:37
started, and Julie Roe was the liaison to that
10:37
group, Robin Green-Harris who had been a
10:37
17 (Pages 62 to 65)
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David Berst
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previous staff member of mine in governance and 10:37

who also had been a previous staff member for
10:37
the committee on infractions at the NCAA, Lou
10:37
Anna Simon who's president at Michigan State
10:37
University, and then I'm lost.
10:37
Q. Was a policy goal underlying these
10:38
rewrites? I'm talking about only this fifth
10:38
category, in part, that NCAA wanted to provide
10:38
clarity in the rules?
10:38
A. You're talking about enforcement?
10:38
Q. Correct. The last category that
10:38
we're talking about that Lou Anna Simon was
10:38
working on and those rules rewrites, tiering or 10:38
bracketing, or however you described it.
10:38
A. I don't know that I know the charge. 10:38
There was a charge to the group, and I'm sure
10:38
Julie would know chapter and verse of what it
10:38
was that it was to do.
10:38
I attended some of the meetings, but
10:38
I would guess -- I'm not sure of that because I 10:38
think they ended up eliminating bylaw 32 at
10:38
some point in that exercise. I don't know if
10:38
that clarifies or not.
10:38
Q. What's bylaw 32?
10:38
A. It was the investigative practices
10:38
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and policies.
10:38
Q. Do you know why that bylaw was
10:38
eliminated?
10:39
A. No. It will be clear in their
10:39
reports, but no, I don't know.
10:39
Q. And you said that you were in some
10:39
of the meetings or where, I suppose, the
10:39
impetus of some of the ideas for why there
10:39
would be rewrites for this particular section
10:39
was broached?
10:39
A. Yes, I was present.
10:39
Q. Was a theme for why rewrites, again
10:39
in this category, necessary in part that NCAA
10:39
wanted to be firmer or more strict or otherwise
10:39
be viewed as a more potent enforcer -10:39
10:39
Q. -- in the realm of college
10:39
athletics?
10:39
10:39
A. I'd have to defer to Julie on that.
10:39
I don't know what the precise thinking was. To
10:39
me, the categorizations of penalties seemed
10:40
clearer, but I don't know what that necessarily
10:40
demonstrated over what the view of enforcement
10:40
was prior to that.
10:40
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Q. I'm asking whether in any of these

10:40
working group sessions, anyone ever articulated
10:40
a sentiment such as, we should do this rewrite
10:40
because this will reinvigorate our rules and
10:40
sanctions process or will make it tougher, or
10:40
something that suggested the rewrite was
10:40
necessary to make NCAA a more potent enforcer?
10:40
And I'm obviously characterizing it, this would
10:40
have been my language, but I wanted to know if
10:40
anybody ever expressed that sentiment even
10:40
informally in these working sessions for why
10:40
you might want to rewrite these rules?
10:40
10:40
A. And I can't answer you. I just have
10:40
to speculate on that. I didn't attend all, I
10:41
attended some of those meetings. And the NCAA
10:41
enforcement program has always been considered
10:41
potent. I was considered potent when I would
10:41
have told you I wasn't potent. So the
10:41
initiatives in enforcement are always intended
10:41
to provide clarity and some renewed confidence
10:41
in the program. But how that manifests itself
10:41
or what people said, I don't know.
10:41
Q. The testimony you just gave, was
10:41
that your speculation for why these particular
10:41
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rules were being rewritten? If not, I'd ask

10:41
you to speculate.
10:41
10:41
A. Yeah, and I really would be
10:41
speculating.
10:41
Q. That's okay.
10:41
A. I'm trying to tell you I don't know. 10:41
Q. That's okay. I'm interested in
10:41
speculation too.
10:41
A. Well, I'm not going to go that far.
10:41
I'll give you some impressions here and there,
10:41
but I don't want to just guess.
10:41
Q. How about your impression? Was it
10:42
your impression that one policy rationale
10:42
behind the rewrite of these rules was to
10:42
articulate firmer, tougher rules for member
10:42
institutions?
10:42
10:42
If you have an impression.
10:42
Q. Yeah, if you do.
10:42
A. I don't have that impression. I saw 10:42
rules that were articulated in different forms, 10:42
but I didn't say anything that provided new
10:42
penalties or areas where somehow the NCAA could 10:42
do something different than now it can do.
10:42
18 (Pages 66 to 69)
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They have the same penalties and have had for

10:42
50 years.
10:42
Q. Was there any impression or
10:42
sentiment among your colleagues that NCAA was
10:42
viewed by the outside world as a less than
10:42
tough enforcer of rules in college athletics?
10:42
MR. KOWALSKI: Is this at the
10:42
retreats or ever, generally?
10:43
Q. In life, in life.
10:43
A. I've seen Jim Delany from the Big
10:43
Ten quoted in that regard. I've seen Bob
10:43
Bowlsby quoted along those lines more recently. 10:43
That's probably post Penn State kinds of
10:43
issues. I also have seen some writings by John 10:43
Duncan about what the actual facts would
10:43
indicate which seem to me to show that
10:43
enforcements continue to be viable, effective
10:43
and a worthy service to our membership.
10:43
So I can't -- I don't have whatever
10:43
you're asking me for.
10:43
Q. Well, I'm not sure anybody does.
10:43
Here's one that you may or -10:43
MR. KOWALSKI: Then objection.
10:43
Q. If you know, did Dr. Emmert have any 10:43
concern that there was a perception among folks 10:43
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like Jim Delany that perhaps the NCAA was not

10:44
the enforcer it should be?
10:44
10:44
A. I don't have any way of trying to
10:44
think through what Mark Emmert had in his mind. 10:44
I believe he, like everyone else, believes that 10:44
the NCAA enforcement program needs to be
10:44
viable, efficient, and have credibility. And I
10:44
think that's an important principle.
10:44
Q. Let's move ahead to -- back to the
10:44
early November meetings that we were discussing 10:44
before.
10:44
And I think we established that Mark
10:44
Emmert was perhaps a lead voice in pushing back 10:44
against your suggestion that let's think about
10:44
whether we have jurisdiction or whatever word
10:44
we're using.
10:44
10:44
A. Yeah, and I never said to you that
10:44
we didn't have jurisdiction. I said I objected
10:44
to the manner by which they may want to move
10:45
forward in the enforcement program at that
10:45
time. But the -- if where you're going with
10:45
that is somehow is this because the NCAA needed 10:45
to look tougher? I take it that's where you're
10:45
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trying to go, and that wasn't my impression.

10:45
My impression was that there was a
10:45
demand from the public, from virtually
10:45
everybody. And I can't think of any single
10:45
source that didn't say the NCAA needs to be
10:45
able to react to this kind of a matter that it
10:45
undermines intercollegiate athletics, period.
10:45
And I think he was impacted by that and
10:45
believed that the association needed to attempt
10:45
to process this matter forward.
10:45
Q. I actually wasn't asking you, but I
10:45
do appreciate the answer because I think it is
10:45
helpful in understanding what you-all were
10:46
thinking about.
10:46
Mark Emmert, in other words,
10:46
believed that NCAA needed to respond to this
10:46
situation?
10:46
A. I believe so, yes.
10:46
Q. In Mark Emmert's early articulation
10:46
of this notion, did he begin to inject into the
10:46
discussion the concept of lack of institutional
10:46
control as one that could lead to sanctions?
10:46
10:46
A. I don't recall. That's the obvious
10:46
possibility, and I don't know whether I would
10:46
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have said that or he would have said that or

10:46
anyone thoughtful trying to think of ways. The
10:46
only directions would be institutional control
10:46
and/or -- and even more overarching principle
10:46
in constitution 2 possibly.
10:46
Q. And what is that principle? Tell
10:47
me, please.
10:47
A. I'd have to paraphrase. But it
10:47
relates to conducting programs with integrity
10:47
and fairness and compliance with NCAA rules.
10:47
Q. If you -- is it accurate that what
10:47
we're talking about is the idea that somebody
10:47
articulated those principles as ones upon which
10:47
sanctions or enforcement could be based, you're
10:47
just not sure right now who it was that put it
10:47
on the table?
10:47
A. Those items were at least part of
10:47
the discussion, and I don't know where it came
10:47
from.
10:47
Q. And early on? We're talking
10:47
essentially in the very beginning of the
10:47
conversations about how NCAA should react?
10:47
A. I don't recall precisely the order
10:47
of meetings, and my guess is we had a couple
10:47
around that time that included all of the
10:47
19 (Pages 70 to 73)
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people you're making reference to. So I don't

10:47
know which came first, but I'll put those two
10:48
meetings together.
10:48
Q. For my purpose, it doesn't matter.
10:48
I just want to make sure I'm hearing you right,
10:48
that it was -- it wasn't later in 2012 that the
10:48
idea of enforcement being tied to lack of
10:48
institutional control or broader institutional
10:48
issues came up as a possibility for how to move
10:48
forward? It was really back in this early
10:48
couple of meetings by somebody?
10:48
10:48
A. I believe that it was because the
10:48
eventual letter that gets submitted to the
10:48
school I think, in my recollection, makes
10:48
reference to those rules.
10:48
Q. Let's -- let me ask you about that
10:48
letter.
10:48
MR. HAVERSTICK: I'll tell you what,
09:05
just so we have it, can we mark as Exhibit 3,
10:48
Tab 9.
10:48
10:48
identification.)
10:49
Q. There you go.
10:49
A. I've read it. I see it.
10:50
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Q. Some questions about the top cover

10:50
email. Who is Crissy Schluep? It's my German
10:50
slipping out.
10:50
A. She was an assistant to the
10:50
president and maybe others at that point. So
10:50
she would have been passing this information
10:50
along to the individuals who were next to the
10:50
"To" and cc line.
10:50
Q. And you, in turn, receive the letter 10:50
and forward it to three other folks: Greg
10:50
Shaheen, is it Dennie "Pop" or "Poppy"?
10:50
A. "Pope."
10:50
Q. "Pope." Third time lucky. And
10:50
Jackie Campbell. I know I can say that right.
10:51
Who are those people?
10:51
A. Those are additional vice presidents 10:51
and then my assistant in governance.
10:51
Q. Why did you chose to send it to
10:51
those three people, if you remember?
10:51
A. I don't remember, but it would have
10:51
been because they were missing in the first
10:51
instance by Crissy, and they may well become
10:51
aware of these issues. Greg Shaheen was
10:51
involved in all of the championships area.
10:51
Dennie Poppe was vice president related to
10:51
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football and baseball and would have interacted 10:51

with a number of folks at Penn State, and
10:51
Jackie because she and I would be involved in
10:51
anything that later pertained to governance.
10:51
Q. Turning to the letter itself, did
10:51
you have any role in drafting this document?
10:51
A. I don't know. I don't believe so.
10:51
Q. Do you know who did, who wrote it?
10:51
A. I do not specifically.
10:52
Q. You -10:52
A. It looks like Mark Emmert, the way
10:52
the -- at the bottom, it has a couple of
10:52
initials, and then DBY would be the person who
10:52
typed it.
10:52
Q. He signed it. But if it was -- if
10:52
there was input from other folks about the
10:52
actual language, you don't today know of
10:52
anybody else who might have participated in
10:52
drafting the letter?
10:52
A. I don't recall me doing it, but I
10:52
don't know who else might have.
10:52
Q. You told us in the beginning of our
10:52
discussion today what a notice of inquiry
10:52
letter looked like.
10:52
10:52
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10:52
identification.)
10:52
Q. Is this a notice of inquiry letter?
10:52
A. No. And that was my doing.
10:52
Q. Tell me, please. Tell me.
10:53
A. I said whoever follows up, if you're 10:53
going to write a letter to Penn State, do not
10:53
do it under enforcement, enforcement auspices.
10:53
Q. Why did you say that?
10:53
A. Because no one at that stage knew
10:53
how this might be pursued. And while this is
10:53
drafted and sent to Penn State to gather some
10:53
information, in my view, that was just for the
10:53
benefit of the president of the association to
10:53
then begin to understand the case well enough
10:53
to know where to refer it.
10:53
Q. You did not -- you did not at this
10:53
time, November 17, 2011, believe that it was
10:53
the right time to commence an enforcement
10:53
action?
10:53
10:53
A. I did not believe that the
10:53
enforcement mechanism -- I continued to believe
10:53
at that time that the enforcement mechanism
10:54
should not be used. And tried to make that
10:54
20 (Pages 74 to 77)
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David Berst
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point and made the point that to the extent

10:54
possible in follow-up, keep it independent of
10:54
enforcement. If you want to employ enforcement 10:54
later on, so be it. But I saw a number of
10:54
cumbersome steps that had to take place if you
10:54
were going to do that. And the more
10:54
appropriate route in my view was to just
10:54
collect information, figure out what you have,
10:54
cite whatever you would like as references to
10:54
the bylaws for information, but then once you
10:54
receive the response, figure out what to do
10:54
next.
10:54
Q. When did you learn roughly, we don't 10:54
have to have mathematical precision, when did
10:54
you learn roughly that this letter or a letter
10:54
like this was going to be sent to Penn State?
10:54
A. I think all of the conversation
10:54
we're talking about, it probably wasn't the
10:55
first meeting, but I would guess second meeting 10:55
in a day or two or even in the same period of
10:55
time we ran through what people were thinking
10:55
about and wherever someone said, well, we
10:55
should inquire of the institution, I said, my
10:55
response was to do it separate from
10:55
enforcement. Do not have Julie Roe send this
10:55
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thing out.
10:55
Q. Did anyone advocate for considering
10:55
this to be an enforcement letter or letter sent 10:55
out under the enforcement division's auspices?
10:55
MR. KOWALSKI: I object and caution
10:55
you not to reveal the contents of any
10:55
privileged communications involving Donald
10:55
Remy or other NCAA legal counsel.
10:55
A. Well, as sometimes happens, I speak
10:55
and give my opinions. And mostly everybody is
10:55
nonresponsive. So I don't know -10:55
Q. I get that too.
10:56
A. -- what other conversations took
10:56
place. Nobody pushed back necessarily, but I
10:56
had no idea whether they followed my advice.
10:56
Q. So without getting into any
10:56
conversations with Donald Remy regarding legal
10:56
advice, it's your recollection that no one was
10:56
suggesting that we should send this under
10:56
enforcement auspices; to the contrary, when the
10:56
issue of a letter came up, you were saying, if
10:56
you do it, don't do it under enforcement?
10:56
10:56
Go ahead.
10:56
A. I think someone would have said it
10:56
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could go out from Julie, and it could if you

10:56
were trying to pursue it in that manner. I
10:56
don't know who said that, but I objected
10:56
strenuously to that notion.
10:56
Q. So your recall is there may have
10:56
been some effort to have this be some
10:56
enforcement -- have this letter come under the
10:56
auspices of enforcement but it was rejected
10:57
after you rejected it?
10:57
10:57
A. No. And all of this discussion was
10:57
what can we do? What should we do? What
10:57
options are available?
10:57
Q. Okay.
10:57
A. So nobody was saying here's what's
10:57
going to be done. And I gave my opinion to be
10:57
considered by those who were going to make
10:57
decisions. I wasn't one of those people, but I 10:57
believe I know the processes better than anyone 10:57
else and could at least keep them out of a
10:57
little bit of trouble until we better assess
10:57
what the circumstances of this matter is in
10:57
order to properly consider further steps.
10:57
Q. What little bit of trouble did you
10:57
think they might get into if they did this a
10:57
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different way?
10:57
A. I was worried that attempting at the
10:57
outset to put it in the enforcement realm would 10:57
have all kinds of procedural restrictions that
10:57
would make it very difficult that I mentioned
10:58
earlier, like having interviewed directly the
10:58
named individuals who were probably going to be 10:58
involved in criminal activities, had lawyers
10:58
who were going to say we're not going to talk
10:58
to the NCAA until all of these things are over, 10:58
which would mean nobody is going to get an
10:58
answer to this letter for about 2 or 3 or 4 or
10:58
5 years.
10:58
Q. So in part, your concern was based
10:58
on the idea that invoking the enforcement
10:58
process would make it less likely to get useful 10:58
information from Penn State University?
10:58
10:58
A. Nope, I don't think that's what I
10:58
said. What I was trying to find is a mechanism 10:58
for the president of the association to gain
10:58
further information about what actually
10:58
occurred or what the circumstances were, what
10:58
the positions were of the institution in order
10:58
to determine how to process this further.
10:58
21 (Pages 78 to 81)
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I did object to the notion that

10:59
there should be a choice made to head this down 10:59
the enforcement -- through the enforcement
10:59
mechanism. I wanted to wait and see what the
10:59
response was. And then if I could be of
10:59
assistance in trying to move it along at that
10:59
point, that was my intention.
10:59
Q. At that point, your intention was
10:59
to, once information had developed, move it
10:59
towards the enforcement realm presuming that
10:59
there was something to enforce?
10:59
10:59
A. No. My position was that I would
10:59
assess the response and provide guidance based
10:59
on what that response would be as to next
10:59
steps. And I was trying to keep it separate
10:59
from the enforcement program to leave all
10:59
options open.
10:59
Q. At this time, it is already being -10:59
at the time of the letter, rather, it is
11:00
already being contemplated that NCAA will act
11:00
or may act against Penn State, right?
11:00
11:00
A. I don't think I could go that far
11:00
because I was still thinking that you may well
11:00
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get responses back that you think are fine,

11:00
appropriate, the institution is doing the right 11:00
thing. I thought it's possible you could even
11:00
conclude, I'll be supportive of what the
11:00
institution is doing and one option could be go
11:00
no further.
11:00
Q. I appreciate that answer. I really
11:00
do, but I want to establish that I'm right up
11:00
here, pointing to my head, with something.
11:00
In your early discussions in these
11:00
meetings that we're talking about, there had
11:00
been expressed I believe you said by Dr. Emmert
11:00
the idea that the NCAA should act. Is that
11:00
accurate?
11:00
A. It is. And I'll go ahead and answer 11:01
the rest of that which is that one of those
11:01
options would be to be supportive of an
11:01
institution based on the information that's
11:01
gathered. So those options include, thank you
11:01
for the information. You've adequately
11:01
addressed institutional control. We believe
11:01
you're on the right track. Let's talk about
11:01
what other actions you're going to take, and
11:01
we'll do the best we can to support you in that
11:01
realm.
11:01
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One action could be to assign it to

11:01
enforcement and ask enforcement to submit a
11:01
letter of preliminary inquiry.
11:01
Another could be to send it to the
11:01
executive committee and to have the executive
11:01
committee consider the matter under its
11:01
authority to act on association-wide matters.
11:01
And there's probably a fourth or
11:01
something that's not even coming to mind, but
11:01
all of those were possible options at that
11:01
point.
11:01
Q. Given that there was a possible
11:01
option that enforcement could become
11:01
involved -11:02
A. I just remembered the other.
11:02
Q. Go ahead.
11:02
A. The other one would be stipulated
11:02
agreement that would lead you to a summary
11:02
disposition process through enforcement. So
11:02
there's a shortcut enforcement program
11:02
opportunity as well.
11:02
Q. Would that be kind of like a consent
11:02
decree?
11:02
11:02
A. In a -- we'll get there eventually.
11:02
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Q. I imagine.
11:02
A. But no, it isn't.
11:02
Q. They're different?
11:02
A. It only is consistent in the sense
11:02
that you agree on stipulated findings. How you
11:02
process it is different.
11:02
Q. But it's an agreement between the
11:02
parties on what a disposition is for a case?
11:02
A. That's the first step, yeah.
11:02
Q. Well, let me get back to where I was 11:02
heading with my original question along these
11:02
lines.
11:02
Given that enforcement was a
11:02
possibility as an outcome for what happened or
11:02
what might result from the information you
11:02
learned from this letter, in your experience at 11:02
the NCAA, have you ever seen a letter like this
11:03
go out where enforcement -- enforcement's
11:03
involvement is possible down the road?
11:03
11:03
A. Yes. I think it's not unusual for
11:03
correspondence to result later in some sort of
11:03
an action by enforcement. That could have come
11:03
from me in that role, simply asking the
11:03
question out of curiosity when something would
11:03
22 (Pages 82 to 85)
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David Berst
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come up. But it could come up from any

11:03
correspondence from executive director or
11:03
president, another vice president, two schools, 11:03
you know, asking each other questions. Sure.
11:03
Q. Can you cite an example for me of a
11:03
time where the president of the NCAA wrote to a 11:03
member institution asking questions outside of
11:03
the enforcement context but where the answers
11:03
might lead to the enforcement context?
11:04
11:04
A. I don't know how -- I don't think I
11:04
can off the top of my head, no.
11:04
Q. Okay.
11:04
A. I believe that such things have
11:04
occurred, and I've even done it myself. But I
11:04
can't -- I don't know that I can think back of
11:04
how I started a case that way either.
11:04
Q. Were you -11:04
A. I mean, in case files, you go to the
11:04
very first document and that's where that
11:04
answer would come from.
11:04
Q. So we could theoretically you
11:04
believe that there are case files where rather
11:04
than the notice of inquiry letter, there is
11:04
some other letter that looks like this but
11:04
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specific examples, off the top of your head,

11:04
you don't recall?
11:04
11:04
A. You will have a whole host of cases
11:04
that will start with combination of
11:04
correspondence, articles, some allegations
11:04
submitted by others, that that would be in the
11:04
beginning of how you become aware of potential
11:05
violations, and it would be short of filing
11:05
that letter of preliminary inquiry that I
11:05
indicated before.
11:05
Q. So this, you would not characterize
11:05
this letter as unique or unprecedented?
11:05
11:05
A. No, I wouldn't.
11:05
Q. Okay. Flipping through, there are
11:05
references to bylaws that may be implicated by
11:05
the conduct associated with Jerry Sandusky and
11:05
Penn State. Were you asked for input for
11:05
purpose of this letter to denote any bylaws
11:05
that you believed might be implicated by the
11:05
conduct?
11:05
MR. KOWALSKI: Objection. Caution
11:05
you not to reveal the contents of any
11:05
privileged communications with Donald Remy
11:05
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in answering the question.

11:05
A. I was not.
11:05
Q. Do you know who was?
11:05
MR. KOWALSKI: Same objection.
11:05
A. I do not.
11:05
Q. Do you recall seeing a draft of this
11:06
letter before it was sent?
11:06
A. No, I don't.
11:06
Q. You weren't asked to review it
11:06
before it went out?
11:06
A. I don't recall being asked.
11:06
Q. Would it -11:06
A. It's not impossible, but I don't
11:06
recall it.
11:06
Q. Nothing unusual about you not being
11:06
asked to review a letter like this before it
11:06
would go out?
11:06
A. No, there is nothing unusual about
11:06
that.
11:06
Q. Okay.
11:06
A. I'm not necessarily in the -11:06
considered among the leadership that might make 11:06
those decisions. I'm a vice president level,
11:06
not a senior or a vice president -- senior or
11:06
executive vice president.
11:06
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Q. Who is in that leadership group?

11:06
A. Well, at this time, would have been
11:06
Mark Emmert obviously, Wally Renfro, Jim Isch,
11:06
Donald Remy, possibly Greg Shaheen.
11:07
Q. You don't have any knowledge of
11:07
whether those individuals collaborated or
11:07
reviewed this letter? We're just talking in
11:07
general about who would be in the control
11:07
group.
11:07
A. I do not. I don't know.
11:07
Q. After the letter was sent, were you
11:07
ever asked or -- were you ever asked about the
11:07
four questions that are on Pages 2 or 3?
11:07
MR. KOWALSKI: And caution you not
11:07
to reveal the contents of privileged
11:07
communications with legal counsel.
11:07
A. I don't recall that, no.
11:07
Q. Is it your understanding that NCAA
11:07
desired answers to these questions before it
11:07
would decide what steps it would take, be that
11:07
enforcement, be that one of the other options
11:08
that you testified to a few minutes ago?
11:08
11:08
A. Well, I would say to you that this
11:08
was an attempt by Mark Emmert to collect
11:08
23 (Pages 86 to 89)
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David Berst
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information to try and come to some conclusion

11:08
or some decision on how or where to refer that
11:08
information.
11:08
Q. I'll put a placeholder in here, I'll
11:08
ask it later when we talk about Gene Marsh.
11:08
I'm going to ask it now in case I forget.
11:08
Do you know if Penn State ever
11:08
specifically answered these questions?
11:08
A. I don't recall that they did. I
11:08
recall, I believe, that there was a request to
11:08
at least answer them later because there were
11:09
other processes that the university was
11:09
involved in that they wanted to complete before
11:09
being required to respond. I think the notion
11:09
was that they would respond eventually. But I
11:09
think that other events took place and rendered
11:09
this, these -- this correspondence basically
11:09
moot, I think.
11:09
Q. To your knowledge, these questions
11:09
were not answered by Penn State prior to the
11:09
consent decree's making?
11:09
11:09
A. That's at least my thinking,
11:09
understanding. I mean, you could show me
11:09
something to persuade me otherwise. But I
11:09
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don't recall that it was.

11:09
Q. What would have happened to Penn
11:09
State -- this is, I'm asking you to speculate,
11:09
unless it was discussed, of course, what would
11:10
have happened if Penn State simply refused to
11:10
answer the letter?
11:10
11:10
Hypothetical.
11:10
A. Yeah, that is completely
11:10
hypothetical. I thought at the time that that
11:10
is a possible response that could come, but I
11:10
didn't go any further with that speculation.
11:10
Q. Other than speculating that Penn
11:10
State might not respond, you never speculated
11:10
what NCAA's response could or should be?
11:10
A. I did not, no.
11:10
Q. Now, you testified that there are -11:10
that letters such as this are not unique?
11:10
A. Correct.
11:10
Q. Do you recall any other situations,
11:10
if not specifically, generally, where a member
11:10
institution was sent a letter like this and
11:10
chose not to respond?
11:10
11:10
A. I probably have similar occasions
11:10
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myself, and I probably had enough at least

11:10
clout to require a response under our
11:10
procedures that permit us to demand a response.
11:11
But that's in the enforcement program. I don't
11:11
know that that could have applied in this
11:11
circumstance.
11:11
Q. Right. Because this isn't an
11:11
enforcement letter; this is something outside
11:11
of the enforcement process?
11:11
A. Yes.
11:11
Q. Are you aware of any bylaw or NCAA
11:11
mechanism that would require a member
11:11
institution to respond to a letter like this
11:11
one?
11:11
11:11
A. I am not aware of that, no.
11:11
Q. Okay. Now, I'm sorry. And please
11:11
keep this on the record. And I apologize,
11:11
Mr. Berst. I'm doing this actually in an
11:11
effort to make sure we get out of here in a
11:11
timely fashion.
11:11
MR. HAVERSTICK: You know, Counsel,
11:11
I'm sorry. Tell me your name again.
11:11
MR. KOWALSKI: Allen Gardener, I was
11:12
here all day yesterday.
11:12
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MR. HAVERSTICK: Thanks, Allen. I

11:12
know you're not as familiar with the case, 11:12
and you may not know it, that the judge in 11:12
this case entered an order some time ago in 11:12
October -11:12
MR. KOWALSKI: I'm sorry, is this a
11:12
question?
11:12
MR. HAVERSTICK: It's a comment and
11:12
then I'll finish and then you can talk, if 11:12
you want. The judge's order -- Brian,
11:12
speak up, you're familiar with it -- in
11:12
spirit at least, requires us to be
11:12
cooperative in discovery. And here's the
11:12
thing. And I'll let it -- I'll be sporting 11:12
and I'll let you guys choose how you want
11:12
to proceed here.
11:12
MR. KOWALSKI: Yeah, we sure will
11:12
answer, so go ahead.
11:12
MR. HAVERSTICK: There's really
11:12
Option A and Option B. Option A is there's 11:12
unspoken objections or laughing or
11:12
commentary, pantomime from your counsel -11:12
MR. KOWALSKI: Hold on. No, no, no,
11:12
this is -11:13
THE WITNESS: Are we talking about
11:13
24 (Pages 90 to 93)
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David Berst
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this?
11:13
MR. HAVERSTICK: No, not you, sir.
11:13
Option B is we act like
11:13
professionals, no snickering. We don't
11:13
laugh.
11:13
MR. KOWALSKI: There's no
11:13
snickering. You're getting notes passed
11:13
back and forth. We're doing the same
11:13
thing. We're just not doing it with notes. 11:13
I have not snickered. I have shrugged a
11:13
few times, and I will continue to shrug in
11:13
response to questions from my co-counsel
11:13
that require a shrug.
11:13
MR. HAVERSTICK: So then you're
11:13
choosing Option A, which is you're going to 11:13
do pantomime and other high jinx -11:13
MR. KOWALSKI: That's garbage, and
11:13
you know it. In fact, that's beyond
11:13
garbage. That's a complete fabricated
11:13
misrepresentation. I would suggest you
11:13
focus on your questions and not me
11:13
kibitzing with my co-counsel as you are
11:13
with yours.
11:13
MR. HAVERSTICK: That's good you
11:13
characterize it that way. I appreciate it. 11:13
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So that's your option. Option A is you

11:13
keep kibitzing, and I'm going to put it on 11:13
the record, and if there's an issue down
11:13
the line in a deposition -11:14
MR. KOWALSKI: You know, I would
11:14
like to swear him under oath and get some
11:14
of this under oath because that was a
11:14
blatant fabrication. If that's what he
11:14
thinks he witnessed, I want it under oath
11:14
because that's not true.
11:14
MR. HAVERSTICK: Option B -- and I
11:14
prefer Option B -- is that we act like
11:14
professionals. And Brian, I appreciate -- 11:14
MR. KOWALSKI: This is
11:14
unprofessional. Misrepresenting what's
11:14
going on in this room is unprofessional.
11:14
MR. HAVERSTICK: Well, that's the
11:14
whole point. We're either going to act
11:14
like professionals -- and, Brian, I
11:14
appreciate today that your objections have 11:14
not been speaking objections. We're moving 11:14
right along.
11:14
MR. KOWALSKI: Your questions are
11:14
better, if that helps.
11:14
MR. HAVERSTICK: If we're going to
11:14
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act like professionals, we're all going to

11:14
act like professionals, and we'll get done
11:14
and we're free to say anything we want
11:14
about each other later on, and that's the
11:14
option I choose because I'd like to be done 11:14
with this. I believe you are all
11:14
professionals. But if you choose Option
11:14
A -- and I'm using your word -- more
11:14
kibitzing, I'm going to start putting it on 11:14
the record. And I'm going to note for the
11:14
record -11:14
MR. KOWALSKI: Go ahead. But at
11:14
least be accurate.
11:14
11:14
MR. KOWALSKI: Don't misrepresent
11:14
anymore.
11:15
MR. HAVERSTICK: Sure, I won't. I
11:15
don't think I have. I know I haven't.
11:15
MR. KOWALSKI: It's been nothing
11:15
but.
11:15
MR. HAVERSTICK: I'm going to put it
11:15
on the record, and then we'll let the judge 11:15
see what she thinks about it and we'll let
11:15
the judge decide whether she thinks your
11:15
conduct, or anybody's conduct, mine, hers,
11:15
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anybody else's has been in the spirit of

11:15
her October 5 order.
11:15
MR. KOWALSKI: Matt, hold on.
11:15
MR. HAVERSTICK: Brian, I'm not
11:15
done.
11:15
MR. KOWALSKI: You spoke about 10
11:15
minutes straight.
11:15
MR. HAVERSTICK: Brian, I'm not
11:15
done. I'll tell you when I'm done.
11:15
MR. KOWALSKI: I'll speak when I'm
11:15
ready.
11:15
MR. HAVERSTICK: You're welcome to
11:15
when I'm done. I'm trying to ask questions 11:15
and move things along. As I said, I
11:15
appreciate your professionalism. I don't
11:15
appreciate high jinx and pantomime and
11:15
nonsense, snickering, all this other stuff. 11:15
Sir, if you want to make an
11:15
objection along with Brian, put it on the
11:15
record so your name is attached to it.
11:15
MR. KOWALSKI: I don't need to. I
11:15
can do exactly what you've done with the
11:15
four individuals you have on your side of
11:15
the table.
11:15
MR. HAVERSTICK: Giggle, laugh,
11:15
25 (Pages 94 to 97)
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shrug.
11:15
MR. KOWALSKI: I haven't giggled
11:15
since I was 8 years old.
11:16
MR. HAVERSTICK: How old are you
11:16
today?
11:16
MR. KOWALSKI: Older than you and
11:16
old enough to know crap when I hear it. So 11:16
if you're going to misrepresent and lie,
11:16
let's get the judge on the phone now, I'm
11:16
happy to.
11:16
MR. HAVERSTICK: You want to?
11:16
MR. KOWALSKI: Sure. I will swear
11:16
to exactly what I've done today. I will
11:16
put it under oath. Will you?
11:16
MR. HAVERSTICK: Absolutely.
11:16
MR. KOWALSKI: Then I know what kind
11:16
of person I'm dealing with because what you 11:16
just said is completely untrue.
11:16
MR. HAVERSTICK: Okay. Well, I
11:16
don't think it is.
11:16
MR. KOWALSKI: Let's bring some
11:16
cameras in. I'm happy to be filmed during
11:16
the entire time.
11:16
MR. HAVERSTICK: That's a great
11:16
idea. Let's do that.
11:16
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MR. KOWALSKI: Go ahead.

11:16
MR. HAVERSTICK: Let's do it for the
11:16
next deposition.
11:16
MR. KOWALSKI: Do it now.
11:16
MR. HAVERSTICK: You want to?
11:16
MR. KOWALSKI: Sure. Bring them in.
11:16
MR. HAVERSTICK: Here's why I prefer
11:16
Option B. Option B is where we act civil
11:16
to each other and don't -11:16
MR. KOWALSKI: We were, until you
11:16
started this. If you're going to lie about 11:16
me on the record, expect me to be unhappy
11:16
and less civil.
11:17
MR. HAVERSTICK: That's why we're
11:17
going to make a record from now on of all
11:17
of the stuff, all the sidebar commentary,
11:17
the laughing, all the other stuff so there 11:17
is a record and it's clean and so the judge 11:17
can decide. Is that fair?
11:17
MR. KOWALSKI: It's your deposition,
11:17
you do what you want, but each time you
11:17
misrepresent what happened, expect me to
11:17
respond.
11:17
MR. HAVERSTICK: You'll have your
11:17
opportunity to, if we're making a record,
11:17
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that's the whole point.

11:17
MR. KOWALSKI: Feel free.
11:17
MR. HAVERSTICK: The whole point is
11:17
we have a record of nonsense -11:17
MR. KOWALSKI: Let's do this. Why
11:17
don't we bring in a magistrate and have
11:17
somebody sit here with us if you're
11:17
concerned.
11:17
MR. HAVERSTICK: If you'd like to,
11:17
we can do that.
11:17
MR. KOWALSKI: It would keep you
11:17
honest, which I would appreciate. Let's go 11:17
ahead and agree to split the cost right
11:17
now.
11:17
MR. HAVERSTICK: The difference here 11:17
is I have been honest. You've been
11:17
dishonest, sir.
11:17
MR. KOWALSKI: No, no, no.
11:17
MR. HAVERSTICK: I watched it all
11:17
day yesterday.
11:17
MR. KOWALSKI: You weren't even in
11:17
here yesterday. You were off in the hall
11:17
screwing around. Ask your co-counsel what 11:17
percentage of the deposition you were here. 11:17
Let's ask them all, down the line. Ask
11:17
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them all, down the line. You don't know

11:17
what happened yesterday because you weren't 11:17
here.
11:17
MR. HAVERSTICK: Only makes me think 11:17
that the couple times I wasn't here and saw 11:18
you giggle and snicker -11:18
MR. KOWALSKI: So you didn't see
11:18
what happened all day yesterday? So you do 11:18
admit your earlier statement was
11:18
inaccurate? Are we clear?
11:18
MR. HAVERSTICK: Which one?
11:18
MR. KOWALSKI: That you saw what
11:18
happened all day yesterday as you
11:18
represent.
11:18
MR. HAVERSTICK: I don't think I
11:18
said that actually.
11:18
MR. KOWALSKI: You did. You did.
11:18
And it will be on the record because you
11:18
chose to do this on the record.
11:18
MR. HAVERSTICK: That's the whole
11:18
point. I'd like this on the record. I
11:18
take you at your word that you want it on
11:18
the record too. So that's great. Let's
11:18
keep it on the record.
11:18
MR. KOWALSKI: I've also offered you
11:18
26 (Pages 98 to 101)
877-702-9580
David Berst
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other options that will keep you honest.

11:18
Let's bring in cameras or let's bring in a
11:18
monitor. I'm happy to.
11:18
MR. HAVERSTICK: That's great. If
11:18
you want to delay the deposition -11:18
MR. KOWALSKI: Your entire statement 11:18
was ridiculous and false.
11:18
MR. HAVERSTICK: You know, it seems
11:18
to me that your overreaction to this is
11:18
really kind of the sine qua non of what's
11:18
going on here. I'd like to continue the
11:18
deposition, and I'd like to continue asking 11:18
questions, and I'd like to -11:18
MR. KOWALSKI: You should.
11:18
MR. HAVERSTICK: I'd like to
11:18
continue to expect Brian's very appropriate 11:18
objections and, very frankly, appropriate
11:19
deportment in the way we're conducting the 11:19
deposition. That's all I'm asking. And if 11:19
we're going to do anything other than that, 11:19
I'd like it to be on the record. And
11:19
absolutely by all means, if you think I'm
11:19
doing something that I shouldn't be doing, 11:19
please put it on the record.
11:19
MR. KOWALSKI: I did.
11:19
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MR. HAVERSTICK: That's the point.

11:19
MR. KOWALSKI: And I will.
11:19
MR. HAVERSTICK: Great. Then we're
11:19
choosing Option A, and Option A is fine
11:19
with me too. Okay?
11:19
THE WITNESS: I'd like to request
11:19
whatever it is you guys are talking about, 11:19
it's including the time you're keeping me
11:19
here. And for whatever it's worth,
11:19
whatever you guys are talking about, I know 11:19
nothing of that because I'm paying
11:19
attention to you. I see you occasionally
11:19
and you occasionally. I have not heard,
11:19
seen, received any signals from anybody.
11:19
Everything you've heard from me is coming
11:19
from me and will continue to come from me.
11:19
MR. KOWALSKI: I can assure you that
11:19
is true.
11:19
MR. HAVERSTICK: Well, that's
11:19
absolutely true. And I don't mean to
11:19
reflect upon the witness at all. I'm not
11:19
talking about the witness at all.
11:19
THE WITNESS: Thank you.
11:19
MR. HAVERSTICK: You've been a
11:19
gentleman, and I appreciate having our
11:20
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conversation. And I'd like to continue

11:20
having our conversation because I think
11:20
it's fruitful, and I think we can get out
11:20
of here at a reasonable hour if we keep
11:20
plowing along.
11:20
MR. KOWALSKI: Matt, let me just say
11:20
one thing because I don't want to waste any 11:20
more of Mr. Berst's time, which is
11:20
valuable, but I also want to make clear
11:20
that if we're talking about cooperation in
11:20
the spirit of Judge Covey's order, that
11:20
includes the thousands of documents that
11:20
we've been producing, the team of
11:20
associates who are working around the clock 11:20
to get you what you need and what you've
11:20
requested, our extraordinary efforts to
11:20
make people available for depositions on a
11:20
very short time period, the fact that we
11:20
have not objected once to how long a
11:20
deposition has been going, and our constant 11:20
responses to your constant questions about
11:20
privilege issues and responding to motions
11:20
we think are meritless. So we've tried
11:20
extremely hard to be cooperative, and I
11:20
appreciate the words you said about me, but 11:20
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I feel like I have to put on the record as

11:20
well that the notion that we aren't being
11:20
cooperative in the spirit of Judge Covey's 11:20
letter is outrageous to me.
11:20
MR. HAVERSTICK: That's all I'm
11:21
going to say.
11:21
MR. KOWALSKI: That's fine.
11:21
MR. HAVERSTICK: I did not mean to
11:21
characterize your behavior outside of this 11:21
deposition room as uncooperative. The
11:21
record is what it is. I'm talking only
11:21
about ways today that we can continue
11:21
moving along and not be distracted.
11:21
MR. KOWALSKI: That's good. Let's
11:21
go.
11:21
Q. All right. Back to our
11:21
conversation.
11:21
MR. KOWALSKI: Back to your
11:21
deposition.
11:21
Q. Back to our conversation.
11:21
Were you aware that a response to
11:21
this November 17 letter was written by chief
11:21
counsel or general counsel for Penn State
11:21
University, Cynthia Baldwin?
11:21
A. No.
11:21
27 (Pages 102 to 105)

877-702-9580
David Berst
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Q. Were you ever told she wrote one -11:21

well, let me ask, I don't want to ask too many
11:21
questions.
11:21
Were you ever told she wrote one?
11:21
A. I don't believe so, no.
11:21
Q. To your knowledge, you were never
11:21
shown it, it was never discussed with you?
11:22
A. No.
11:22
Q. I'm going to represent for you, and
11:22
we can -- if I could put the documents in front 11:22
of you if there's not agreement with counsel,
11:22
that Ms. Baldwin in drafting a response sent it 11:22
for review to Donald Remy prior to it being
11:22
officially sent on behalf of Penn State.
11:22
MR. KOWALSKI: If that's true, I
11:22
think we need to see the document.
11:22
MR. HAVERSTICK: Okay. Yeah. And
11:22
this is not a trick for you.
11:22
MR. KOWALSKI: That's fine. I think 11:22
it just would be fair for him to look at
11:22
the document.
11:22
MR. HAVERSTICK: We're looking at
11:22
Tab 13.
11:22
MR. KOWALSKI: I'm sorry.
11:22
MR. HAVERSTICK: I am too, by the
11:23
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way. You've been a pleasure, and I

11:23
appreciate your forthrightness in how
11:23
you've been answering questions.
11:23
A. Okay. I've seen this.
11:24
Q. Oh, you have -- you've seen it right
11:24
now?
11:24
A. I've seen it right now, yes.
11:24
Q. Can we agree, and this goes for
11:24
Mr. Kowalski too, that this is a -- this
11:24
represents an email to Donald Remy from Cynthia 11:24
Baldwin, the general counsel of Penn State at
11:24
the time, and that the email to Mr. Remy
11:24
includes a draft letter to Mark Emmert written
11:24
by Ms. Baldwin that is in response to the
11:24
November 17 letter from President Emmert?
11:24
MR. KOWALSKI: To the extent the
11:24
question is to me, I'll agree it says what
11:24
it is.
11:24
MR. HAVERSTICK: Yeah, I want the
11:24
record -11:24
MR. KOWALSKI: It says what it says. 11:24
A. It has draft on it. To me, this is
11:24
not a response to the letter. This is an
11:24
explanation for why the response will come
11:24
later.
11:24
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Q. Right. That's absolutely right.

11:24
Yes.
11:25
A. I think that's what I said earlier,
11:25
it was my understanding that we didn't get a
11:25
response. We got a postponement of receiving a
11:25
response to the letter. You asked me if we
11:25
ever did receive a response to the letter. I
11:25
answered no, to my recollection, on that point.
11:25
Q. You recall getting at some point
11:25
down the line a response from Ms. Baldwin
11:25
saying we'll answer later, something like that?
11:25
A. I didn't recall this.
11:25
Q. Okay.
11:25
A. I said earlier that my recollection
11:25
was that we understood and agreed that they
11:25
didn't have to respond to the letter as
11:25
outlined then, but they would at some juncture,
11:25
and to my knowledge, that juncture never came.
11:25
Q. Here's my question and the reason
11:25
for me showing you this document. Do you know
11:25
of any reason why Penn State's general counsel
11:25
would preview a draft response to Dr. Emmert by
11:25
sending it to Mr. Remy in this fashion?
11:25
11:26
Characterizing the document.
11:26
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A. Well, I don't have a specific answer

11:26
to that question. It seems perfectly
11:26
reasonable that if the general counsel is
11:26
trying to figure out how to maneuver through
11:26
these processes with the various demands on the 11:26
institution for various requests for
11:26
information and investigations that were going
11:26
to be ongoing that that person would be in
11:26
communication with NCAA's legal counsel.
11:26
Q. Were you aware, aside from this
11:26
letter, communications around this time period
11:26
between Ms. Baldwin and Mr. Remy regarding Penn 11:26
State's response to NCAA's inquiries?
11:26
MR. KOWALSKI: If you can do so
11:26
without revealing the contents of any
11:26
privileged conversations with Mr. Remy, go 11:26
ahead.
11:26
A. I don't recall any substantive
11:26
responses to the questions that had been posed
11:27
by Mark Emmert.
11:27
Q. But my question was whether you were 11:27
aware of communication around this time period
11:27
between Mr. Remy and Ms. Baldwin about Penn
11:27
State's response, be it this letter, be it
11:27
phone calls, be it other emails?
11:27
28 (Pages 106 to 109)

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MR. KOWALSKI: And in answering,

11:27
please don't reveal the contents of
11:27
privileged communications with Mr. Remy.
11:27
A. Yeah, I don't believe I knew
11:27
anything.
11:27
Q. Okay.
11:27
A. Except the impression that I had
11:27
given you earlier that the institution had
11:27
requested not to respond by the deadline and
11:27
that there would be a response forthcoming
11:27
later, but I don't know when that was.
11:27
Q. When was the first time that you
11:27
became aware that the Freeh Group or Freeh,
11:27
Sullivan & Sporkin, we'll just call it the
11:27
Freeh Group because, frankly, there are too
11:27
many cooperate entities involved in it to just
11:27
name it one thing, when is the first time you
11:27
recall the Freeh Group being retained or
11:28
involved with Penn State to do what turned out
11:28
to be the Freeh Report?
11:28
11:28
A. I don't have any recollection of
11:28
knowing at any particular time. I don't even
11:28
know the source of knowing whether it was from
11:28
public information or from internal people. I
11:28
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just -- I don't have a recollection of that.

11:28
Q. Were you ever made aware that in
11:28
December, early December of 2011, that NCAA
11:28
personnel were meeting with Freeh Group
11:28
personnel?
11:28
MR. KOWALSKI: And you can answer,
11:28
if you can, without revealing the contents
11:28
of any privileged legal communications with 11:28
Mr. Remy.
11:28
A. I don't remember that.
11:28
Q. You don't remember that?
11:28
A. No.
11:28
Q. Were you ever made aware that both
11:28
counsel for the Big Ten and Mr. Remy were
11:29
having throughout the end of 2011 and through
11:29
the first half of 2012 weekly telephone calls
11:29
with Freeh Group personnel?
11:29
11:29
Please don't reveal any privileged
11:29
communications in answering.
11:29
A. I don't believe that I knew that,
11:29
no.
11:29
Q. Were you aware that -- did you
11:29
become aware that NCAA personnel were providing 11:29
draft interview questions to Freeh Group
11:29
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personnel as Freeh Group personnel undertook

11:29
their Penn State review?
11:29
11:29
Please don't reveal the contents of any
11:29
privileged communications.
11:29
A. I -- I don't believe I'm aware of
11:29
that either.
11:30
Q. Were you ever made aware that Julie
11:30
Roe gave a multi-hour PowerPoint presentation
11:30
on issues of institutional control to Freeh
11:30
Group personnel?
11:30
11:30
Same objection regarding privilege or
11:30
caution regarding privilege, I should say. 11:30
A. No.
11:30
Q. All of this is news to you? This
11:30
was not something that was discussed -11:30
11:30
News assumes -11:30
A. I don't believe I know any of those
11:30
things.
11:30
Q. Okay. You're hearing this -- these
11:30
questions are not -11:30
A. You're -- yeah.
11:30
Q. I see.
11:30
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Are you aware of whether there were

11:30
contacts throughout 2012 by the Freeh Group
11:30
with NCAA personnel in which investigative
11:30
findings were being discussed with NCAA
11:30
personnel by Freeh Group people?
11:30
11:31
Same caution regarding privilege.
11:31
MS. DOBLICK: I also object to form. 11:31
A. No.
11:31
Q. Do you know whether -- let me ask it 11:31
this way: When did you learn that the Freeh
11:31
Group was about to or had issued its report?
11:31
A. I think when it became public.
11:31
Q. You did not know prior to the time
11:31
it became public that the report was imminent?
11:31
11:31
A. I don't believe so. I've got to
11:31
think about when it became public. I don't
11:31
know when that was either, but I think I just
11:31
read it like everybody else.
11:31
Q. I never remember either. I want to
11:31
say it was July 12, 2012, but probably
11:31
everybody else in the room is going to tell me
11:32
I'm wrong.
11:32
But in any event -11:32
29 (Pages 110 to 113)

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A. Seems right to me.

11:32
Q. You don't have a recall of being
11:32
given any advance notice that the report was
11:32
being released?
11:32
A. I'm almost positive I was not.
11:32
Q. Are you aware, as we sit here today, 11:32
of whether anyone else at NCAA was made aware
11:32
of the impending release of the Freeh Report?
11:32
11:32
Same caution regarding privilege.
11:32
Go ahead.
11:32
A. I don't have that information, no.
11:32
Q. I think -- I think the answer to
11:32
this one has to be a no, but I'll ask it anyway 11:32
for sake of completeness, you're not aware of
11:32
whether anyone at NCAA prior to the release of
11:32
the Freeh Report was given any information
11:32
about what was contained in the report before
11:32
its release?
11:33
11:33
A. I'm not aware of it, no.
11:33
Q. Same -- with all of those
11:33
questions -11:33
MR. KOWALSKI: I understand.
11:33
Q. -- I don't want to know if any of
11:33
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this information came from Mr. Remy if it was

11:33
for the purposes of receiving legal advice.
11:33
But the answer is no, right?
11:33
A. It's no.
11:33
Q. You reviewed the Freeh Report after
11:33
it came out actually?
11:33
A. Eventually when it was released.
11:33
Q. Right.
11:33
A. I got a copy, I'm sure.
11:33
Q. What do you recall your reactions
11:33
being to the Freeh Report?
11:33
A. I tried really not to react
11:33
particularly. I recognized that the Freeh
11:33
Report had been completed that -- about the
11:33
same time it was being accepted by the
11:34
university. And soon thereafter or around the
11:34
same time, they had indicated they were going
11:34
to implement all the recommendations of the
11:34
Freeh Report.
11:34
Q. Where did you acquire the knowledge
11:34
or information that the Freeh Report was
11:34
accepted by the university?
11:34
A. It seemed to me like it was a press
11:34
release from the university.
11:34
Q. How soon do you recall after the
11:34
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Freeh Report's public release was there

11:34
internal discussion at NCAA about penalty or
11:34
enforcement proceedings against the university? 11:34
MR. KOWALSKI: We're going to have
11:34
to be careful on privilege here. So he's
11:34
asking a timing question. For now, let's
11:34
just take it a step at a time.
11:34
A. Yeah, I don't recall when the Freeh
11:34
Report actually came out.
11:34
Q. So let's look at Tab 21.
11:34
MR. HAVERSTICK: Actually, you know
11:35
what? Hold on. Let's take a look at
11:35
Tab 18 first, just so we establish
11:35
something and mark as Berst 5. Thank you. 11:35
11:35
identification.)
11:35
Q. I'm going to show you an email from
11:35
Bob Williams that looks like it goes to Mark
11:35
Emmert and then gets to you, but I may have
11:35
that kind of fouled up, but take a look.
11:35
A. Okay.
11:36
Q. Does this establish for all of us
11:36
that the Freeh Report was released on July 12,
11:36
and according to Bob Williams, posted online at 11:36
9:05 a.m.?
11:36
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MR. KOWALSKI: Objection. Form.

11:36
A. Well, it's probably reading more
11:36
than is in this email. I'm willing to say it
11:36
must have been around this time. But my dates
11:36
and days are going to be a little confused
11:36
around here.
11:36
Q. Mine too.
11:36
What's purple category?
11:36
A. No idea.
11:36
Q. Is that a designation that Mark
11:36
Emmert uses or would use, if you know?
11:36
11:37
A. I don't know.
11:37
Q. Okay.
11:37
MR. HAVERSTICK: Let's look at
11:37
Tab 19, which we will mark as Berst 6.
11:37
11:37
identification.)
11:37
A. All right.
11:37
Q. This document notes a conference
11:37
call that is -- I think, it means follow-up.
11:37
It says F up, but we'll just assume it's
11:38
follow-up, to report on Penn State. It's
11:38
confusing because the time says 1:30 p.m., but
11:38
then it also says 5:30 p.m., but in any event,
11:38
30 (Pages 114 to 117)

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the date of this appointment invite is

11:38
July 12th, correct?
11:38
A. Yes.
11:38
Q. Does this, upon reviewing this
11:38
document, does this jog your memory that you
11:38
had a conference call regarding the Freeh
11:38
Report on the day of its release?
11:38
A. I don't know whether it's the day of
11:38
the release. I would have guessed this was a
11:38
follow-up to a conference call involving the
11:38
executive committee and board of directors and
11:38
that this is sort of a staff follow-up to that.
11:38
But I could be wrong about that.
11:38
Q. So the report on Penn State may not
11:39
necessarily reference the Freeh Report? It
11:39
could reference a report on Penn State given to
11:39
the executive committee?
11:39
A. It could. I don't know. My
11:39
recollection is that there would have been a
11:39
call with the executive committee then, which
11:39
would mean the Freeh Report would have been out
11:39
earlier.
11:39
Q. Are minutes taken of these
11:39
executive -- of calls like ones like this the
11:39
executive committee would have undertaken?
11:39
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A. Of the executive committee, yes.

11:39
Q. So if this had been a conference
11:39
call of the executive committee to discuss
11:39
something related to Penn State, it would have
11:39
been memorialized in some fashion?
11:39
A. That wouldn't be this call. This is
11:39
a staff call.
11:39
Q. I see.
11:39
A. Whenever the executive committee
11:39
call is, yes, there would be a report of that
11:39
call.
11:39
MR. HAVERSTICK: Brian, I presume we 11:39
requested all this stuff, but to the extent 11:40
there are executive committee minutes
11:40
reflecting calls around this time period,
11:40
I'd ask they be produced. They may have,
11:40
for all I know.
11:40
MR. KOWALSKI: They have been, to
11:40
the best of my knowledge.
11:40
Q. Okay. I'm going to, to save time
11:40
because I don't think, unless you tell me
11:40
otherwise, time particularly matters. I'm
11:40
going to represent to you in the next several
11:40
days after July 12 there were several calls
11:40
scheduled in which you were a participant.
11:40
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Does that generally sound right?

11:40
A. Yes.
11:40
Q. If anybody wants, we can go through
11:40
that and establish when they were, but I don't
11:40
think it's particularly germane to what I'm
11:40
asking unless you care to see the invite.
11:40
MR. KOWALSKI: As long as you're
11:40
comfortable that that is factually
11:40
accurate.
11:40
A. It's factually accurate that I was
11:40
involved in some calls then, so I think I'm
11:40
fine, yeah, sure.
11:40
Q. How soon after the release of the
11:40
Freeh Report publicly do you recall anyone on
11:40
these calls or meetings discussing enforcement
11:40
actions or penalty actions against Penn State
11:41
University?
11:41
11:41
A. Well, if it really is going to the
11:41
timing, then you do need to show me. Show me
11:41
the Freeh Report, when it was released, show me 11:41
the executive committee call, and I can tell
11:41
you precisely.
11:41
Q. Okay.
11:41
A. Then I would have had calls
11:41
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following that executive committee call with

11:41
Gene Marsh and others.
11:41
MR. KOWALSKI: I think it's also
11:41
clear at this point in the process, our
11:41
view is that we're asserting privilege over 11:41
the communications that occurred on these
11:41
calls where Mr. Remy was present and
11:41
providing legal advice. So we're going to
11:41
take that position today. We'll see what
11:41
the questions are, but to the extent the
11:41
questions call for disclosing specific
11:41
communications that occurred at those
11:41
meetings, we're going to instruct you not
11:41
to answer.
11:41
Q. That's the same caveat I broached in
11:41
the beginning -11:41
A. Yeah, it gets confusing, but let's
11:41
go.
11:42
MR. KOWALSKI: We'll get through it.
11:42
Q. Let's pull Tab -- let's pull Tab 15
11:42
first.
11:42
MR. HAVERSTICK: And Brian, for
11:42
simplicity sake, can we agree for the
11:42
record that the Freeh Report was released
11:42
publicly on July 12th?
11:42
31 (Pages 118 to 121)

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David Berst
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MR. KOWALSKI: That's the date on

11:42
the front of the Freeh Report. I have no
11:42
reason to think otherwise.
11:42
MR. HAVERSTICK: That's what the
11:42
email from Williams says too that it's just 11:42
been posted.
11:42
MR. KOWALSKI: It appears that, yes. 11:42
MR. HAVERSTICK: Yeah, I mean,
11:42
there's another email where I can show it, 11:42
but -11:42
MR. KOWALSKI: I mean, Penn State's
11:42
counsel is here, and they commissioned the 11:42
Freeh Report. So they're probably the best 11:42
source of when it was -11:42
MR. HAVERSTICK: Donna, are we right 11:42
about that? Was it released publicly on
11:42
July 12th?
11:42
MS. DOBLICK: To the best of my
11:42
knowledge, yes.
11:42
Q. Okay. Well, then, if it turns out
11:42
that we're all wildly wrong, you'll get a
11:42
chance to review your testimony and we can -11:42
A. Swear everybody in.
11:42
MR. HAVERSTICK: There we go, okay.
11:43
I don't want to mark it as an exhibit, but
11:43
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can we note for the record that the Freeh

11:43
Report is dated July 12th, 2012?
11:43
11:43
identification.)
11:43
Q. Here is Berst 7. It's a calendar
11:43
invite for July 10, 2012. And now I've lost my
11:43
place in the tabs, which tab is that?
11:43
MR. KOWALSKI: Is this Exhibit 7?
11:43
MS. MADDEN: Yes.
11:43
Q. This meeting subject is called Penn
11:43
State Update; you agree?
11:43
A. Yes.
11:43
Q. Does seeing -- and you're on it, you
11:43
were invited to this -11:43
A. Right.
11:43
Q. -- meeting? This was not a
11:43
telephone call, it appears to be a meeting?
11:43
A. I don't remember one in the evening
11:43
now. I wonder if it is a call.
11:44
Q. It lists where is the 341 B Bravo
11:44
meeting room, but there is also dial-in
11:44
information so who knows.
11:44
MS. MADDEN: Can we go off the
11:44
record?
11:44
11:44
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Q. I think we shouldn't assume any of

11:44
us that it happened at the time the document
11:44
says it happened. I'm less concerned about the
11:44
time and more about the date, unless the time
11:44
is important or relevant to you?
11:44
A. No, it makes more sense that it
11:45
would be 2:00 to 3:00 which is referenced in
11:45
here as well.
11:45
MR. KOWALSKI: We're back on the
11:45
record.
11:45
MR. HAVERSTICK: Yeah.
11:45
A. I think it looks like there was a
11:45
meeting on the 10th.
11:45
Q. Do you have any recall of what the
11:45
Penn State update, which is the subject of this
11:45
meeting, was about?
11:45
MR. KOWALSKI: Caution you not to
11:45
reveal -- so caution you not to reveal the
11:45
contents of privileged legal
11:45
communications. If you remember, you can
11:45
certainly say what the topic was.
11:45
A. I don't remember. I don't remember
11:45
the meeting.
11:45
Q. To your recollection, you don't
11:45
recall whether anyone discussed the impending
11:45
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release of the Freeh Report?

11:45
MR. KOWALSKI: Same objection
11:45
regarding privilege.
11:45
A. I don't recall. I don't recall the
11:45
sequence of how things occurred.
11:45
Q. Okay.
11:45
A. I recall I certainly was in a
11:45
meeting at some point with a number of these
11:45
individuals regarding next steps, but I don't
11:45
know if it's before or after or at the same
11:45
time.
11:46
Q. Okay. And I'll do this quickly
11:46
because I just want to establish for your
11:46
comfort the timeline and when the meetings
11:46
happened and then we can get into if it's
11:46
relevant -- it can be or not.
11:46
11:46
identification.)
11:46
Q. We're now looking at Berst 8, which
11:46
is another appointment. And I think we put on
11:46
the record that none of us can be comfortable
11:46
that the times are necessarily correct in the
11:46
start and end?
11:46
This is another appointment to which
11:46
you were invited?
11:46
32 (Pages 122 to 125)

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A. Yes.
11:46
Q. Also subject update on Penn State?
11:46
A. Yes.
11:46
Q. And this one says conference call
11:46
and there's a number, so presumably it was.
11:46
So do you recall this meeting?
11:46
A. No.
11:46
Q. At the bottom in the notation,
11:46
there's a 7/11/12 with a DBY beside it. And
11:47
that says: A brief update regarding Mark's
11:47
call this morning, 5/10 minutes.
11:47
Do you see that?
11:47
A. I do.
11:47
Q. Does reading that give you any
11:47
recollection about Mark's call, what that was?
11:47
A. No.
11:47
Q. What it was about?
11:47
A. No.
11:47
Q. Okay. And we agree that this one
11:47
was the day before the Freeh Report was
11:47
released?
11:47
A. It appears so, yes.
11:47
Q. And you don't recall the Freeh
11:47
Report's release being discussed at this
11:47
meeting?
11:47
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A. I don't have a recollection of the

11:47
meeting.
11:47
Q. Of it at all?
11:47
A. No.
11:47
Q. Good enough.
11:47
MR. HAVERSTICK: Let's go to, we got
11:47
19, right?
11:47
MS. MADDEN: Yes.
11:47
MR. HAVERSTICK: Next one is Tab 21,
11:47
please.
11:48
11:48
identification.)
11:48
Q. This is Berst 9. It's another
11:48
invite, another telephone call it appears. We
11:48
agree that this call, again, you're invited
11:48
to -- by the way, it's the same group that's
11:48
been invited to the several previous invites
11:48
and calls?
11:48
A. It appears to be, yes.
11:48
Q. Would this be the working group that 11:48
would be initially discussing reaction to the
11:48
Freeh Report, if you know?
11:48
A. Well, I wouldn't characterize it as
11:48
a working group. I think it's basically the
11:48
same group of vice presidents who gathered
11:48
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before to talk about Penn State matters. So

11:49
that conversation among staff members
11:49
continued.
11:49
Q. These would be the people who, as
11:49
you recall, were involved in conversations
11:49
about what to do in response to the Freeh
11:49
Report?
11:49
A. Well, eventually the answer to that
11:49
is yes. But earlier it was related to the
11:49
November letter. But it was the same group of
11:49
people trying to talk through what was
11:49
occurring in the Penn State matter.
11:49
Q. This subject follow-up on Penn State 11:49
discussion, it's dated 7/13, and we've
11:49
established it's the day after the release of
11:49
the Freeh Report, do you have any specific
11:49
recall of this one?
11:49
A. No, I don't know which -- I don't
11:49
know what occurred.
11:49
Q. Next one -11:49
MR. HAVERSTICK: Brian, do you want
11:50
me to just go through and represent and by 11:50
document name when there were calls? I
11:50
mean, I can put them all -11:50
A. It will help me once you -11:50
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Q. Great.
11:50
A. -- pin down whenever I'm talking to
11:50
Gene.
11:50
Q. Let's do that, then.
11:50
MR. HAVERSTICK: 24.
11:50
11:50
identification.)
11:50
Q. That's Berst 10.
11:50
Now, this conference call is to a
11:50
wider group -- can you identify, you don't have
11:50
to name them, but if you can tell me what group
11:50
we're looking at here in the "To" line, that
11:50
would be helpful?
11:51
A. This would be the executive
11:51
committee of the association, which is a group
11:51
of presidents from all three divisions, and in
11:51
addition, the members of the board of directors
11:51
from Division I.
11:51
Q. So this would have been a conference
11:51
call, assuming all of these folks dialed in,
11:51
that would have been a combination call between
11:51
the D1 -- a D1 committee and the executive
11:51
board?
11:51
A. Executive committee, yes.
11:51
Q. Executive committee, pardon me.
11:51
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A. Yes.
11:51
Q. There are also several NCAA staffers 11:51
who are on this invite, including you. Do you
11:51
recall a teleconference on or about this time
11:51
to discuss Penn State?
11:51
A. I recall a couple of those calls. I
11:51
would have guessed this was the second one, but 11:51
I'm not certain of that.
11:52
Q. Would there -- if I understood your
11:52
earlier testimony, there would be meeting
11:52
minutes of any call of this nature involving
11:52
the executive committee and the D1 board?
11:52
11:52
A. There is a -- it's called a report.
11:52
It doesn't provide much more than action items, 11:52
but it indicates the substance of what the
11:52
topics were that were discussed.
11:52
Q. Okay.
11:52
MR. KOWALSKI: That's a general
11:52
matter, right?
11:52
A. Right.
11:52
Q. Yeah, that's not particular to this
11:52
matter ...
11:52
MR. KOWALSKI: Yeah.
11:52
Q. Do you recall any specific
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conversations or any particular topic matters

11:52
in this telephone call?
11:52
MR. KOWALSKI: And just caution you,
11:52
you can answer that question. But to the
11:52
extent Mr. Remy provided legal advice or
11:52
legal advice was requested from Donald
11:52
Remy, you can't disclose that, but you can 11:52
otherwise talk about the discussions that
11:52
were on this call.
11:53
A. The -- well, the difficulty I have
11:53
is I'm not sure which -- which call this is.
11:53
There are two different calls involving
11:53
executive committee members. So the specific
11:53
answer to your question is no, I don't
11:53
remember.
11:53
Q. You do recall two telephone calls
11:53
with the executive committee to discuss the
11:53
reaction to the Freeh Report? You just don't
11:53
remember which one this was in particular?
11:53
A. Correct.
11:53
MR. HAVERSTICK: Next one is Tab 25.
11:53
And that's Berst 11.
11:53
11:53
identification.)
11:53
Q. And this, again, is a conference
11:53
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call, subject, Penn State, dated 7/17. And now

11:54
we're back to -- I call it the working group, I
11:54
know that's not what we mean. But the same
11:54
group of individuals who have been generally
11:54
discussing Penn State matters and Freeh Group
11:54
matters, correct?
11:54
A. Right.
11:54
Q. Do you recall this telephone call?
11:54
A. No, I don't recall. I mean, I
11:54
recall what happened during a time period, but
11:54
I can't fix that to any particular call. The
11:54
date doesn't quite hang together.
11:54
Q. So I'll represent based on looking
11:54
at these exhibits that there are a series of
11:54
calls spanning July 10 to July 17 and we've
11:54
established that the Freeh Report was issued in
11:54
the morning of July 12th, and there were
11:54
several telephone calls in that time period.
11:54
In general, is it your recollection
11:54
that it is within that time period and on these
11:55
calls that you and the others were beginning to
11:55
discuss NCAA's reactions to the Freeh Report?
11:55
MR. KOWALSKI: And he's asking a
11:55
yes-or-no question.
11:55
Q. Yeah. I'm not asking what you
11:55
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talked about.
11:55
A. The answer is yes. I mean, I would
11:55
have fixed the time between about the 12th and
11:55
around the 17th/18th, somewhere in there, yes.
11:55
Q. And as far as you recall, it had to
11:55
have been after the 12th, because you had no
11:55
access to either the report or the material in
11:55
the report prior to its public release?
11:55
A. That's what I'm thinking, yes.
11:55
Q. When is the first time -- no, let me 11:55
ask it this way: Is it within that period from 11:55
July 12 to July 17 that you recall for the
11:55
first time that NCAA was contemplating some
11:55
penalty action against Penn State University in
11:55
reaction to the Freeh Report?
11:56
11:56
And you can answer this question,
11:56
but just be careful not to reveal specific 11:56
11:56
A. The -- I think the initial call that 11:56
I recall that I can't fix in time with the
11:56
executive committee basically was an effort by
11:56
the president, by Mark Emmert, to assess from
11:56
the executive committee members what their
11:56
general reactions were and the seriousness with
11:56
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which they were taking the matter.

11:56
Q. What do you recall of the assessment 11:56
of the executive committee members in reaction
11:56
to the Freeh Report? And I know this is a hard 11:56
one, but as specifically as possible with
11:56
individual folks, if you can.
11:56
A. I'll have some trouble with
11:57
individual folks, but almost all of them used
11:57
words like it's the kind of matter that should
11:57
result in a death penalty. I don't think they
11:57
knew what death penalty was exactly. And
11:57
others may have said that there should be a
11:57
suspension of play in the sport for a period of 11:57
time. So there was a real outrage on the part
11:57
of individuals about the matter. And I think I 11:57
said to someone else that the only one I
11:57
remember not really going to that extreme was
11:57
Judy Genshaft from South Florida who broached
11:57
the subject from the point of view that she
11:57
would be interested in some follow-up
11:57
considerations or review by the president, Mark 11:57
Emmert, on the subject of penalties that might
11:58
apply under these kinds of circumstances, but
11:58
that this clearly was something that the
11:58
executive committee may well assume
11:58
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jurisdiction in evaluating further or at least

11:58
encourage the president to proceed with the,
11:58
you know, with the -- with a substantial
11:58
penalty in the matter.
11:58
Q. Do you recall on the executive
11:58
committee/D1 board call whether Joanna Simon -- 11:58
A. Lou Anna Simon.
11:58
Q. Thank you.
11:58
Was on that call?
11:58
A. I only have a vague recollection in
11:58
that regard. I think at least on the initial
11:58
call, that she would have been. If her name is 11:58
on the record, then she would have been on the
11:59
call. She did not comment beyond indicating
11:59
that the Big Ten also had some sort of a
11:59
procedure or process of review in the matter as 11:59
well. So I think she refrained from offering
11:59
comment.
11:59
Q. Did she say that that process was
11:59
underway, or was she just indicating that we
11:59
have our own process too, if you remember?
11:59
A. I don't remember specifically that.
11:59
I think later they actually did have a process
11:59
underway, but I don't know if in the first
11:59
instance they did.
11:59
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Q. Parenthetically, did you form an

11:59
opinion at this time as to whether, I'm going
11:59
to call it the death penalty, but can we agree
11:59
we're talking about suspension of play, was an
11:59
appropriate penalty for what you saw in the
11:59
Freeh Report?
12:00
12:00
A. I didn't -- I don't think I offered
12:00
that kind of comment to the group at the time.
12:00
I think what I got from the call was a little
12:00
bit of surprise that the matter was considered
12:00
as serious and that there were so many other
12:00
presidents who believe that that was the
12:00
appropriate action ultimately for what they had
12:00
been reading about, what they had been -- their
12:00
own, at least understanding at that point what
12:00
the case was all about.
12:00
Q. Why surprise?
12:00
A. I have never heard a set of
12:00
presidents speak in such direct and serious
12:00
tone about it. I think they were essentially
12:00
universal in their opinion that this cut to the
12:01
underbelly of intercollegiate athletics.
12:01
Q. So your surprise was generated by
12:01
hearing university presidents be so vocal on
12:01
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such a harsh potential penalty?

12:01
A. Yes.
12:01
Q. Was your surprise generated at all
12:01
by your belief about the propriety of the death 12:01
penalty or suspension of play?
12:01
MR. KOWALSKI: Objection to the
12:01
form.
12:01
A. Well, I think what I was thinking at 12:01
the time was that I have, you know, processed
12:01
about 2,000 infractions cases in serious
12:01
matters, and there are lots of sides to every
12:01
issue. And it seemed interesting to me that
12:01
there was such interest in heading in that
12:01
direction or framing their comments in that
12:02
manner without reviewing all of the information 12:02
that was available.
12:02
I don't know whether they had read
12:02
the Freeh Report at that point or just were
12:02
reacting to some of the details. But the
12:02
reactions were surprising to me.
12:02
Q. At this point, had you concluded
12:02
that NCAA should take action against Penn
12:02
State, whatever that action may be?
12:02
MR. KOWALSKI: Him personally?
12:02
MR. HAVERSTICK: Him personally.
12:02
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12:02
Go ahead.
12:02
A. I don't know that I thought of it in
12:02
those terms. I thought action was going to be
12:02
taken with regard to Penn State. And at that
12:02
point, it really was a question of what kind of
12:02
a process was going to be implemented in order
12:02
for that to take place.
12:02
Q. Did you have an opinion at that time
12:02
about what process was the correct process to
12:02
be implemented?
12:03
12:03
A. I don't know if I had it then or if
12:03
I had it within 24 hours. But my view was that
12:03
of the options, it really depends on the time
12:03
spent and the motivation of the school
12:03
involved. There were various alternatives. If
12:03
you -- what I was thinking and not saying to
12:03
them was if you want to just avoid to the final
12:03
moment potential penalty, which, in fact, could
12:03
still turn out to be the death penalty or
12:03
suspension of play, what you would do is you
12:03
would opt to head toward the enforcement
12:03
process and make Julie Roe and her staff go out
12:03
and prove their case and see if they could do
12:03
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it, even with the benefit of the Freeh Report

12:04
and the identification of all the principles
12:04
that are involved.
12:04
Or you could consider the
12:04
possibility of a stipulated agreement, which
12:04
was the word I used before for a summary
12:04
disposition. And that in itself had some
12:04
cumbersome issues in the enforcement program
12:04
that had to be overcome. But if you're
12:04
motivated to, you know, to get it done more
12:04
quickly, then that's probably the place you
12:04
would have to go.
12:04
Q. At that time, did you believe there
12:04
were any other alternatives open to NCAA in
12:04
terms of how it could proceed against Penn
12:04
State?
12:04
A. I think at that time, the first
12:04
call, I was limiting my thinking to only the
12:04
enforcement-related options. So the stipulated
12:04
agreement or the summary disposition case I
12:04
think was the only thing that came to my mind.
12:05
It was later that I came to other ideas about
12:05
how to proceed.
12:05
Q. Did you believe at this point in
12:05
time that if it chose to, NCAA had the
12:05
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authority, legal authority under its rules, to

12:05
act against Penn State?
12:05
12:05
Q. Forget the propriety of it; whether
12:05
you had the authority to do it -- NCAA, that
12:05
is.
12:05
A. It was my view that they did, yes.
12:05
And I believed the executive committee could
12:05
assume that authority if they wished to do so.
12:05
Q. Without, I don't think, a protracted
12:05
meander into the bylaws, where is the
12:05
authority, to your knowledge, within NCAA
12:05
bylaws or its constitution or its rules or
12:05
anywhere for the executive committee to take
12:05
such a step?
12:06
A. Under the duties of the executive
12:06
committee, it indicates that they may establish
12:06
policies or take actions in matters that had
12:06
association-wide impact. The Division II and
12:06
III members of the executive committee were
12:06
expressing the same dismay over the case and
12:06
the same concern about intercollegiate
12:06
athletics generally. So if the executive
12:06
committee believed it important enough, they
12:06
certainly had the ability to act. And they had
12:06
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done so in a couple other cases.

12:06
They had earlier decided we would no 12:06
longer conduct championships in South Carolina
12:06
and Mississippi because they displayed the
12:06
Confederate battle flag, for example. They
12:06
also had decided we would not conduct any
12:06
events in states that have gambling on
12:07
intercollegiate events. They had indicated
12:07
that and the cases where there are Native
12:07
American mascots at institutions, that those
12:07
institutions could not host any event.
12:07
So it certainly isn't unprecedented. 12:07
And if they believed and I believe they
12:07
thought this particular case was unprecedented
12:07
as an attack on intercollegiate athletics that
12:07
they were well within their rights to do it.
12:07
Q. You cited three examples of times
12:07
the executive committee has acted in the
12:07
fashion that we're discussing it acted with
12:07
Penn State.
12:07
A. Right.
12:07
Q. One related to the flying of the
12:07
Southern Cross or the Confederate flag?
12:07
A. The battle flag.
12:07
Q. The second was refusing to have
12:07
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certain events in states that allowed sports

12:08
book?
12:08
A. Yes.
12:08
Q. Collegiate -12:08
A. On intercollegiate events.
12:08
Q. And the third related to Native
12:08
American mascots?
12:08
A. Yes.
12:08
Q. Would any of those three examples,
12:08
could any of those three examples been
12:08
addressed under NCAA's enforcement mechanism?
12:08
12:08
A. Probably not, no.
12:08
Q. You have said several times, I
12:08
think, that Penn State's conduct could be
12:08
addressed under the enforcement proceeding.
12:08
Could, didn't have to be but could, right?
12:08
A. Yes.
12:08
Q. So can we agree that a distinction
12:08
between the Penn State case and the other three
12:08
you identified where the executive committee
12:08
acted in the manner it did, is that only in
12:08
Penn State's case is it one where the
12:09
enforcement process could have been used?
12:09
12:09
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A. Well, that's an interesting way to

12:09
put it because the executive committee, you
12:09
know, seized, if you will, jurisdiction on the
12:09
other matters from other committees. It just
12:09
wasn't an enforcement issue. And so it's not
12:09
unprecedented in the sense that they think this 12:09
rises to the level to take it out of the other
12:09
normal processes.
12:09
But to the extent it was in the
12:09
enforcement area, I think it probably is
12:09
unique.
12:09
Q. Do those other committees that would 12:09
have been -- that would have had -- I know we
12:09
hate the word jurisdiction, but I don't know a
12:09
better one for this purpose -- the other
12:09
committees that had jurisdiction over those
12:09
other three issues, do those committees provide 12:09
the same due process protections that the
12:10
enforcement process does?
12:10
12:10
A. I would say they would with regard
12:10
to those kinds of issues.
12:10
Q. Would they provide for a right of
12:10
appeal?
12:10
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A. I'm sure that they would, yes.

12:10
Q. Would they provide for an
12:10
adversarial hearing?
12:10
12:10
A. Probably not necessarily related to
12:10
an adversarial hearing, but it's certainly a
12:10
collection of information or a sharing of
12:10
information and notice that they were going to
12:10
do that.
12:10
Q. If I ask you an annoying question
12:10
and I know you're not going to want to answer,
12:10
but I promise you after we can break for lunch
12:10
for a couple minutes.
12:10
A. Go ahead.
12:10
Q. Can you name for me the three
12:10
committees, if they are three, that would have
12:10
addressed those other examples we've identified 12:10
where the executive committee snatched the case 12:10
away?
12:10
12:10
A. Championships cabinet in -- let's
12:10
see.
12:11
Q. I'm sorry, I apologize. If you can
12:11
tell me the committee and the issue so I can
12:11
know which committee would be dealing with
12:11
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which issue, that would be appreciated.

12:11
A. The Confederate battle flag and the
12:11
Native American mascot would both be
12:11
championships issue. Gambling still would have
12:11
fallen, I think, in championships. What was
12:11
the other one? Did I have three or four?
12:11
Q. Native American mascot.
12:11
A. Native American mascot was still
12:11
conduct of our events, so that would still be a 12:11
championships cabinet.
12:11
MR. HAVERSTICK: Let me make sure
12:11
there's no more logical questions I can ask 12:11
right now.
12:11
MR. KOWALSKI: I thought you made a
12:11
promise.
12:11
MR. HAVERSTICK: I did make a
12:11
promise. I'd like to take a half-hour
12:11
because I would really like to be done by
12:12
3:00 o'clock, and I think that's
12:12
achievable. How much lunch do you want?
12:12
THE WITNESS: Fine by me.
12:12
(A lunch break was taken.)
12:12
BY MR. HAVERSTICK:
12:53
Q. Okay. Mr. Berst, back on the
12:53
record. I have -- a couple of questions popped
12:53
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into my head following on some of the ones we

12:53
were talking about right before we broke.
12:53
A. I'm shocked.
12:53
Q. Actually, I am shocked. I'm not
12:53
that deep of a thinker.
12:54
MR. KOWALSKI: Let's see how deep
12:54
your thoughts are.
12:54
MR. HAVERSTICK: Mile wide, inch
12:54
deep.
12:54
Q. Back to the four examples -- the
12:54
three examples, beg your pardon -- we
12:54
identified prior to the break in which the
12:54
executive committee acted outside of the
12:54
enforcement process. Those were to sum up:
12:54
The Confederate battle flag situation, the
12:54
sports book situation, and the Native American
12:54
mascot situations.
12:54
In those actions taken by the
12:54
executive committee, with respect to those
12:54
three situations, those actions were not
12:54
directed at members, were they?
12:54
A. Yes. The American -- the Native
12:54
American mascots are directed at members. I
12:54
think that's probably the one of those that is,
12:55
yes.
12:55
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Q. But was it an action against

12:55
specific members, or did it have a general
12:55
impact on all members? Do you see my point?
12:55
A. No. It affected only those that had 12:55
American -- Native American mascots, and it was
12:55
directed at them specifically.
12:55
Q. By name or just in general by class? 12:55
A. Name.
12:55
Q. Okay. So there was, in whatever
12:55
matter, we would find that you would have
12:55
executive committee action taken against
12:55
however many member schools were deemed to have
12:55
Native American mascots?
12:55
A. You'd have a chart of which ones
12:55
they are and what the status of their mascot
12:55
was and you would have, yes, specific actions
12:55
related to them.
12:55
Q. How was that particular matter
12:55
resolved?
12:55
12:55
A. It was resolved that we will not
12:55
conduct events at those locations.
12:55
Q. Okay. Did any of those -- did that
12:56
resolution or if they broke down into
12:56
individual resolutions vis--vis an individual
12:56
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member, did any of those involve an agreement

12:56
between the member school and NCAA that bound
12:56
both of them to not, for instance, have a
12:56
mascot? Or was this instead, an imposed
12:56
solution?
12:56
12:56
A. I don't know that I follow you
12:56
entirely. There would be varying
12:56
communications or processes, I suppose. And in 12:56
some instances with the Native American tribes
12:56
in the area related to their positions on what
12:56
should occur in that particular instance. So
12:56
there would be lots of possible options.
12:56
Q. Let me not be coy. In none of the
12:56
other three situations, including the Native
12:56
American mascots situation, were consent
12:56
decrees involved similar to the one that was
12:57
involved in the Penn State action?
12:57
12:57
A. Well, that would be one of the
12:57
reasons why this line seems irrelevant to me,
12:57
because that isn't the direction it went. You
12:57
were looking for whether the executive
12:57
committee had jurisdiction to act, and I do
12:57
believe they do, with regard to an
12:57
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association-wide issue. They could act in a

12:57
variety of ways. And I don't recall anything
12:57
being termed a consent decree in any other -12:57
in any of my dealings with institutions.
12:57
Q. No secret here. The point of my
12:57
question to you is to distinguish that at least
12:57
with respect to the use of a consent decree,
12:57
Penn State is the -- the Penn State situation
12:57
is similarly distinct from the other three
12:57
because Penn State utilized a consent decree
12:58
and, to your knowledge, the others didn't?
12:58
12:58
A. I think I'm agreeing with you. The
12:58
Penn State matter was considered to be
12:58
unprecedented, demanding action by the
12:58
executive committee. And the form that that
12:58
might take was considered and discussed in
12:58
other settings. We haven't gotten to that, I
12:58
guess, yet.
12:58
Q. Not yet.
12:58
Let me ask you a bylaws question. I
12:58
believe I asked earlier to identify particular
12:58
bylaws that authorized the executive committee
12:58
to take what I would term ad hoc action, and I
12:58
think you answered yes, and I don't remember
12:58
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what the citation was?

12:58
12:58
A. I indicated ones that were set forth
12:58
in the November 14 letter, I think, but I
12:58
didn't include ethical conduct, which I noticed
12:58
was in that letter but -12:58
Q. But what -12:58
A. -- that probably is an additional
12:58
cite that could be used.
12:59
Q. To clarify for the record, what
12:59
authority can you point to in the bylaws or
12:59
rules and regulations that authorizes the
12:59
executive committee to unilaterally and in an
12:59
ad hoc fashion, address a situation that is
12:59
believed to be of significant import?
12:59
MR. KOWALSKI: Object to form. If
12:59
you want -- if you need to see the
12:59
executive committee bylaws, go ahead.
12:59
Q. Yeah, go ahead.
12:59
A. I'm fine, because I'm the person who
12:59
actually thought that it was appropriate not to
12:59
head in the direction of the bylaw citations.
12:59
The executive committee does indeed have the
12:59
ability to act on any matter that it considers
12:59
to be an association-wide issue. None of the
12:59
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other three that we talked about cite a bylaw.

12:59
And so in this instance, if you
12:59
believe that providing sanctuary to a pedophile 01:00
under the noses and possibly through actions
01:00
that permitted that kind of action for 15
01:00
years, to be serious enough of an athletic
01:00
issue to threaten intercollegiate athletics,
01:00
the executive committee is the perfect and only 01:00
group that ought to try to take an action.
01:00
Q. Understanding that explanation,
01:00
which I appreciate, can you point me to a bylaw 01:00
or regulation that authorizes the executive
01:00
committee to do what it did in the case of Penn 01:00
State?
01:00
A. And I would say to you it's set
01:00
forth in the duties of the executive committee
01:00
to address association-wide issues that affect
01:00
the total association. They have the ability
01:00
to take actions and adopt policies related to
01:00
those matters.
01:01
Q. Could you do me the kind service of
01:01
taking a look at that and just saying where
01:01
that comes from?
01:01
A. It's in -01:01
Q. I believe you, I just want to have a
01:01
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number.
01:01
A. -- executive committee duties and
01:01
responsibilities. And it would be constitution
01:01
4.1.2. And among the duties there are some A
01:01
through M set of duties. And, "Act on behalf
01:01
of the association by adopting and implementing
01:01
policies to resolve core issues and other
01:01
association-wide matters." That is the
01:01
sentence that has been relied on in all of
01:01
those cases that I suggested that the executive
01:02
committee took action on.
01:02
Q. Was that M as in Mike, I'm sorry?
01:02
A. No, E.
01:02
Q. Okay. Did I hear you say that you
01:02
specifically stayed away from an analysis early
01:02
on regarding executive committee authority that
01:02
pegged the authority to a particular bylaw?
01:02
01:02
A. I'm not sure the way you're stating
01:02
it or whether I have adequately explained it.
01:02
The citing specific bylaws and utilizing the
01:02
infractions on an enforcement program in a
01:02
couple different ways, either by a stipulated
01:02
set of findings and the processes that ensue
01:02
related to that, or going through the
01:02
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allegation exercise, I thought to be

01:03
exceedingly cumbersome, but available and
01:03
anybody can go that way. And Penn State had
01:03
that option.
01:03
If you were to opt to an action by
01:03
the executive committee, in my view, the only
01:03
way that was reasonable to approach is if the
01:03
institution actually stipulated to some set of
01:03
acts that it accepted responsibility for, which 01:03
was the Freeh Report.
01:03
So if, indeed, the institution said
01:03
we accept what's in the Freeh Report, we're
01:03
going to implement all the recommendations of
01:03
the Freeh Report, whether you can even cite a
01:03
bylaw out of that, if the matter under inquiry
01:03
related to the integrity of intercollegiate
01:03
sport, I think the executive committee had the
01:04
authority right then and there to consider
01:04
action against Penn State.
01:04
Q. I probably asked the question
01:04
inartfully, and I'll get back to it in a
01:04
second. But you said something of interest to
01:04
me -- you've said a lot of interest to me.
01:04
Was it necessary under your reading
01:04
of the bylaws that for the executive committee
01:04
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to act, it had to have the Freeh Report or

01:04
something like it before it could take action?
01:04
A. It had to have some set of actions
01:04
that the institution was willing to assume
01:04
responsibility for.
01:04
Q. It couldn't take it in a vacuum? It
01:04
required something that, as you said, the
01:04
institution that was identified as a fact, that
01:04
the institution could have, in effect, own or
01:04
take ownership of?
01:04
01:04
A. Well, that sort of heads into the
01:04
speculative area, because I didn't have that.
01:05
You know, by the time I got interested in how
01:05
you might be able to process this matter, we
01:05
knew that the institution had basically
01:05
accepted the Freeh Report and was going to
01:05
implement its recommendations. And if that was 01:05
the case, then that to me could serve as the
01:05
vehicle for action to be taken by the executive 01:05
committee. And that to me would take a quicker 01:05
approach than to simply handle it by summary
01:05
disposition through infractions, which is one
01:05
of the conversations that Gene Marsh and I had, 01:05
of the various alternatives, how can this be
01:05
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handled. And the nature of that conversation,

01:05
those conversations from my perspective is:
01:05
Here's fast, here's slow, here's what can avoid
01:05
possible penalties at the end, here's what
01:06
probably will happen the other way. And at
01:06
least it gives some latitude for the executive
01:06
committee to consider actions.
01:06
Q. True or false: Did you or anyone
01:06
else prior to the acceptance of the consent
01:06
decree, articulate the executive committee's
01:06
power to enter into the consent decree and
01:06
resolve the Penn State matter in the way it did
01:06
in terms of these particular statutory
01:06
sections? And I'm pointing to the sections
01:06
that Mr. Berst just referenced.
01:06
MR. KOWALSKI: So let me object to
01:06
the form of the true or false question.
01:06
Also, you can go ahead, but I just caution
01:06
you not to reveal privileged
01:06
communications, to the extent it comes up
01:06
at all.
01:06
A. And I can't do it true or false.
01:06
Q. Okay.
01:07
A. Because I don't know precisely the
01:07
sequence of those calls and meetings. But I,
01:07
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yes, was the person who indicated that in my

01:07
view, this was a way that this could be
01:07
processed.
01:07
Q. And you did so prior to the time
01:07
that the consent decree was entered into?
01:07
A. I don't know the answer to that. I
01:07
think I would have had to have assurance that
01:07
there was such a consent decree and it was
01:07
acceptable to be thinking that way. But I
01:07
would have -- I would have recognized the
01:07
possibilities even before that.
01:07
Q. Tell me, is there anything in the
01:07
bylaws that articulates when it is appropriate,
01:07
in an objective way, for the executive
01:07
committee to take control of a particular
01:07
matter, be it enforcement or otherwise?
01:07
01:07
A. I don't know that you could do that
01:07
other than by simply past practices and whether
01:07
there were objections from the membership
01:08
following actions by the executive committee.
01:08
Q. So there's nothing, there's nothing
01:08
that one could look to. Let's say there was a
01:08
hypothetical challenge to the executive
01:08
committee's authority to resolve a matter in
01:08
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the way we've been talking about for the past

01:08
minutes.
01:08
MR. KOWALSKI: Is that a
01:08
hypothetical?
01:08
MR. SEIBERLING: Of course it is.
01:08
MR. KOWALSKI: I said is it or not a 01:08
hypothetical.
01:08
MR. SEIBERLING: That's true, yeah.
01:08
Q. Where would one consult in the
01:08
NCAA's rules to cite to authority that
01:08
you've -- executive committee, you took this
01:08
properly or executive committee, you did not
01:08
take it properly?
01:08
A. You would do that at the next
01:08
convention. So that would be in January
01:08
following whenever the action might have taken
01:08
place.
01:08
Q. So there's no objective standard
01:08
that we can find in there; it really is a look
01:08
back to see, well, that one seems right and we
01:08
were right to do it there?
01:09
01:09
Q. Is that what you're saying?
01:09
A. Well, no. The institution or
01:09
someone could file a specific objection to an
01:09
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action that's taken and leave to the membership

01:09
at least the opportunity to say that's in
01:09
order, not in order, or appropriate for the
01:09
executive committee to do.
01:09
Q. Understood. But there's no rule
01:09
that that challenging member could cite to, to
01:09
show this was -- this rule articulates when the
01:09
executive committee may appropriately take
01:09
control, this is when it may not?
01:09
A. They would cite exactly what I cited
01:09
before, constitution 4.1.2 little E. They
01:09
would say -- in this instance, they would say
01:09
the executive committee acted improperly by
01:09
utilizing that authority to take any action
01:09
related to Penn State.
01:10
Now that seems a little inartful in
01:10
the sense that Penn State agreed with that at
01:10
the outset. So Penn State said they accepted
01:10
the consent decree. They accepted whatever it
01:10
was the NCAA was going to do in response.
01:10
Q. Am I right, then, that it is only
01:10
the section that we are talking about,
01:10
subsection E, that gives any guidance on the
01:10
propriety of the executive committee assuming
01:10
control? There is no other section that
01:10
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addresses the executive committee's authority

01:10
to pull matters away from where they normally
01:10
would be adjudicated?
01:10
01:10
A. That's where I would go. There may
01:10
be other executive committee policies in regard 01:10
to reporting responsibilities to the membership 01:10
at the convention, but I can't think of
01:10
anything in particular that would call that
01:11
into question there.
01:11
Q. When you reviewed, as you did at
01:11
some point, the propriety of the executive -01:11
of the executive committee's actions with
01:11
respect to Penn State, did you reference or
01:11
consult any other sections of the bylaws other
01:11
than the one we've been discussing for the past 01:11
couple of minutes?
01:11
MR. KOWALSKI: Objection to form. I 01:11
mean, I don't know what review the
01:11
propriety means.
01:11
A. My analysis was to find a way that
01:11
Penn State and the NCAA could move forward
01:11
together and this was the road that seemed to
01:11
be the quickest to get that accomplished. So I 01:11
didn't give it further analysis, no.
01:11
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Q. Okay. Let's now turn -- well,

01:11
actually, no, because I'll forget.
01:11
A. You know, I should say I did do all
01:11
of that. But at the same time, I made clear
01:12
what all of the other options are to resolve
01:12
this matter. So yes, this is the fastest. I
01:12
also explained what the slowest.
01:12
Q. To?
01:12
A. To Gene Marsh.
01:12
Q. To Gene Marsh. Did you give that
01:12
explanation and presentation to your colleagues 01:12
on the phone calls that we know happened
01:12
between the 12th and the 17th?
01:12
MR. KOWALSKI: Objection. If you
01:12
did that in the executive committee call,
01:12
you can answer.
01:12
A. I did not exhaustively, no, I don't
01:12
believe I did.
01:12
Q. Did you privately with any one of
01:12
your colleagues, express what you then later
01:12
apparently expressed to Gene Marsh about we
01:12
could do it this way, we could do it that way,
01:12
we could do it a third way?
01:12
MR. KOWALSKI: Obviously be careful
01:12
not to reveal privileged conversations with 01:12
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legal counsel.
01:12
A. I would have made that information
01:12
known in some setting with the president of the
01:12
association.
01:13
Q. Do you recall a specific instance in 01:13
which you did so?
01:13
MR. KOWALSKI: Objection. Well -01:13
A. I would guess -01:13
MR. KOWALSKI: Hold on one second.
01:13
THE WITNESS: Sorry.
01:13
MR. KOWALSKI: If it's in a setting
01:13
where it's a meeting or discussions
01:13
involving legal counsel, I have to ask you 01:13
not to answer the question.
01:13
A. I can't answer the question.
01:13
Q. You can't answer the question
01:13
because it was in the context of you providing
01:13
information that would have led to this
01:13
provision of legal advice?
01:13
MR. KOWALSKI: I don't know if he
01:13
can answer that question, but we certainly 01:13
have and the others have as well.
01:13
Q. Do you have a specific recollection
01:13
of giving this information in a setting in
01:13
which both Dr. Emmert and Mr. Remy
01:13
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participated?
01:13
MR. KOWALSKI: Can you hold on one
01:13
second, please, before you ask the
01:13
question? I just want to consult about
01:13
this. We're going to take a break in the
01:14
hall just to make sure we know what the
01:14
answer is from a privilege standpoint.
01:14
MR. HAVERSTICK: That's fine.
01:14
Meanwhile, I'm going to -- go ahead.
01:14
01:14
BY MR. HAVERSTICK:
01:17
Q. All right. I'm going to show you -01:17
oh, wait. We had a question. Can you answer
01:17
the question yes or no, whether you
01:17
participated in conversations with Mr. Emmert
01:17
and Mr. Remy on that issue? And I don't
01:17
remember what the issue was anymore.
01:17
MR. KOWALSKI: Well, if the issue is 01:17
specifically the executive authority -01:17
because I think the way you asked the
01:17
question before the break, based on our
01:17
understanding of the context of the
01:17
question, we have to instruct him not to
01:17
answer on privileged grounds.
01:17
MR. HAVERSTICK: Are we establishing 01:17
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that these conversations did happen with

01:17
Mr. Remy in the room, or is it a
01:17
conversation between the witness and
01:17
Mr. Emmert only?
01:17
A. It's not the latter. It involves
01:18
Donald Remy as well.
01:18
MR. KOWALSKI: Involves counsel.
01:18
MR. HAVERSTICK: But involves as in
01:18
he's there talking to -- if the answer is
01:18
yes, I can move on. I'll take your, I will 01:18
accept your representation.
01:18
Q. But the conversation that we are
01:18
discussing with Mr. Emmert, was Mr. Remy either 01:18
on the phone or in the room as a part of that
01:18
conversation?
01:18
A. Yes.
01:18
01:18
identification.)
01:18
Q. Okay. I'm going to show you a
01:18
document we marked, Berst 12, and this is just
01:18
a little cleanup. And I hate to harp on this,
01:18
but I'll forget. Take your time with that,
01:18
please. But I'm really only interested in the
01:18
top email from you to -01:18
MR. KOWALSKI: But you can read the
01:18
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whole thing.
01:18
Q. Yeah, if you want to, go ahead.
01:18
MR. KOWALSKI: I think you might
01:18
want to.
01:18
A. Okay. I've read this.
01:19
Q. Again, I don't want to get -- who is
01:19
Ms. Viverito?
01:19
A. She's the commissioner of the
01:19
Missouri Valley Football Conference.
01:19
Q. You and she are corresponding about
01:19
the email you sent on Monday, July 23?
01:19
A. I sent a more complete memo to all
01:20
of the 32 conference commissioners association
01:20
members.
01:20
Q. Why did you send that memo?
01:20
A. It was an update from me on status,
01:20
as I understood it, at that point, related to
01:20
Penn State matters. It was going to be quite
01:20
public for everyone, and I at least wanted them
01:20
to have some sense of what was going on in the
01:20
matter and where -- how I was thinking about
01:20
it.
01:20
Q. You drafted that email?
01:20
A. I wrote that email, yes.
01:20
Q. Okay. Did anyone assist or edit it
01:20
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for you?
01:20
A. No.
01:20
Q. I am going to direct your attention
01:20
to the very top email, the last in the chain,
01:20
in temporal terms. "My early opposition was
01:20
more re: Jurisdiction."
01:20
We spoke early on, and I believe the
01:20
reason I used the word jurisdiction is that I
01:21
recalled it from an email, and then I went and
01:21
found the email. Does this email reflect or -- 01:21
let me ask it this way: Reading this email,
01:21
does it cause you to remember that, in fact,
01:21
you characterized your early opposition to the
01:21
process that was used to adjudicate Penn
01:21
State's punishment as one related to
01:21
jurisdiction?
01:21
01:21
A. I think during the day, you've been
01:21
using jurisdiction differently than I have.
01:21
And I didn't mean in terms of something being
01:21
impossible. But I was questioning the
01:21
direction of heading down an enforcement
01:21
process. So to me, that word that I used was
01:21
jurisdiction. I've later explained to you all
01:21
kinds of ways that you could process this case. 01:21
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So I believe there's jurisdiction in all of

01:21
those places. We can go back and pick them
01:22
out.
01:22
Q. I got it. I think. I think I have
01:22
it.
01:22
A. Okay.
01:22
Q. Your use of the word jurisdiction
01:22
should not be taken to mean that you believed
01:22
or believe that NCAA had no authority to act in
01:22
this particular circumstance?
01:22
A. In fact, so far you haven't
01:22
identified any area where it could not act, in
01:22
my opinion.
01:22
Q. Okay. Your use of the word
01:22
jurisdiction in this email relates to your
01:22
concern about the propriety of the enforcement
01:22
process versus some other NCAA process?
01:22
01:22
form.
01:22
A. I don't want to say propriety. All
01:22
kind of different people have different views
01:22
of that.
01:22
Q. Use your words.
01:22
A. All I was saying was that I was
01:22
questioning the thinking about how to process
01:23
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the matter at that time.

01:23
Q. And -01:23
A. And I thought there were other ways
01:23
to think about it.
01:23
Q. And at that time, were you thinking
01:23
an other, perhaps better, way was the
01:23
enforcement process; or were you thinking it
01:23
should be some other process?
01:23
MR. KOWALSKI: At what time do you
01:23
mean?
01:23
A. This is, as I understand it, the
01:23
very beginning, the first conversation we have.
01:23
Q. The very beginning, yeah, yeah.
01:23
A. In my mind, I was thinking about
01:23
processes that involved no action at all by
01:23
anybody to -- actions by the executive
01:23
committee, actions by the enforcement program.
01:23
Although the subject at the time, I think was
01:23
limited to enforcement program. I don't think
01:23
anybody else was thinking about other
01:23
possibilities.
01:23
Q. Okay. And at that early time, was
01:23
your thinking on the -- what was your
01:23
opposition, rather, premised on the idea that
01:24
the criminal process should play out first
01:24
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before an enforcement process is invoked or

01:24
utilized?
01:24
01:24
A. Well, there was much more to that.
01:24
I didn't want to limit this to some sort of an
01:24
enforcement process. I wanted to leave the
01:24
door open to consider any kind of process or
01:24
none, which I think hopefully led to the letter
01:24
from the president that did not do any more
01:24
than simply express his own curiosity under
01:24
these kind of bylaws, respond to me,
01:24
institution, and then we'll make another
01:24
evaluation of this matter and figure out what
01:24
to do next.
01:24
Q. Was your option then to the idea
01:24
that there needed to be action at that time at
01:25
all? In other words, early on, was your
01:25
consideration that NCAA should wait and see
01:25
what happened and then decide on the course to
01:25
evaluate or adjudicate the issue?
01:25
01:25
A. I really was trying to react, I
01:25
think to what I was hearing in the room about
01:25
possible options. And I was opposed to heading
01:25
down the direction of the enforcement process
01:25
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at that juncture. So I was simply trying to

01:25
keep it open.
01:25
Q. Okay. While we have -- we'll just
01:25
get this out of the way. Flip to the next
01:25
page, please. I am looking at the first
01:25
paragraph, not the first full paragraph, and
01:26
the second line, first full sentence: This was 01:26
not a negotiation.
01:26
That appears to be a reference to
01:26
the executive committee's acceptance of a
01:26
consent decree; is that right?
01:26
01:26
A. I think, it appears to me that's
01:26
related to the consent decree.
01:26
Q. I mean, yeah, take your time to
01:26
review the full paragraph, if you wish.
01:26
A. And I note on the previous page, I
01:26
make the same reference that I just did on
01:27
executive committee jurisdiction, which then
01:27
permitted the staff to develop a set of
01:27
conclusions based on the Freeh Report and the
01:27
Sandusky trial, as well as penalties, subject
01:27
to executive committee and signoff by the
01:27
president of Penn State.
01:27
Today, I can't tell you whether I
01:27
43 (Pages 166 to 169)

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was thinking any more broadly than what turned

01:27
out to be a consent decree. I don't know
01:27
that -- yeah, by this time, I wouldn't know
01:27
that term, probably.
01:27
Q. As you sit here today, do you still
01:27
characterize -- no, that's not how I want to
01:27
ask that question.
01:27
Do you agree as you sit here today,
01:27
that there was no negotiation between NCAA and
01:27
Penn State University over the consent decree?
01:27
A. I don't know how necessarily that
01:27
word plays in the legal system. The penalties
01:28
that were arrived at and forwarded to the
01:28
institution were simply reported. There
01:28
wasn't -- and Gene Marsh was very good about
01:28
not doing anything except taking them down,
01:28
except when I reported one conversation that
01:28
changed. In the next 24 hours, he got a little
01:28
mad about that, which I understand. But that
01:28
wasn't a negotiation. He was just making
01:28
noise.
01:28
And there certainly were times when
01:28
in drafting, he would have said, while you're
01:28
drafting, understanding our people are
01:28
drafting, he might offer comments or can you
01:28
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ensure that this kind of point is made or not

01:29
made. The decision being ours. Now, I don't
01:29
know whether you call that negotiation or not.
01:29
To me, it was not.
01:29
Q. And this email was written at
01:29
roughly the time that the consent decree was
01:29
entered into between Penn State and the NCAA?
01:29
A. This would have been the end. I
01:29
wouldn't talk to CCA members until it's
01:29
happening.
01:29
Q. And you have no reason to think that
01:29
this didn't accurately reflect your thinking at
01:29
the time about negotiation or lack of
01:29
negotiation with Penn State?
01:29
A. Well, I've tried to explain to you
01:29
what may be some legal distinction between
01:29
negotiation and my term negotiation in here.
01:29
And having said that, that's still my position.
01:29
Q. Okay.
01:29
A. I can repeat, I think -01:29
Q. Nope.
01:30
A. -- the answer I gave.
01:30
MR. KOWALSKI: And it also might be
01:30
fair, we can or can't, but to read the next 01:30
sentence after: This was not a
01:30
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negotiation. Which states: The NCAA

01:30
established the penalties and absent the
01:30
signature of the president, the matter
01:30
would have been referred to the more
01:30
cumbersome enforcement process. Just so
01:30
the record has the full language.
01:30
01:30
Q. Before we move on, the final
01:30
paragraph, I'm sure you can guess the clause:
01:30
I am now comfortable with the process here. I
01:30
was opposed early on.
01:30
The process to which you refer is
01:30
the executive committee disposition of the
01:30
Sandusky matter?
01:30
A. The -- well, to me both the
01:30
executive committee and Penn State's
01:30
disposition.
01:30
Q. Okay.
01:30
A. I think both agreed that this was
01:30
the way to put it behind them and to get on
01:30
with working on things like integrity
01:31
agreements and putting in place appropriate
01:31
controls to avoid this kind of problem.
01:31
Q. What caused you to become
01:31
comfortable with the process?
01:31
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A. Let me think about that a little bit

01:31
as that occurred. I think for me, it was the
01:31
interest of the institution to try and move
01:31
forward.
01:31
Q. The institution of?
01:31
A. Penn State.
01:31
Q. Okay.
01:31
A. There was interest in whether there
01:31
is a way, was a way to avoid what I called the
01:31
hard slog of the enforcement program, which I
01:31
said would, in fact, be imposed or would be
01:31
implemented if this didn't work. Recognizing
01:31
that there was no assurance on either side,
01:32
whether that would be concluded in a manner
01:32
that could -- would, I guess would result in
01:32
the death penalty. I suppose if you ran
01:32
through that process and understood it enough,
01:32
you'd know that there's so many issues related
01:32
to direct information and requirements for
01:32
development of information, that it would have
01:32
been very difficult over a long time to get
01:32
that accomplished.
01:32
And still, you had presidents and
01:32
others who were basically saying this case is
01:32
one in which the death penalty ought to be
01:32
44 (Pages 170 to 173)

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applied, the so-called death penalty. And to

01:32
me, this looked like the most appropriate way
01:32
to move forward. If you both want to put it
01:33
behind you, you want to begin to build a new
01:33
culture. And if the penalties that are
01:33
ultimately imposed are acceptable to all
01:33
parties.
01:33
Q. You agreed as a matter of NCAA
01:33
bylaws that the death penalty or suspension of
01:33
play could have been applied to Penn State as a
01:33
penalty had it gone through the enforcement
01:33
process?
01:33
A. Yes.
01:33
Q. And why?
01:33
A. Because I believe that. The final
01:33
decision would have been left to the committee
01:33
on infractions. But to that point, I don't
01:33
know if I had heard anyone other than maybe
01:33
Mark Emmert and Judy Genshaft say that anything
01:33
other than a so-called death penalty should be
01:33
applied. And that came from public, CCA
01:33
members, presidents, anyone I would have talked
01:33
to during that particular time in history.
01:34
Q. Did your comfort with the process -01:34
well -01:34
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A. I wasn't comfortable with the

01:34
process.
01:34
Q. Explain that, please. Tell me why
01:34
you weren't comfortable with the process.
01:34
A. Well, I'm never comfortable in
01:34
matters that are that concerning to all the
01:34
parties involved. So there's always going to
01:34
be some level of discomfort. I try to put
01:34
myself in the position of all of the people who 01:34
are going to be affected as well.
01:34
Q. Were you -- I'm confused, because
01:34
you do write that: I am now comfortable with
01:34
the process.
01:34
A. Process is the operative word there.
01:34
Q. Okay. Your comfort with the process 01:34
as opposed to perhaps the outcome or the
01:34
circumstances, was that engendered by the
01:34
result that was it reached between NCAA and
01:34
Penn State?
01:35
01:35
A. That certainly was a contributing
01:35
factor. I think the fact that the NCAA and the 01:35
institution were in agreement over the
01:35
institution taking responsibility for certain
01:35
acts and leaving the opportunity then to
01:35
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develop appropriate penalties to address those

01:35
acts, seemed to me to be an appropriate
01:35
process.
01:35
Q. Were there any other factors that
01:35
caused you to become comfortable with the
01:35
process, other than that one?
01:35
A. I -01:35
Q. That you recall?
01:35
A. I don't remember that day or what
01:35
else I was thinking, no. There may well be,
01:35
but I don't know.
01:35
Q. Let's turn to your negotiations with
01:35
Gene Marsh. First -01:35
A. There were no negotiations.
01:35
Q. Okay.
01:35
A. Now -01:35
Q. You used -01:35
A. I described earlier -01:36
Q. You're doing my job for me.
01:36
A. -- what that word meant to me.
01:36
Q. And I appreciate your description.
01:36
Let's call it your interaction with Gene Marsh
01:36
that led to the consent decree. First, tell me
01:36
who Gene Marsh is.
01:36
A. Gene Marsh is an individual who at
01:36
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one time, was the faculty athletic

01:36
representative at the University of Alabama.
01:36
He would have participated in an infractions
01:36
case that I was a party to when I was head of
01:36
the NCAA long ago, and became the faculty
01:36
representative who followed a faculty
01:36
representative who was actually implicated in
01:36
an earlier case.
01:36
Q. I beg your pardon, what case was
01:36
that?
01:36
A. University of Alabama. I don't know 01:36
what, 1990 something. And he subsequently
01:36
became a member of the committee on
01:37
infractions, which was the peer group I
01:37
described to you before, that acts as the, in
01:37
our system, the judges of the infractions
01:37
cases. And they hear all the information
01:37
presented by the enforcement staff and
01:37
institutions and individuals who are involved
01:37
in those matters. So they make findings of
01:37
fact and impose penalties, to the extent those
01:37
are warranted.
01:37
He, subsequent to that time, became
01:37
involved in private practice and has
01:37
represented, I think some institutions probably 01:37
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who participated in the infractions process

01:37
since he had some expertise in that area.
01:37
He was then hired by Penn State to
01:37
assist them in the consideration of this case.
01:37
I became aware of that around whenever we had
01:38
our first conversation, whatever that is. And
01:38
that probably brings Gene Marsh's bio
01:38
up-to-date as far as I'm concerned.
01:38
Q. Do you know how Gene Marsh came to
01:38
represent Penn State? And let me ask -- no,
01:38
I'll ask it a more direct way.
01:38
Do you know whether Gene Marsh was
01:38
recommended to Penn State by anyone at NCAA?
01:38
A. I don't know that.
01:38
Q. Have you heard that?
01:38
A. I have not heard that. I don't know
01:38
that.
01:38
Q. When do you recall your first
01:38
interaction with Gene Marsh on this matter?
01:38
A. Well, it's going to be July, some
01:39
day when I'm on a call with him.
01:39
Q. I'm going to try to get the date
01:39
narrowed down for us. Please hold.
01:39
A. You're right. There was some -- I
01:39
don't think I had talked to him until he had
01:39
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gotten back from that trip in Maine. I don't

01:40
recall when that was.
01:40
Q. Is that your recollection, his first 01:40
contact with NCAA was during his vacation in
01:40
Maine, and that was when he reached out to you
01:40
or Mr. Remy?
01:40
A. I'm not sure. At least I'm thinking 01:40
the university reached out to him when he was
01:40
in that location. And it was immediately
01:40
thereafter that I would have had a conversation
01:40
with him.
01:40
Q. How did you know that the university
01:40
reached out to him at around that time, I mean
01:40
when he was in Maine?
01:40
A. I don't know that firsthand. I
01:40
think I got it out of the same article you're
01:40
looking for.
01:40
Q. There's -- we'll move on, because if 01:40
it we find it, we'll find it and maybe it
01:40
doesn't really matter.
01:40
MR. HAVERSTICK: Mark for
01:40
identification 26, Tab 26. And that is
01:40
Berst 13.
01:40
01:40
identification.)
01:40
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Q. Now, overall, once Gene Marsh became 01:41

involved -- and I'll hand you that first. Go
01:41
ahead, look at that first and then I'll ask my
01:41
question.
01:41
A. Okay. I see this.
01:41
Q. Okay. In general -- and we'll go
01:41
through the dates so maybe we'll be able to be
01:41
even precise, is it accurate that the time in
01:42
which NCAA was interacting with Gene Marsh in
01:42
the process that led to the consent decree was
01:42
fairly compressed?
01:42
01:42
A. From my perspective, it was -- there 01:42
were probably no more than a couple-week
01:42
period.
01:42
Q. Is that in your -- with that
01:42
recollection, is that unusual in terms of
01:42
resolving -- I can't call it an enforcement
01:42
situation because it's not an enforcement
01:42
situation, but a matter in which NCAA wants to
01:42
impose discipline?
01:42
01:42
A. Yeah, that's, I think just a
01:42
nonsensical question. Because there's -- this
01:42
whole matter in many ways is unprecedented -01:42
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Q. And that's why is it nonsensical -01:42

I'm sorry to interrupt. I just want to make
01:43
sure I get it. It's nonsensical because
01:43
there's no -- we can't benchmark what happened
01:43
with Penn State against anything else that is
01:43
in NCAA's can, is that -01:43
01:43
A. The matters with which I would have
01:43
been involved in previously that might be
01:43
handled more quickly would have been an
01:43
enforcement process, which I was describing I
01:43
was interested in avoiding, even in the summary 01:43
disposition approach.
01:43
So what we were encountering was a
01:43
report that was delivered to the institution.
01:43
And my -- I think if there's some explanation
01:43
of speed, it had to do with the university's
01:43
reaction to whatever that report said.
01:43
Q. I'd like to lay a little foundation
01:44
for the interaction with Gene Marsh, just so
01:44
we're doing this in some sort of logical sense. 01:44
After the Freeh Report, is it the
01:44
case that President Emmert called Penn State
01:44
President Erickson and indicated that NCAA was
01:44
contemplating some action against Penn State
01:44
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University?
01:44
01:44
A. I don't know the substance of the
01:44
calls that may have occurred. I believe that
01:44
Mark Emmert had communications with President
01:44
Erickson during the same time I was having
01:44
conversations with Gene Marsh.
01:44
Q. Well, would that have been -- would
01:44
those conversations with President Erickson
01:44
necessarily had to have been before Gene Marsh
01:45
was retained, simply because Penn State would
01:45
not have known to hire a lawyer with NCAA
01:45
expertise until it was informed that NCAA was
01:45
contemplating action?
01:45
01:45
MS. DOBLICK: Objection.
01:45
A. I don't have an answer to that
01:45
question, no. I don't know.
01:45
Q. In the early conversations that
01:45
occurred between July 12 and July 17, both
01:45
among the executive committee and the, I call
01:45
it the working group. We agreed that's not
01:45
really what it was, but that's my shorthand for 01:45
it. Was it established in that time frame that 01:45
there was going to be action taken by NCAA
01:45
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against Penn State of some nature?

01:45
01:45
not to reveal privileged communications.
01:45
Are you asking -- if you have to get
01:46
into the details of discussions with
01:46
counsel, let me know.
01:46
A. There certainly was attention to
01:46
this matter is going to be processed in some
01:46
fashion. So there would have been discussions
01:46
again about process that might take place.
01:46
Q. But was it decided during that time
01:46
frame that there would be a process and it
01:46
would be applied to Penn State?
01:46
MR. KOWALSKI: So like did the NCAA
01:46
as an organization make that decision
01:46
basically?
01:46
MR. HAVERSTICK: Exactly.
01:46
MR. KOWALSKI: You can answer that
01:46
question.
01:46
A. And I believe the answer to that is
01:46
yes, but I'm basing that more on even the call
01:46
with the executive committee board of directors 01:46
wherein presidents were expressing the notion
01:47
that something is appropriate here and you need 01:47
to do more than simply, you know -- well, you
01:47
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need to do more with regard to Penn State.

01:47
Q. In that call, if you remember, did
01:47
President Emmert first suggest to the executive 01:47
committee that he believed action should be
01:47
taken by NCAA, or did the executive committee
01:47
express first we believe action should be taken 01:47
against Penn State?
01:47
A. I don't know the answer to that.
01:47
The call would have been led by Ed Ray. I
01:47
don't know what the question was or who
01:47
started.
01:47
Q. Okay. Did both President Emmert -01:47
well, I know the answer is yes, I think, for
01:47
the executive committee. And the executive
01:47
committee expressed a desire to move forward
01:47
with some action against Penn State, correct?
01:47
A. Yes.
01:47
Q. Did Dr. -01:47
A. At least individually. I don't know
01:48
that there was a vote taken.
01:48
Q. Okay.
01:48
A. But the sense of the group was
01:48
something needs to occur further. And Mark
01:48
Emmert, continue thinking about this, do more.
01:48
Q. Did Dr. Emmert, regardless of who
01:48
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said it first, did Dr. Emmert similarly

01:48
express, yes, we should do something against
01:48
Penn State?
01:48
A. I don't know if he used those words. 01:48
Q. The -01:48
A. As far as I'm willing to go is that
01:48
the president of the association agreed that he 01:48
would follow up further on this matter and
01:48
consider possible alternatives, consider what
01:48
to do next.
01:48
Q. Did you -01:48
A. And he would, I think, indicate -- I
01:48
think he indicated that he would be in contact
01:48
with Penn State directly.
01:48
Q. Was it your understanding as a
01:48
result of or after that phone call, that
01:48
Dr. Emmert also intended to move forward
01:48
against Penn State with some action, whatever
01:49
that might be?
01:49
01:49
form.
01:49
A. And I can't go that far at that
01:49
juncture. I don't know what his mindset was.
01:49
Q. Okay. You don't remember him
01:49
expressing -01:49
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A. All I knew was he was going to make

01:49
a phone call, I believe, to Penn State. I
01:49
don't know what the substance would be.
01:49
Q. Were you ever briefed on the
01:49
substance of that phone call between -- the
01:49
phone call between Dr. Emmert and Dr. Erickson?
01:49
A. I don't think at that time, no.
01:49
Q. Do you recall ever being briefed on
01:49
it?
01:49
A. Not briefed. I think later, I must
01:49
be aware of a phone call confirming that the
01:49
consent decree had been essentially approved.
01:49
Q. I'm talking about the very first
01:49
communication between Dr. -01:49
A. Yeah, and I don't know what those
01:50
were.
01:50
Q. You don't know. That's fair enough.
01:50
And I may nail down when that call
01:50
happened. But I think for our purpose, we can
01:50
agree that that phone call would have happened
01:50
after the executive committee individually and
01:50
then sort of collectively expressed a desire to
01:50
do something with respect to Penn State and
01:50
Mark Emmert indicated, yes, I will do
01:50
something?
01:50
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01:50
A. You asked me that and I told you I
01:50
wouldn't go there with you. All I said was the 01:50
president was going to make a follow-up call to 01:50
Penn State. Now, you tried to characterize it
01:50
as him doing something. I'm not willing to say 01:50
that. So quit asking me that.
01:50
Q. I'm not trying to characterize it in
01:50
any way, I'm trying to establish it temporally. 01:50
We can -01:50
A. Then use different words.
01:50
Q. All right. If -- you know, let me
01:50
just ask what I'm trying to get at. I'm trying 01:51
to establish a timeline. Because I know
01:51
earlier on you were concerned about specific
01:51
dates and making sure the dates were right.
01:51
And that's really the only purpose of this.
01:51
It's not to characterize who said what in a
01:51
phone call.
01:51
To your knowledge, was it after the
01:51
phone call, the first call between president
01:51
Erickson and Dr. Emmert, that Gene Marsh
01:51
reached out and contacted NCAA?
01:51
01:51
A. I don't know the timing.
01:51
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Q. Okay. We haven't nailed down the

01:51
date and we'll move on from when the phone call
01:51
to Gene Marsh was from Maine. But that is, to
01:51
your knowledge, the first time that Gene Marsh
01:52
reached out to NCAA?
01:52
A. I don't recall specifically whether
01:52
he was in Maine or leaving Maine or even at the
01:52
institution. But my recollection is that he
01:52
was heading back to the institution and that he
01:52
would be having some conversation with whoever
01:52
was appropriate to have conversations with at
01:52
the NCAA. And I don't recall specifically
01:52
where I have that recollection from, but I knew
01:52
that Gene Marsh was going to be representing
01:52
the institution.
01:52
Q. You testified earlier today that you
01:52
desired to participate in the process that
01:52
ended up involving Ed Ray and Gene Marsh; is
01:52
that right?
01:52
01:52
A. No. I may have said that I inserted
01:52
myself into the process when I understood that
01:52
Gene Marsh was going to be representing the
01:53
university.
01:53
Q. Why?
01:53
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A. Because I considered Gene Marsh to

01:53
be exceptionally familiar with NCAA processes
01:53
and bylaws and the like, and he had represented 01:53
a number of institutions. And I didn't have
01:53
the same confidence, frankly, in any of our
01:53
people. And I thought I could help because
01:53
both I understand the NCAA processes, how they
01:53
operate, where the authorities are, and because 01:53
I believe that Gene Marsh would believe me to
01:53
be a credible source of information.
01:53
Q. Did you -- do you include Mr. Remy
01:53
in the group of individuals you feel, I can
01:53
read it back, I don't want to characterize -01:53
A. No, I'll answer the question.
01:54
Q. Is he in that group of folks who has
01:54
a less superior knowledge of the bylaws than
01:54
you do?
01:54
A. In my opinion, yes.
01:54
Q. That's fine.
01:54
Were you asked by Mr. Remy or
01:54
Mr. Emmert or anyone else to participate?
01:54
A. I asked if I could participate. And
01:54
the answer was that, fine, yes.
01:54
Q. Who did you ask?
01:54
A. I think I asked Mark. I think it
01:54
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was Mark Emmert.

01:54
Q. Do you recall -- I think you said
01:54
and testified that you made this request after
01:54
you were aware that Gene Marsh was in the mix;
01:54
is that right?
01:54
A. Yes.
01:54
Q. So this conversation, was it a
01:54
conversation? Or was it via email with
01:54
Dr. Emmert?
01:55
A. It was a conversation.
01:55
Q. Did you -- were you told in this -01:55
and was it between you and Dr. Emmert only?
01:55
A. I think there were more people
01:55
involved. I don't recall Donald. I recall, I
01:55
think, Julie, Kevin Lennon, you know, the same
01:55
sort of group of people that you were talking
01:55
about.
01:55
Q. Do you recall Dr. Emmert expressing
01:55
what the goal of the interaction with Gene
01:55
Marsh was?
01:55
MR. KOWALSKI: And just to confirm,
01:55
this is not a meeting that involves
01:55
Mr. Remy? We agree, then, it's not -- the 01:55
purpose of this meeting is not to provide
01:55
or receive legal advice, is that your
01:55
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understanding?
01:55
A. I think I'm still in that category
01:55
at that point. My -- I didn't receive
01:55
instruction. I just indicated that -- the
01:55
reasons that I set out, I wanted to be involved
01:55
in those conversations. And that I thought of
01:56
anybody on our staff, I'd be able to think
01:56
through options as well or better than anybody
01:56
present.
01:56
Q. In that initial discussion with
01:56
Dr. Emmert, did anyone raise the notion that
01:56
the outcome of the discussion with Gene Marsh
01:56
would be a consent decree with Penn State?
01:56
MR. KOWALSKI: Objection to -- just
01:56
caution you not to reveal any legally
01:56
privileged communications to answer the
01:56
question.
01:56
Q. This is a conversation that didn't
01:56
have Remy in the room.
01:56
A. And I don't recall the timeline of
01:56
how there ended up being the consent decree.
01:56
That's not my term. So that doesn't come from
01:56
me. So I don't have that recollection. I just 01:56
wanted in so that I could make sure that
01:56
wherever it is -- wherever we went in terms of
01:57
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processing this case, that I could believe we

01:57
had the authority and ability to do it.
01:57
Q. You said of course, and you said
01:57
this a few times, you wanted in. What was your 01:57
understanding of the goal of what you were
01:57
getting in?
01:57
A. I wanted to help in the conclusion
01:57
of issues around Penn State at that point. You 01:57
still had an outstanding letter that had been
01:57
sent by the president of the association. You
01:57
had the Freeh Report that had just been
01:57
completed. You still had the cry of basically
01:57
everyone in the public about how horrible this
01:57
whole thing is, the NCAA needs to take action.
01:57
I assumed at least that there would
01:57
be further considerations along those lines,
01:57
and I wanted to be part of helping to make sure 01:58
it was a reasonable and appropriate process.
01:58
Q. You understood when you spoke with
01:58
Dr. Emmert that at that point, NCAA planned to
01:58
take action against Penn State of some nature?
01:58
A. Well, I don't know that I had
01:58
that -- I don't know who from. But my sense
01:58
was from all of those reasons that I stated
01:58
earlier, I thought this is going to be
01:58
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processed further. And Gene Marsh is going to

01:58
be a party to assisting the university in going
01:58
forward. There would be communications with
01:58
NCAA. And whatever those were, I want to be a
01:58
part of them.
01:58
Q. Was it your understanding at that
01:58
time and at that initial discussion with
01:58
Dr. Emmert, that there would be some punishment 01:58
meted out to Penn State through some form and
01:58
process?
01:58
MR. KOWALSKI: Objection to form. I 01:59
want to make sure to limit it to
01:59
conversation with Dr. Emmert that did not
01:59
involve Donald Remy and did not involve
01:59
legal advice, to your knowledge.
01:59
A. Yeah, I think I'm still there. And
01:59
I took no view in that regard. And that is my
01:59
training in enforcement.
01:59
This matter is going to be processed
01:59
further in some fashion. I didn't make a value 01:59
judgment on what that outcome might be. And so 01:59
I was inserting myself in order to gain that
01:59
kind of understanding and information, so that
01:59
comes later.
01:59
Q. Okay. No outcome in terms of
01:59
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punishment?
01:59
A. That wasn't my driver.
01:59
Q. And that wasn't something you
01:59
understood as the necessary end result, at
01:59
least initially when you had your conversation
01:59
with Dr. Emmert? He did not say, for instance,
01:59
the result is we're going to sanction Penn
01:59
State?
01:59
A. I'm -- no, that wasn't my -- that
01:59
wasn't my conversation.
02:00
Q. Okay. Now let's take a look at -02:00
what are we on there, Berst 13. This is an
02:00
email that starts out as an email from Gene
02:00
Marsh to Donald Remy, and then Donald Remy
02:00
forwards it on to you.
02:00
By the way, notwithstanding your
02:00
participation and presumptive superior
02:00
understanding of the bylaws, was Donald Remy
02:00
the chief spokesman for NCAA's -- the chief
02:00
interlocutor with Gene Marsh in this matter?
02:01
02:01
Q. Who is the skipper here?
02:01
MR. KOWALSKI: During the calls with
02:01
Marsh?
02:01
Q. In interacting with Marsh to resolve
02:01
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the matter with Penn State, who was the

02:01
decision-maker vis--vis you and Donald Remy?
02:01
A. Well, I'd say neither of us are the
02:01
decision-maker. We would be the ones involved
02:01
in communications with Gene. But often, that
02:01
may be simply as a reporter or as a conveyor of 02:01
information. So we certainly weren't the
02:01
decision-makers.
02:01
Q. Was Mr. Remy either officially or
02:01
non-officially designated as the primary point
02:01
of contact with Gene Marsh at this time?
02:01
A. Well, Donald Remy would have been
02:01
the general counsel of the NCAA. So to the
02:02
extent you'd have attorneys representing the
02:02
university, talking to attorneys representing
02:02
the NCAA, that's the natural and appropriate, I 02:02
think, mechanism for that to occur.
02:02
Q. The email, the July 17 email from
02:02
Gene Marsh to Mr. Remy references a phone call
02:02
from this morning. Do you have any knowledge
02:02
on what that phone call was about?
02:02
A. Not without seeing what he's
02:02
referring to, if it somehow looks like it's
02:02
referring to some comments from Mark Emmert. I 02:02
don't know what those are.
02:02
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Q. You don't know what those comments

02:02
are either?
02:02
A. No.
02:02
Q. Okay. Remy replies that: We did
02:03
not intend for our discussion into our process
02:03
to be public.
02:03
Was it your understanding that NCAA
02:03
desired confidentiality with respect to its
02:03
discussions with Gene Marsh and Penn State at
02:03
this point?
02:03
MR. KOWALSKI: Yeah, just caution
02:03
you not to reveal the contents of
02:03
privileged communications with Mr. Remy.
02:03
A. Yeah, I think I probably can't
02:03
answer that question.
02:03
MR. KOWALSKI: Okay. Then please
02:03
don't. Thank you.
02:03
Q. All right. There is a forward -02:03
I'm going to ask something, but I know Brian is
02:03
going to tell you not to answer it.
02:03
There is apparently -- there's a
02:03
redaction at the top of this email, right? You
02:03
see that, that big black box?
02:03
A. I didn't realize that's what it was,
02:03
but I see that, yes.
02:04
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Q. I'm going to represent to your

02:04
counsel that while we don't know what that
02:04
email says, the metadata for the email reveals
02:04
it to be an email from Remy to you regarding
02:04
Big 10. And that's in the re: line. Do you
02:04
recall -- and I'm not asking about the
02:04
substance of conversations, do you recall
02:04
conversations with Donald Remy around this time 02:04
that involved discussions about the Big 10?
02:04
MR. KOWALSKI: Yeah, we would have
02:04
to step out again.
02:04
MR. SEIBERLING: Well, look. Since
02:04
it's in the metadata and the re: line says
02:04
Big 10, I think to ask him whether he
02:04
recalls conversations without asking him
02:04
what the substance is -02:04
MR. KOWALSKI: Sure. If he can say
02:05
yes or no, I remember conversations with
02:05
Remy about the Big 10, I think we can go
02:05
that far.
02:05
MR. HAVERSTICK: That's fine. I
02:05
think if that was privileged anyway, it was 02:05
probably waived because it was -02:05
MR. KOWALSKI: If it was something
02:05
that wasn't put on the privileged log, it
02:05
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was obviously not privileged.

02:05
Q. I'm asking at this point whether you
02:05
recall either specifically in this email chain
02:05
or generally conversations with Mr. Remy
02:05
occasioned around the time of your discussions
02:05
with Gene Marsh that involved Big 10? I'm not
02:05
asking for the substance, just whether you
02:05
recall?
02:05
MR. KOWALSKI: He's just asking
02:05
whether you remember that.
02:05
A. Yes, I believe I remember that, yes.
02:05
Q. Okay. Are you able to -- are you
02:05
able to -- are you able to discuss the topic
02:05
matter of those conversations without revealing
02:05
any communication between you and Donald Remy
02:06
that either was legal advice from Mr. Remy or
02:06
was you providing information to solicit legal
02:06
advice?
02:06
MR. KOWALSKI: I think we just did
02:06
say the topic, so I don't think we can go
02:06
further than the topic which we just
02:06
conveyed.
02:06
MR. SEIBERLING: The subject matter,
02:06
actually.
02:06
MR. KOWALSKI: Whatever. The
02:06
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subject matter is the Big 10. I think

02:06
that's as far as you can go without getting 02:06
into the contents and details of the
02:06
privileged communication. You can ask him
02:06
all about the discussions with Gene Marsh. 02:06
I think that's pretty relevant.
02:06
Q. Yeah. Were you talking with Gene
02:06
Marsh about issues related to the Big 10?
02:06
A. At some juncture, I would have, yes. 02:06
Q. And what were those conversations?
02:06
A. Merely that there was a process as
02:06
well for consideration of Penn State by the Big
02:07
10. So just to be aware that there was a
02:07
process occurring among Big 10 presidents as
02:07
well.
02:07
Q. That Big 10 -- and by process, you
02:07
mean Big 10 was contemplating some action
02:07
against Penn State on its own?
02:07
A. They had a process to consider
02:07
information either made public or provided to
02:07
the Big 10 by Penn State.
02:07
Q. Do you know whether as a result of
02:07
your communications with Gene Marsh, Gene Marsh
02:07
began negotiations with the Big 10 over any of
02:07
those process issues that Big 10 was raising?
02:07
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A. I do not.
02:07
Q. Do you know what Big 10 sought to
02:07
accomplish with respect to its process
02:07
regarding Penn State?
02:07
A. No.
02:08
Q. Do you know whether Big 10 at this
02:08
point, contemplated some level of sanctions
02:08
against Penn State?
02:08
A. I don't know at that juncture.
02:08
Q. Ultimately, they did?
02:08
A. Yeah, I'm aware of that.
02:08
Q. Okay.
02:08
A. But I think at this point, no, I
02:08
didn't know that.
02:08
Q. Tab 27.
02:08
MR. KOWALSKI: Why don't we take a
02:08
quick break for a few minutes. We're still 02:08
on track?
02:08
MR. HAVERSTICK: Well, I mean if we
02:08
can -- yeah.
02:08
MR. KOWALSKI: If we're on track,
02:08
now would be a good last break.
02:08
MR. SEIBERLING: Here's what -- if
02:08
we take a quick break, I reckon we'll go
02:08
until 3:00. I think -- I think we can take 02:08
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a quick break around 3:00. And there may

02:08
be -- maybe there will be follow-up cleanup 02:08
questions.
02:08
MR. KOWALSKI: Just to give you a
02:08
chance.
02:08
MR. HAVERSTICK: I can burn through
02:08
quickly.
02:08
MR. KOWALSKI: We'll take a quick
02:08
break now. Space this out a little bit.
02:08
Now is the right time.
02:09
02:09
Q. All righty, Mr. Berst. While we
02:20
were off the record, we were looking on an
02:20
iPad -- because that's the age in which we
02:20
live -- at a document I will read into the
02:20
record is NCAA JC 00014366. And this is an
02:20
email dated Sunday, July 15. Subject, call
02:20
from Gene Marsh to Donald Remy. And it's a
02:20
back and forth between Messrs. Remy and Marsh,
02:20
and you are not on this email.
02:21
I showed it to you during the break,
02:21
and I will read into the record that the first
02:21
email from Gene Marsh reads: Hi, Donald.
02:21
Thank you for the call Friday. Do you have
02:21
time to talk briefly on Monday? I am still on
02:21
51 (Pages 198 to 201)

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the trip. Get back late Tuesday but have time

02:21
tomorrow. Let me know if you do and what time
02:21
and your office phone. And then he talks about 02:21
where he is in Maine.
02:21
If Sunday, July 15 was, in fact, 15,
02:21
that would make the Friday call referenced,
02:21
Friday, July 13. Does me reading this email or 02:21
reading those dates to you refresh your
02:21
recollection or otherwise inform you about when 02:21
the first time you recall Gene Marsh
02:21
materializing in these discussions?
02:21
A. Well, it helps me a little. And I'm
02:21
still thinking I may not be involved yet with
02:22
Marsh. I believe that I would have been on a
02:22
call involving the executive committee earlier
02:22
than that.
02:22
And that Donald begins to make
02:22
those, get in touch with Gene. And I have a
02:22
feeling the call where I try to insert -- or
02:22
the call, the meeting where I insert myself
02:22
hopefully is probably Monday or right about
02:22
then. And then I begin to have conversations
02:22
with Gene or get included in the conversations
02:22
with Gene.
02:22
Q. Are the communications, once you
02:22
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become included with Gene and with Remy,

02:22
primarily by phone, primarily by email, or is
02:22
there no primarily?
02:22
A. Primarily by phone; some by email.
02:22
Q. Are these three-person telephone
02:23
calls? Is there anyone from NCAA participating
02:23
other than you and Mr. Remy?
02:23
A. No.
02:23
Q. Do you recall if Gene Marsh had an
02:23
associate or a colleague from his law firm
02:23
participating on these calls?
02:23
A. Not in very good detail. I think
02:23
there would have been a call or two where
02:23
someone from the university would have
02:23
participated, but that would have been
02:23
infrequent, I think, in those calls.
02:23
Q. Why in these early telephone calls,
02:23
if you know, was Julie Roe not a participant?
02:23
MR. KOWALSKI: And please don't
02:23
reveal the contents of privileged
02:23
communications with Donald Remy or other
02:24
NCAA legal counsel.
02:24
A. I don't have any way of answering
02:24
that. Julie Roe was not a consideration for me
02:24
because I was trying to find some way into this
02:24
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process in an effort to either find a way to

02:24
avoid enforcement or if we had to go
02:24
enforcement, then you can certainly involve
02:24
Julie Roe. But it seemed to me to be premature 02:24
to do that.
02:24
Q. No need for an enforcement person
02:24
until you decide you're going to go the
02:24
enforcement route, and that hadn't been decided 02:24
yet?
02:24
02:24
A. From my perspective, that's right.
02:24
Q. When do you recall your
02:24
conversations with Mr. Remy and Mr. Marsh -02:24
I'm not asking about your conversations with
02:24
Mr. Remy alone. I'm only asking about the
02:24
three of you. When do you recall the first
02:24
time that conceptually what we now know as the
02:24
consent decree was discussed? And you can call 02:25
it whatever you want. I'm not wedded to the
02:25
term. That's just the term I have for it.
02:25
A. I believe in my first call with Gene
02:25
Marsh -02:25
Q. Who -02:25
A. -- I probably wouldn't have used the 02:25
words consent decree, I don't think that
02:25
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existed. But I would have talked through

02:25
things like, well, all of the processes with
02:25
him, including stipulating to matters that
02:25
could be handled more quickly.
02:25
Q. Is the first time conceptually what
02:25
became the consent decree was discussed among
02:25
anyone, was when you discussed it as a
02:25
possibility, regardless of what it was called?
02:25
MR. KOWALSKI: Don't reveal any
02:26
privileged communications in answering,
02:26
please.
02:26
A. I believe that to be the case. It
02:26
may not have been the first conversation where
02:26
that would occur. But the idea certainly
02:26
surfaced in that, in a call with Gene. And he
02:26
became very interested in whether there was
02:26
some possible process that could be quicker
02:26
than going through what I call -- I'm sure I
02:26
used the word, I have everywhere else -- the
02:26
hard slog of trying to go through infractions.
02:26
Q. Did the idea for the concept that
02:26
became the consent decree originate with you?
02:26
A. I don't think -- I don't know the
02:26
word consent decree.
02:26
Q. Me neither.
02:26
52 (Pages 202 to 205)

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A. So I don't believe that word was

02:27
mine. I think looking for a way to move more
02:27
quickly was certainly mine. And there may have 02:27
been other people trying to figure out how you
02:27
might get there from here. But I was saying
02:27
that to anyone I was talking to.
02:27
Q. So at least with respect to -- well,
02:27
I'll ask internally and object, and we can
02:27
figure out if you can answer.
02:27
Internally inside NCAA, do you
02:27
recall you being the first proponent of this
02:27
worked out notion? I don't know what to call
02:27
it. You know what we're talking about. The
02:27
concept that ultimately ended up with the
02:27
consent decree product, did that thought
02:27
process, idea, emanate with you internally?
02:27
MR. KOWALSKI: So I'll object to the 02:27
form of the question. And you can answer, 02:28
you know, the yes-or-no question that he's 02:28
posed to you.
02:28
A. Yeah, I don't -- I don't know the
02:28
answer to that for sure. I was advocating all
02:28
possible approaches, that quicker and avoiding
02:28
enforcement would be the best. Now, whether it 02:28
was me or someone else who actually put the
02:28
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pieces together, I'm not sure who did it first. 02:28

Q. Was it -- from the time of your
02:28
involvement to the conclusion of the process
02:28
with Gene Marsh, was your preferred mode to
02:28
resolve the matter with Penn State by the use
02:28
of a vehicle that became the consent decree?
02:28
In other words, a cooperative, collaborative
02:28
agreement or stipulation or, you know, what
02:29
have you?
02:29
02:29
Q. It's a lousy question. I'm just
02:29
trying -02:29
A. I question whether I was that smart
02:29
at the very beginning in the first call. But
02:29
soon I became intensely interested in trying to
02:29
pursue that.
02:29
Q. Was your intense interest and
02:29
concept for what the outcome ultimately became
02:29
informed by the -- you're going to have to tell 02:29
me the right term for it -- but informed by the 02:29
use of the vehicle in the enforcement process,
02:29
the stipulated process?
02:29
A. Yes, that was a process that I had
02:29
been involved in developing, so I was familiar
02:29
with it, yes.
02:29
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Q. Conceptually at least in your mind

02:29
when you were thinking through the resolution
02:29
with Gene Marsh and discussing it, were you
02:29
modeling it at least in part on that vehicle
02:29
that you had used in the enforcement side,
02:29
understanding this wasn't an enforcement
02:29
action?
02:30
A. Not entirely. It was merely trying
02:30
to establish some sort of a stipulated
02:30
agreement, what is it that we all can agree to
02:30
here, is there something. And if there is,
02:30
maybe there's a way to move this more quickly.
02:30
Q. You indicated that Gene Marsh was
02:30
receptive to this as a solution?
02:30
02:30
A. He was, he was listening, I think,
02:30
to any of the possible options. Eventually, he 02:30
became interested in that concept, but I don't
02:30
know the timing of when he got onboard. And I
02:30
just don't know the answer to that.
02:30
Q. Did he propose any other modes or
02:30
solutions for this process, other than your
02:30
concept of the stipulated agreement or whatever 02:30
we call it? We know what we're talking about
02:31
now, I think.
02:31
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A. We talked through all the other

02:31
options and he said what ifs. We talked about
02:31
stipulated agreements or the summary
02:31
disposition, and talked about a normal
02:31
infractions investigation, how that might go.
02:31
Are there, you know, are there those that are
02:31
motivated to go that way. The answer to that
02:31
was yes. And are there other options. I think
02:31
he was just trying to find other options
02:31
himself, as was I.
02:31
Q. Who was motivated to use the
02:31
infractions process?
02:31
A. Everybody that I talked to. I mean, 02:31
anyone in the public thought the infractions
02:31
process ought to be imposed, you know, probably
02:31
even unilaterally on Penn State. But
02:31
obviously, that couldn't happen.
02:32
Q. Well, when you say in the public, do 02:32
you mean friends and family? Or do you mean
02:32
the public as in your colleagues and members,
02:32
you know, athletic directors, presidents, that
02:32
public?
02:32
MR. KOWALSKI: So we're not talking
02:32
about conversations with Remy just right
02:32
now.
02:32
53 (Pages 206 to 209)

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A. Correct, we're not. We're talking

02:32
about, yes, conversations I might have with
02:32
institutional personnel or even listening to
02:32
presidents talk. I don't think any of them
02:32
were familiar with nuances of how you do
02:32
various process or how you handle various
02:32
processes. But their interest was pursuing is
02:32
through enforcement.
02:32
Q. Internally at NCAA, were there
02:32
people using the traditional enforcement or
02:32
infraction process?
02:32
MR. KOWALSKI: I caution you not to
02:32
reveal any privileged communication.
02:32
A. I'm not sure that I've had those
02:33
conversations, other than in the presence of
02:33
Donald and other of those vice presidents, so I 02:33
don't think I can answer that.
02:33
Q. I'm going to ask it another way that
02:33
I think you can. Your counsel will tell you.
02:33
Did Dr. Emmert ever express to you a preference 02:33
for the enforcement mechanism or the
02:33
enforcement process versus another process?
02:33
MR. KOWALSKI: In the context of
02:33
meetings with Mr. Remy -02:33
A. I don't think he offered a
02:33
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preference. I think -02:33

MR. KOWALSKI: Let's be careful not
02:33
to go into too much detail on this,
02:33
Mr. Berst.
02:33
THE WITNESS: Okay.
02:33
MR. KOWALSKI: First, were the
02:33
communications you're thinking about with
02:33
President Emmert in the presence of legal
02:33
counsel?
02:33
THE WITNESS: Yes.
02:33
MR. KOWALSKI: We have to be
02:34
careful.
02:34
Q. Your answer was no, you don't recall
02:34
him expressing a preference?
02:34
MR. KOWALSKI: Right. So we don't
02:34
have to go there.
02:34
Q. You're going to be annoyed?
02:34
MR. KOWALSKI: Which one of us?
02:34
MR. HAVERSTICK: Everybody.
02:34
Everybody but me. Probably me too.
02:34
Q. Catalog for me the options you
02:34
recall being discussed with Gene Marsh for ways
02:34
to resolve the situation?
02:34
A. I think I've already talked about
02:34
all of them. The, what I call the hard slog of 02:34
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simply sending out NCAA investigators without

02:34
any prior information even to begin to inquire
02:34
into matters related to Penn State. Evaluating 02:34
not just what's known through the public media
02:34
but the rest of the athletics program as well.
02:35
Q. Would that be through the auspices
02:35
of the traditional infractions process?
02:35
A. Yes.
02:35
Q. Okay. That's one.
02:35
A. Would be simply taking the Freeh
02:35
Report and using that as a starter in launching 02:35
an NCAA inquiry into the athletics practices of 02:35
the university, not limited to those matters
02:35
that were included in the Freeh Report.
02:35
Q. Also an infractions auspices?
02:35
A. Yes.
02:35
Q. Okay.
02:35
A. The so-called stipulated agreement
02:35
of facts. And then the possibility if those
02:35
point out NCAA rule violations like
02:35
institutional control, taking that as a summary 02:35
disposition kind of a case through the normal
02:35
infractions process.
02:36
Q. On that point, I neglected to ask
02:36
this earlier. As a matter of process, if there
02:36
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was a stipulated factual determination like

02:36
that, does the committee on infractions then
02:36
impose punishment as a separate proceeding or
02:36
do you also stipulate to the punishment?
02:36
A. You don't stipulate to the
02:36
punishment. It is as a result of the hearing
02:36
with the committee on infractions to review the
02:36
stipulated findings and the penalties assessed. 02:36
Q. So that's three. Those all involve
02:36
a traditional infractions process. Other than
02:36
doing nothing, is the fourth the process that
02:36
is outside the infractions process which
02:36
results in the executive committee doing
02:36
something, approving something?
02:36
02:36
A. Well, the fourth would be the
02:36
executive committee assuming jurisdiction in
02:36
the matter because they consider it to be so
02:37
heinous an offense and a matter that demands
02:37
being addressed by the overall association.
02:37
And I'm sure we covered all of those, including
02:37
by the time I talked to him, the fact that we
02:37
had at least one call of the executive
02:37
committee members wherein they, individually as
02:37
I described earlier, had almost to a person
02:37
54 (Pages 210 to 213)

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indicated that they believed penalties such as

02:37
the so-called death penalty appeared to be
02:37
appropriate in this kind of a matter. So I was 02:37
trying to explain to him that from my
02:37
perspective, this was a grave situation.
02:37
Q. Options 1, 2, 3 would all be what
02:37
you've characterized as hard slogs, long slogs. 02:38
Those are processes that occur over a period of 02:38
time, correct?
02:38
A. Yes.
02:38
Q. Process 4 is one that could be, on
02:38
the other hand, wrapped up potentially quite
02:38
quickly?
02:38
A. Well, I'm not sure in the first
02:38
conversation we would have that I would know
02:38
how to do that at that juncture. I believe
02:38
that the executive committee had interest in
02:38
assuming jurisdiction, but I don't know that I
02:38
knew the -- I don't think I knew of the consent 02:38
decree at that point.
02:38
Q. Was it ever communicated to Gene
02:38
Marsh that there was a desire by NCAA to
02:38
resolve this matter quickly?
02:38
A. Well, I don't know how it would have 02:38
been phrased. I certainly would have been
02:38
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involved in conversations with him, with Gene

02:39
Marsh about the -- eventually when there was a
02:39
set, there was an actual report from Freeh that 02:39
the institution accepted, would follow through
02:39
with in implementing recommendations and would
02:39
assume responsibility for, I saw that as a
02:39
matter that could be used by the executive
02:39
committee to assess appropriate penalties.
02:39
Q. When did the appropriate penalties
02:39
begin to materialize? In other words -02:39
A. There was a second call of the
02:40
executive committee in which much of the same
02:40
kind of thinking, attitude of individual
02:40
presidents I think was expressed. But there
02:40
was an agreement by the presidents to permit
02:40
the president of the association to evaluate
02:40
what he believed might be the most palatable,
02:40
most appropriate set of penalties that could be 02:40
attached to the so-called consent decree. And, 02:40
you know, that may or may not then include the
02:40
so-called death penalty. I think there were
02:40
some still saying do that, but there at least
02:40
was authorization for him to consider further
02:40
what to do.
02:40
Q. Did you believe that Gene Marsh on
02:40
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behalf of Penn State had the right to reject a

02:41
proposal that involved executive committee
02:41
consideration and instead opt for the
02:41
infractions process?
02:41
A. At every step. And I believe -- I
02:41
don't know that he could do that
02:41
unilaterally -- his obligation I would expect
02:41
would be to go back to Erickson or whoever else 02:41
he was reporting to at the institution and any
02:41
or all of them could take that step at any
02:41
juncture.
02:41
Q. And had that step been taken,
02:41
assuming appropriate authority from president
02:41
Erickson, would NCAA to your knowledge have
02:41
honored that request and instead used the
02:41
traditional infractions process?
02:41
02:41
Go ahead.
02:42
A. I believe that it would have, yes.
02:42
Q. Was that a topic of discussion
02:42
internally?
02:42
MR. KOWALSKI: You can answer yes or 02:42
no.
02:42
Q. Yeah.
02:42
A. I don't believe so.
02:42
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Q. You're premising your answer on your 02:42

understanding of the situation, or was it based 02:42
more on your understanding of what the bylaws
02:42
are?
02:42
MR. KOWALSKI: You can go ahead and
02:42
answer, don't reveal -02:42
A. Take me back to what your real
02:42
question is.
02:42
Q. How did you come to understand -02:42
no, no, no, that's the wrong question. What's
02:42
the source of your knowledge or information
02:42
that you believed that had Marsh rejected
02:42
executive committee scrutiny and instead opted
02:42
for the enforcement process, that NCAA would
02:42
have agreed, all right, we'll do the
02:42
enforcement process?
02:42
MR. KOWALSKI: Just caution you not
02:42
02:43
02:43
A. I probably come to that conclusion
02:43
on my own just based on how I think the
02:43
processes would work.
02:43
Q. And what processes are those?
02:43
A. The enforcement process and the
02:43
executive committee jurisdiction.
02:43
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Q. Is there a mechanism by which a

02:43
member may compel adjudication by the
02:43
enforcement process as opposed to some other
02:43
process?
02:43
02:43
A. I'm not sure that I follow you. Any
02:43
time there's a potential violation of NCAA
02:43
rules, the enforcement process is the natural
02:43
one to come into play.
02:43
Q. But that's not here yet when you're
02:43
talking to Gene Marsh what was happening,
02:43
right?
02:43
02:43
A. I can't answer that for sure. From
02:43
my perspective, I was trying to keep it away
02:44
from the -- whether you had a violation or not
02:44
made no difference to me. The university may
02:44
well have acknowledged violations either in the
02:44
Freeh Report or separately in the consent
02:44
decree. That wasn't important in my view. If
02:44
there was a set of facts for which they took
02:44
responsibility, that was enough for the
02:44
executive committee to act. And the
02:44
institution could demand that the matter be
02:44
handled by the enforcement process.
02:44
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Q. So that was an option that was open

02:44
to Penn State at that time?
02:44
A. Yes.
02:44
Q. Rather than the option that became
02:44
the consent decree, your testimony is the
02:44
university could have chosen to be adjudicated
02:44
through the enforcement process?
02:45
A. At any point in the process, not
02:45
just then.
02:45
Q. Was it ever communicated to the
02:45
university, either by you or by anyone else, to 02:45
your knowledge, that if Penn State chose to
02:45
invoke the enforcement process, that it was at
02:45
serious risk of receiving the death penalty?
02:45
A. In my conversations with Gene, I
02:45
indicated that there certainly would be
02:45
interest in pursuing the matter and that it is
02:45
possible that the death penalty would be
02:45
imposed. That was how I was reading the mood
02:45
of the membership and the public basically.
02:45
Q. I want to be careful because I don't 02:45
want to inquire about your conversations with
02:45
Mr. Remy if they get into legal advice.
02:45
A. That's my conversation with Gene.
02:45
Q. Gene Marsh. Did you -- was -- did
02:45
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the words you used to express that sentiment

02:46
express a sentiment that Gene, you are likely
02:46
to get the death penalty if you go the
02:46
infractions route or, Gene, it's on the table
02:46
if you go the infractions route?
02:46
A. It was probably closer to the
02:46
latter, that the so-called death penalty comes
02:46
into play. And there would be those that would
02:46
advocate for it.
02:46
Q. Now, at the time you're having these
02:46
conversations with Mr. Marsh, has the
02:46
possibility of the alternative process
02:46
involving the executive committee matured to
02:46
the point that it's coalesced into a real
02:46
thing, a description of a process that could be
02:46
used?
02:47
02:47
Q. Did he have alternatives at that
02:47
point, in other words?
02:47
A. I think he always had alternatives,
02:47
and the consent decree alternative may have
02:47
been slower in developing than the others but
02:47
couldn't -- it must have hours or a day or
02:47
something.
02:47
Q. Do you recall a conversation with
02:47
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Gene Marsh in which the substance of the

02:47
communication was Penn State can accept the
02:47
punishments it will get through the executive
02:47
committee and, you know, a stipulated result, a
02:47
consent decree, whatever by that point it was
02:47
being called, or it can go the infractions
02:47
route and it runs serious risk of the death
02:47
penalty?
02:47
A. I don't think it was ever phrased
02:47
that way. I think it was -- and I think it was 02:47
understood by Gene that we might not ever get
02:47
to the point where we could prove a case that
02:48
would finally result in the death penalty. I
02:48
believe there were people interested in heading
02:48
in that direction.
02:48
But I would guess he didn't consider 02:48
that a realistic threat. I think he knew all
02:48
the problems we would have in developing the
02:48
case.
02:48
Q. You don't believe that Gene Marsh
02:48
thought that the imposition of the death
02:48
penalty was a realistic threat, if he proceeded 02:48
with -02:48
A. That isn't what I said.
02:48
Q. That's why I'm trying to be clear.
02:48
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A. That if you went the enforcement

02:48
investigation route, that there were -- I think
02:48
he was as well aware as I was of the various
02:48
impediments in making it to the end of that
02:48
process, that at which time, the death penalty
02:48
could be considered. I think he knew that it
02:48
was relatively unlikely we could prove the case
02:48
adequately to get there.
02:48
Q. Was that ever said aloud or that is
02:49
your understanding of what you believe Gene
02:49
knew? Did you two discuss that openly?
02:49
A. Yes, and I think he even said that.
02:49
Q. Something like you're going to have
02:49
problems proving your case?
02:49
A. Yes.
02:49
Q. Was the option of the executive
02:49
committee's process that became the consent
02:49
decree ever presented to Gene Marsh as one that
02:49
would not include the death penalty?
02:49
A. Well, at the very end when the
02:49
actual consent decree was a part of the final
02:49
package, the penalties included, I don't
02:49
believe included no play in the sport. I'm not
02:49
certain of that. You can correct me if that's
02:49
wrong. I was thinking it was a several-year
02:49
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period of being out of post-season play rather

02:50
than you can't compete.
02:50
Q. Who within NCAA determined the
02:50
precise punishments that would be implemented
02:50
as part of what became known as the consent
02:50
decree -- became known as the consent decree?
02:50
MR. KOWALSKI: One second, please.
02:50
Let's just find out how he knows and then
02:50
answer the question.
02:50
A. Yeah, I don't think I can get -- I
02:50
don't know if I can answer that, because I
02:50
don't recall any conversations that wouldn't
02:50
have involved Donald at that point.
02:50
Q. We'll take two minutes and if you
02:50
can't answer the question, you can't answer the
02:50
question.
02:50
02:52
MR. KOWALSKI: So can we have the
02:52
question read again so he can answer it.
02:52
BY MR. HAVERSTICK:
02:52
Q. Yeah, please have her read it back.
02:52
(Record read as requested.)
02:53
A. I think I can answer that. And I
02:53
said this earlier, in the second call of the
02:53
executive committee, they authorized Mark
02:53
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Emmert to explore what he would consider to be

02:53
the appropriate set of penalties that might
02:53
attach to a so-called agreement with Penn
02:53
State.
02:53
Q. Mark Emmert developed the specific
02:53
penalties that became attached to the consent
02:53
decree?
02:53
A. Yes.
02:53
Q. Were those communicated to you and
02:53
Mr. Remy as deal points to be communicated to
02:53
Gene Marsh?
02:53
MR. KOWALSKI: Hold on one second.
02:53
Sorry. That is a communication with legal 02:53
counsel for privileged purposes, so you
02:54
can't answer that question.
02:54
Q. Did you modify any of the penalties
02:54
decided upon by Dr. Emmert prior to
02:54
communicating them to Gene Marsh?
02:54
MR. KOWALSKI: Be careful not to
02:54
reveal any privileged communications. He's 02:54
asking a yes-or-no question, so I think you 02:54
can answer that.
02:54
A. The answer is no.
02:54
Q. Did, to your knowledge, the
02:54
executive committee delegate or deputize -- I
02:54
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don't mean those words precisely -- the

02:54
authority to determine an appropriate
02:54
punishment attached to the consent decree to
02:54
Dr. Emmert?
02:54
A. He was authorized to explore
02:54
essentially a recommended penalty to the
02:54
executive committee. They would have the final 02:54
authority to adopt it or not adopt it.
02:55
Q. And that authority would be
02:55
exercised at some point where presumably
02:55
Dr. Emmert would report back, we have agreement 02:55
with Penn State on the following terms,
02:55
approve, not approve, executive committee?
02:55
A. The -- well, I wouldn't phrase it
02:55
quite the same way. Because from the Penn
02:55
State side of things, once they agreed to the
02:55
Freeh Report and to accept responsibility for
02:55
it, the so-called consent decree was developed.
02:55
And once that was accepted, they were informed
02:55
of penalties. But there, I believe already was 02:55
the understanding that whatever it was the NCAA 02:55
was going to ultimately do, they understood.
02:56
Q. As I understand your answer from
02:56
perhaps an hour ago about negotiation, Gene
02:56
Marsh was not at liberty to negotiate the
02:56
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precise terms of the penalty?

02:56
A. I don't know what Penn State said he 02:56
could do.
02:56
Q. But with respect to the NCAA's side, 02:56
NCAA was not -- you weren't empowered to
02:56
entertain, "I don't want to pay 60 million, I
02:56
want to pay 30 million," as an example?
02:56
A. I was just involved in reporting
02:56
information. And, I mean, the reference you
02:56
make is interesting because that comes as a
02:56
result of one of the first calls when the
02:56
comments were made by individual presidents
02:57
about, you know, this may -- this may be the
02:57
kind of thing that deserves, you know, severe
02:57
penalties. And actually, I had earlier used a
02:57
financial penalty and I said $30 million. And
02:57
in that conversation, the executive committee
02:57
used the word $60 million. So I was merely
02:57
reporting the significant nature of a financial 02:57
penalty that was probably going to be involved
02:57
in whatever might occur.
02:57
And so there was no negotiation.
02:57
But what happened was I said one thing that
02:57
changed from what I was understanding myself to 02:57
a different figure from the board of directors' 02:58
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perspective. And you somewhere have, I'm sure, 02:58

an email that says that kind of made him mad.
02:58
And I don't blame him, but that didn't change
02:58
anything.
02:58
Q. Now, on that point, did the
02:58
executive committee authorize your negotiating
02:58
team to first implement a term of $30 million,
02:58
or did you come up with the $30 million figure? 02:58
A. Well, I first object to referring to
02:58
us as a negotiating team. And I talked to you
02:58
earlier about the word negotiation.
02:58
Q. Team NCAA.
02:58
A. What occurred was that the
02:58
$30 million figure was intended to be
02:58
illustrative of the potential seriousness of
02:59
the case from the perspective of the board.
02:59
And while Mark was provided authority to come
02:59
back with an additional recommendation to the
02:59
executive committee, I took the 30 million from 02:59
the conversation that was taking place on the
02:59
phone and had no concept that that might
02:59
change. And it changed, but it had nothing to
02:59
do with any correspondence with Penn State or
02:59
Gene Marsh. It was, you know, just me
02:59
reporting wrong information.
02:59
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Q. And so -- okay. I think that

02:59
answers my question.
02:59
It was -- the 30 million figure was
02:59
a miscommunication to Gene Marsh or
02:59
misunderstanding by you of the penalty that the
02:59
executive committee wanted to impose, rather
03:00
than executive committee or Dr. Emmert saying
03:00
propose 30 million and then deciding, you know
03:00
what, propose $60 million?
03:00
MR. KOWALSKI: Object to form. Go
03:00
ahead.
03:00
A. No. My interest was in trying to at
03:00
least advise the institution and Gene that
03:00
there was going to be a significant financial
03:00
penalty involved, and that was my only
03:00
intention. And then I realized that that was
03:00
not going to -- going to be considered
03:00
adequate, so it was going to be something like
03:00
60.
03:00
Q. You came up with the figure that you
03:00
thought as you said was illustrative of the
03:00
idea that NCAA had in mind and you communicated
03:00
that to Gene to give him an idea what you were
03:00
talking about, and then learned that actually
03:00
NCAA was considering a higher sum; fair?
03:00
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A. I think that's about right, yes.

03:01
Q. I'll show you the email in a minute,
03:01
because I'm going to try to run through those
03:01
quickly. On the issue of the revocation of the 03:01
wins, is it the case that when there was a
03:01
final discussion of penalties, it simply was an 03:01
omission by NCAA's side to mention that to Gene 03:01
Marsh?
03:01
A. It was indeed. The information was
03:01
provided by telephone, and that was just in a
03:01
different column. And I recognized that there
03:01
was a failure to report that information, which 03:01
I think was immediately corrected.
03:01
Q. Is -- were the -- I don't want to
03:01
call them deal terms because I don't want you
03:01
to get mad at me. Were the terms that
03:01
Dr. Emmert developed as the punishment terms
03:01
ever given to you in any kind of written
03:02
document? Is there a sheet, a spreadsheet
03:02
saying, for instance, here's what they are?
03:02
03:02
A. No, I never had any such thing. And 03:02
I don't know how to respond beyond that,
03:02
because that would involve Donald Remy.
03:02
03:02
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03:02
identification.)
03:02
Q. All right. Let's take a look
03:02
quickly at Tab 27, which is Berst 14. I've
03:02
been imprecise in trying to nail down dates
03:02
where the settlement discussions, for lack of a
03:02
better term, are developing. If as we go
03:02
through these emails, it helps you to
03:02
articulate that yes, I remember on this date,
03:02
the conversation had developed here, please let
03:02
me know.
03:03
This is an email, at least the
03:03
non-redacted part is an email from Gene to you,
03:03
re: Question. Do you recall reading this
03:03
email what the question was?
03:03
A. No, I don't.
03:03
Q. Do you recall Gene Marsh calling you
03:03
on July 17, either on your cell or your direct
03:03
line?
03:03
A. I don't recall specifically. He
03:03
would have called me, you know, half a dozen
03:03
times probably.
03:03
Q. Would he have called you primarily
03:03
to discuss issues like an intellectual debate
03:03
over the applicability of the death penalty?
03:03
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03:03
A. He -- I don't recall him calling for 03:04
that reason. He would call related to, you
03:04
know, a process kind of a question that I
03:04
probably know more quickly than anyone else.
03:04
Q. As an aside, when -- well, you
03:04
testified that there was discussion about the
03:04
perceived difficulty of proving a case on the
03:04
enforcement side. And that was at least Gene
03:04
Marsh's suggestion to you, that there would be
03:04
problems with that case, right?
03:04
A. He recognized the same impediments
03:04
that I did.
03:04
Q. Did he in -- well, did he raise as
03:04
an impediment his belief that only repeat
03:04
offenders could receive the death penalty?
03:04
A. He did ask that question, whether a
03:04
so-called death penalty could be imposed in the
03:04
first instance rather than only in a repeat
03:05
violator case.
03:05
Q. And what did you tell him?
03:05
A. I told him it could, in fact, be
03:05
applied. That there was no limitation,
03:05
frankly, on the committee on infractions in
03:05
imposing any set of penalties that it wished
03:05
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to.
03:05
Q. Do you know if that view of the
03:05
applicability of the death penalty is accepted
03:05
throughout the enforcement division?
03:05
A. I would say that -- I don't know
03:05
precisely whether that's -- whether that's the
03:05
practice in all instances. It's -- it was a
03:05
set of bylaws that I actually wrote so I know
03:05
the room was left to do that.
03:05
Q. Are you aware of the death penalty
03:05
being imposed on a member that was not a repeat
03:05
offender?
03:05
A. Well, yes. McMurray college in the
03:05
sport of tennis. Actually, there's been a
03:06
couple of self-imposed similar cases involving
03:06
Tulane University and University of San
03:06
Francisco. Other than that, it would be a
03:06
repeat violator case involving SMU.
03:06
Q. What were the facts in the McMurray
03:06
tennis team case?
03:06
A. It was an out of control booster of
03:06
a program. I say out of control. There might
03:06
be some objection from somebody else when I say
03:06
that.
03:06
Q. Not from me.
03:06
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A. But it was a relative of the tennis

03:06
coach and it related to benefits provided to
03:06
international student athletes that were part
03:06
of their team for a period of years.
03:06
Q. Did Gene Marsh challenge you on your
03:06
position that repeat offenders -- I'm sorry,
03:06
that non-repeat offenders could receive the
03:07
death penalty?
03:07
A. I think he questioned me closely at
03:07
least on that point.
03:07
Q. Turning your attention to, let's
03:07
take Tab 28.
03:07
While we do that, do you know if
03:07
Gene Marsh ever informed Penn State that Penn
03:07
State had the ability to compel invocation of
03:07
the infractions process?
03:07
A. I don't have any knowledge of
03:07
communications between him and the university.
03:07
Q. I understand.
03:07
03:07
identification.)
03:07
Q. This is now Berst 15 that we're
03:07
looking at. I draw your attention to the
03:07
bottom email, which is from Gene to you noting
03:08
that he just got off the phone with president
03:08
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Erickson, PSU lawyers, et cetera. I gave them

03:08
a full briefing, a lot of which he had heard in 03:08
his discussion with Mark Emmert last week?
03:08
Do you know what Gene Marsh meant by 03:08
a full briefing as of July 18?
03:08
03:08
A. Not precisely, no.
03:08
Q. By July 18, if you know, had your
03:08
conversation with Gene Marsh matured to the
03:08
point that the concept of a consent decree was
03:08
discussed?
03:08
A. When was the date of the final
03:09
action in this matter, do we know?
03:09
MR. KOWALSKI: July 23rd.
03:09
Q. 23rd.
03:09
A. I would think that this, by this
03:09
time, we were in those conversations.
03:09
Q. Do you know what Mark Emmert was
03:09
communicating to President Erickson in his
03:09
telephone calls?
03:09
A. I do not.
03:09
MR. HAVERSTICK: Let's look at
03:10
Tab 30. Why don't we mark Tab 31 first.
03:10
You can mark that one and 30.
03:10
03:10
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03:10
identification.)
03:10
Q. I'm going to hand you Berst 16.
03:10
It's another email chain between you and
03:11
Messrs. Remy and Marsh. Take a look.
03:11
A. Okay.
03:11
Q. I want to start with the second
03:11
page. And there is a note: Donald and David,
03:11
my conference call today with President
03:12
Erickson and other folks involved was very
03:12
positive and encouraging. I think we will very
03:12
quickly get to a point where PSU agrees with
03:12
the ideas that have been put forward.
03:12
As of July 18, if you know, are the
03:12
ideas that have been put forward to which Marsh
03:12
references, the ideas that conceptually are the 03:12
consent decree?
03:12
A. I believe it's finding the mechanism 03:12
to move this along. I'm still not sure I knew
03:12
the words consent decree, but some sort of
03:12
stipulated specific set of facts.
03:12
Q. Are specific punishments part of the 03:12
ideas put forward as of this date, if you know
03:12
or remember?
03:12
A. We talked earlier about reporting
03:12
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the thinking of Mark Emmert. I don't know, I

03:13
don't know when that is. I don't know if it's
03:13
this day, next day, or the following day. But
03:13
it's certainly involved in this set of
03:13
conversations.
03:13
Q. The final clause of that sentence
03:13
refers to Mark Emmert being able to make a
03:13
presentation to the NCAA board that can be
03:13
defended. What needed to be defended in a
03:13
presentation Mark Emmert would make to the NCAA 03:13
board, if you know?
03:13
A. Well, he would still have the burden 03:13
to report adequately what his thinking is on
03:13
what the appropriate actions might be in regard
03:13
to Penn State for agreement by the executive
03:13
committee.
03:13
Q. Is it the intention, as far as you
03:13
understood as of July 18, that Mark Emmert
03:13
would decide on a resolution he believed to be
03:13
appropriate and present it to the board for
03:14
board up or down approval?
03:14
A. Well, your question that you just
03:14
posed would be correct at some juncture. I've
03:14
had trouble the whole time picking which day
03:14
these things happened. But if it was by the
03:14
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23rd, then he was beginning to march down the

03:14
road of figuring out what he wanted to present
03:14
to the executive committee.
03:14
Q. But regardless of the date, the
03:14
process Marsh is referring to is one where
03:14
there's been a decision among Emmert, you, Remy 03:14
and Marsh as to what the resolution is, and
03:14
Emmert would take that to the NCAA board and
03:14
present it as this is the solution we would
03:14
like to use?
03:14
A. I don't know that for sure. I think
03:14
what would have happened is that, recognizing
03:14
that there was interest in heading this
03:14
direction, there would be work done on whatever 03:14
the consent decree would say. And that Mark
03:15
Emmert would be working on he believed the
03:15
appropriate set of penalties were to be. All
03:15
of that information would be reported to Penn
03:15
State for them finally to sign off on. But I
03:15
think you characterized it as a little more
03:15
give and take than that, and there really
03:15
wasn't much of that.
03:15
Q. When Mark Emmert ultimately
03:15
presented to the executive committee board a
03:15
few days later, did he present two options for
03:15
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the board's consideration or one, if you

03:15
recall?
03:15
A. I don't recall.
03:15
Q. Have you ever heard anyone reference 03:15
an Option A and an Option B as presented to the 03:15
executive committee board?
03:15
A. I don't remember that.
03:15
03:15
identification.)
03:15
Q. I'm going to show you Berst 17. It
03:15
is a meeting invite, telephonic meeting invite
03:16
between you, Donald, and Gene Marsh. I have a
03:16
pretty good guess generally what you three were 03:16
talking about on the 19th. Do you recall
03:16
specifically what was discussed on July 19 in
03:16
this call?
03:16
A. No.
03:16
Q. Let's have 32. We'll mark this
03:16
exhibit as Berst 18.
03:17
03:17
identification.)
03:17
Q. Take a look.
03:17
A. Okay.
03:18
Q. Start at the very last one. And I
03:18
want to ask a timing question. First in the
03:18
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chain temporally, last in the paper is an email

03:18
from Remy to Gene copying you, subject: One
03:18
more thing. And this appears to be the
03:18
correction for the omitted wins penalty; am I
03:18
right about that?
03:18
A. Tell me where you're looking.
03:18
Q. The very last page?
03:18
MR. KOWALSKI: Actually
03:18
second-to-last page.
03:18
MR. SEIBERLING: Is it
03:18
second-to-last? You're right. There's
03:18
little junk at the back.
03:18
MR. KOWALSKI: That's what he's
03:18
referring to.
03:18
A. Yes, that's correct.
03:18
Q. Is that how Gene Marsh came to learn
03:18
that vacation of the wins was going to be a
03:18
part of the penalty imposed on Penn State?
03:18
A. He received by email, a correction
03:18
to the telephone call that had just taken
03:19
place.
03:19
Q. Okay. Good. That's where I -- the
03:19
other piece I wanted out of this. Seeing this
03:19
email, do you recall that this email followed
03:19
the telephone call that I showed you in the
03:19
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prior exhibit?
03:19
A. Which makes sense. I think that's
03:19
right, yes.
03:19
Q. And would it have been in that
03:19
telephone call that you and Donald Remy would
03:19
have laid out for Gene what the terms of the
03:19
punishment would be under the concept that we
03:19
now call the consent decree?
03:19
A. Yes.
03:19
Q. Would that have been the -- other
03:19
than this one more thing email, was that to
03:19
your knowledge, the final expression of the
03:19
punishments that would be imposed as part of
03:19
the consent decree?
03:19
03:19
So in other words, did it change after
03:19
that?
03:20
MR. HAVERSTICK: Yes.
03:20
A. And I believe that's right.
03:20
Q. Let's skip up from the Donald Remy
03:20
email to Marsh apologizing, but adding the
03:20
vacation and wins from 1994. Were -- well, do
03:20
you recall a conversation with Gene Marsh in
03:20
which the rationale for vacating wins back to
03:20
1998 was explained or discussed with him?
03:20
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A. I don't recall that, no.

03:20
Q. I don't -- I don't see it in this
03:20
email. If I'm missing it, let me know as we go 03:20
through it. Donald Remy then receives an email 03:20
from Gene Marsh and you're copied on it. It
03:20
starts with: These are just my own views, just 03:20
mine and they are staying inside my head.
03:20
I think I know the answer to this,
03:20
but I want to make sure I'm right. Gene Marsh
03:20
references that he and his family paid a dear
03:21
price for carrying the NCAA banner. What's
03:21
that a reference to?
03:21
A. To an infractions case at the
03:21
University of Alabama, where he was at that
03:21
time, a faculty representative.
03:21
Q. Do you know what he means when he
03:21
says he paid a personal and professional price
03:21
and so did his family?
03:21
A. Well, I don't know precisely.
03:21
Q. Do you have an understanding?
03:21
MR. KOWALSKI: Yeah, I mean -03:21
Q. If you know.
03:21
MR. KOWALSKI: And if it's really,
03:21
really personal, we can talk that, too.
03:21
It's not necessary to do it on the record.
03:21
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A. He came under some pressure and

03:21
scrutiny from fans of University of Alabama for
03:21
being a person who was involved in infractions
03:21
matters that -- or at least in reporting and
03:21
helping to report infractions matters that
03:21
could impact the University of Alabama.
03:22
Q. And he was at that time, a faculty
03:22
member at the University of Alabama?
03:22
A. Yes.
03:22
Q. I don't need more than that.
03:22
He closes this email by noting that
03:22
this is just his own personal rant. And then:
03:22
At some point, an institution may be better off
03:22
under a traditional infractions process, but
03:22
that is just inside my head and going nowhere
03:22
else for now.
03:22
Two questions, Mr. Berst: First, do
03:22
you know if Mr. Marsh, in fact, kept these
03:22
thoughts to himself and -- I'm asking if you
03:22
know -- and did not share them with anyone at
03:22
Penn State?
03:22
03:22
A. I don't believe he, that he kept
03:22
them to himself in regard to processes
03:22
available to Penn State. I don't know whether
03:22
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he shared with Penn State that to the extent

03:23
the NCAA is going to attempt to evaluate the
03:23
culture of, you know, an intercollegiate
03:23
athletics program and its impact on the local
03:23
community, whether that is something the NCAA
03:23
should or should not do, then or in the future. 03:23
I don't know. I don't know what he did with
03:23
that information.
03:23
Q. Did I gather correctly that you
03:23
believe that he may have informed Penn State
03:23
that Penn State might be better off under the
03:23
traditional infractions process? Or did I hear 03:23
that wrong?
03:23
A. You heard that wrong.
03:23
Q. Okay.
03:23
A. I think I know Gene well enough to
03:23
know he would review all of the options and if
03:23
asked, he would provide more commentary on
03:23
their impacts and the positives and negatives.
03:24
But I think he'd do it in that spirit.
03:24
Q. But as we sit here now, you don't
03:24
know what he told Penn State specifically on
03:24
those points?
03:24
A. I'm basing my view just on the
03:24
continuing conversations we had. I don't think 03:24
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there were any secrets between him and the

03:24
university regarding processes that might be
03:24
available to them. I take it that's why he was 03:24
hired.
03:24
Q. Did you -- I think I know the answer 03:24
to that.
03:24
When do you recall Gene Marsh
03:24
informing you that Penn State would agree to
03:24
accept the consent decree with the punishment
03:24
terms imposed by NCAA?
03:24
A. It had to be possibly even the day
03:24
before this because it looks like on the 19th,
03:24
there was work being done on what a consent
03:25
decree will provide for. And he's offering
03:25
some information that he hopes might be
03:25
included somehow in that language. I don't
03:25
know whether -- whether the penalties, I guess
03:25
we figured out when those were reported, which
03:25
may have been on the same day. And now I've
03:25
lost the original question.
03:25
The sequence of events was that the
03:25
consent decree was being drafted, I believe,
03:25
and the penalties were being reported to him.
03:25
Q. Were you aware of whether President
03:25
Emmert had scheduled a press conference to
03:25
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announce sanctions against Penn State prior to

03:25
the time that the consent decree was agreed to
03:25
by Gene Marsh?
03:26
A. I don't know the timing of when
03:26
things were scheduled. I would guess -- it
03:26
doesn't sound impossible since everyone's going
03:26
to be trying to think ahead on whatever the
03:26
timing of these things are going to be in
03:26
regard to how you present the information
03:26
publicly.
03:26
Q. What was NCAA's plan if Gene Marsh
03:26
rejected the consent decree, if you know?
03:26
MR. KOWALSKI: And if you can answer
03:26
this without revealing privileged
03:26
03:26
A. I really just have to speculate from 03:26
what I know. That certainly could be a
03:26
response by the -- by Penn State. And if so,
03:26
everything would have been canceled and we
03:26
would have gone on to the next step.
03:26
Q. Which would have been what?
03:26
A. Consider how to handle the matter
03:26
further, whether it then rolls into a process
03:27
that is a part of the infractions process or
03:27
whether anyone could believe that there might
03:27
62 (Pages 242 to 245)

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David Berst
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be a different process that could be applied

03:27
through the executive committee under those
03:27
circumstances.
03:27
Q. In your opinion -- I'm sorry, not
03:27
your opinion.
03:27
Did you believe based on your
03:27
knowledge of NCAA processes, that had Gene
03:27
Marsh rejected the consent decree, that NCAA
03:27
could have through the executive committee,
03:27
acted on its own and imposed penalties, without 03:27
any further discussion with Penn State?
03:27
03:27
A. Well, I mean, you really are causing 03:27
me to speculate there, because we didn't get to 03:27
that point because that isn't what occurred.
03:28
But I would have argued against attempting to
03:28
process it in that manner and would have
03:28
suggested then going back through the
03:28
enforcement process.
03:28
If you're asking me whether I can
03:28
conjure up jurisdiction to do it, I think I
03:28
can, yes.
03:28
MR. KOWALSKI: To do ...
03:28
A. For the executive committee to
03:28
continue to consider it.
03:28
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Q. Was it ever a discussion point

03:28
internally that if the consent decree was
03:28
rejected, an option was for the executive
03:28
committee to impose punishment without further
03:28
discussion and without use of the infractions
03:28
process?
03:28
MR. KOWALSKI: Just be careful not
03:28
03:28
03:28
A. I'm not aware of that.
03:28
Q. To your knowledge, no one ever said
03:28
to you, we have this as an option if they -03:28
A. No one said that to me, no.
03:29
Q. And I think I asked this already and 03:29
I think you answered it, I want to make sure
03:29
I'm right now that we're going through it. Had
03:29
Mr. Marsh rejected the consent decree in its
03:29
final form and instead said Penn State opts for
03:29
the infractions process, you believe the
03:29
infractions process would have been utilized?
03:29
A. I do think that, yes.
03:29
Q. Was there ever any discussion
03:29
internally that NCAA would refuse to utilize
03:29
the requested infractions process and instead
03:29
move to unilateral executive committee action?
03:29
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MR. KOWALSKI: Same caution about

03:29
not revealing privileged communications
03:29
with legal counsel.
03:29
A. I'm not aware of that, no.
03:29
Q. Let's look at, because I am going
03:29
to -- shoot, I'm behind my time.
03:29
MR. KOWALSKI: Shocker.
03:30
MS. DOBLICK: Why don't we take 5,
03:30
Matt, before you move on to a different
03:30
topic.
03:30
MR. KOWALSKI: How close are you?
03:30
MR. HAVERSTICK: We'll take 5 and
03:30
I'll be able to tell you.
03:30
03:41
MR. HAVERSTICK: Back on the record. 03:41
03:41
identification.)
03:41
03:41
identification.)
03:41
Q. While you were out, I premarked
03:41
several exhibits. I'm going to show you
03:41
Exhibit 19 -- actually, why don't we show 19
03:41
and 20 at the same time. We'll compare them.
03:42
I just handed you two exhibits, Mr. Berst. And 03:42
they are -- purport to be draft executive
03:42
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committee notes of a meeting on July 21, 2012.

03:42
Okay?
03:43
A. Yes, I see them.
03:43
Q. Let's take a look at the first one
03:43
first. This is a draft executive committee
03:43
report. Is this the type of document that one
03:43
would see memorializing decisions made in the
03:43
executive committee? And I believe you
03:43
described a document like this earlier. I want 03:43
to make sure I'm -03:43
A. Yes, it is.
03:43
Q. Okay. Now, this appears to be
03:43
the -- this appears to be minutes of the
03:43
executive committee of July 21, 2012, at which
03:43
time action regarding Pennsylvania State
03:43
University was approved. And I wouldn't read
03:43
it all in. But it, in sum, authorizes
03:43
President Emmert to enter into a consent decree
03:43
with Pennsylvania State University. Is that
03:44
accurate?
03:44
A. Yes, it is.
03:44
Q. In the, at the end of the paragraph
03:44
at the first bullet, I direct your attention to 03:44
the last sentence. As a foundational matter,
03:44
were you a participant in this meeting, either
03:44
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directly or by telephone?
03:44
A. I was on the call I believe, yes.
03:44
Q. Okay. Do you recall President
03:44
Emmert noting that should the university,
03:44
meaning Penn State, not agree to this
03:44
resolution, meaning the consent decree, the
03:44
NCAA would be prepared to take action without
03:44
consent? Do you recall him saying words to
03:44
that effect?
03:44
A. Not precisely, consent meaning the
03:44
consent decree, I guess.
03:44
Q. Does reading these words change your 03:44
memory at all regarding whether there was
03:45
discussion given to the possibility of
03:45
unilateral action against Penn State if it
03:45
refused to agree to the consent decree?
03:45
A. I had -- I've got no recollection of
03:45
any notion of or thinking that there would be
03:45
unilateral action. I would have worked against 03:45
that if I somehow thought that was coming down
03:45
the pike. But, I don't know what these words
03:45
mean. To me, action would be submit it to
03:45
Julie Roe and ask her investigators to move
03:45
forward.
03:45
Q. Okay. Your answer and your memory
03:45
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is still the same: At least to your

03:45
recollection, no one talked to you about
03:45
possible alternatives to the consent decree if
03:45
Penn State refused?
03:45
A. Correct.
03:45
Q. Now, this vote records the vote as
03:45
ten against -- or 10 for, rather, zero against, 03:45
zero abstentions.
03:46
A. Yes.
03:46
Q. I count more 10 people in the
03:46
attendees. Am I counting correctly that minus
03:46
President Emmert, that there are 11 attendees
03:46
listed here?
03:46
A. Yeah. Well, Luanna Simon would not
03:46
have participated.
03:46
Q. She would have recused or abstained?
03:46
A. I see no an abstention either.
03:46
Q. Do you know why that is?
03:46
A. I would guess it's a typo.
03:46
MR. KOWALSKI: I might be wrong.
03:46
I'm counting 12 other than Emmert.
03:46
A. Yeah, so that's somebody else.
03:46
MR. HAVERSTICK: Are you looking at
03:46
the first one or the second one?
03:46
MR. KOWALSKI: 13088 in the
03:46
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attendees.
03:46
A. Well, Emmert wouldn't vote either.
03:46
MR. HAVERSTICK: I Count 12 without
03:47
Emmert.
03:47
MR. KOWALSKI: Right. That's what
03:47
I've got.
03:47
MR. HAVERSTICK: I had that question 03:47
too.
03:47
Q. It looks like a typo. It definitely
03:47
does not list Ms. Simon as abstaining?
03:47
A. It doesn't, but I'm sure she didn't
03:47
vote.
03:47
Q. And her an abstention would have
03:47
been appropriate because her school is in the
03:47
Big 10?
03:47
A. Yes.
03:47
Q. Take a look at the next one. Now,
03:47
the next document purports to be the same draft 03:47
meeting minutes. Do you know -- who is -- I'm
03:47
looking at the first cover email. Who is
03:47
Bernard Franklin?
03:47
A. He's the executive vice president
03:47
for inclusion. At the time, would have
03:47
probably been governance as well. Well, it
03:47
says MSAA, so that includes governance,
03:47
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inclusion, and academic and membership affairs.

03:48
Q. Do you know why some months after
03:48
the vote, Janice Whitehead would be forwarding
03:48
a document still marked draft to him?
03:48
03:48
A. I have no idea.
03:48
Q. I didn't think you would. Had to
03:48
ask.
03:48
Go back to the next page, the analog 03:48
to the one we just looked at.
03:48
A. All right.
03:48
Q. Now, this time, the document
03:48
reflects that the motion to approve the consent
03:48
decree was voted 12/zero. So now they have the
03:48
number right, I think.
03:48
A. Yeah, it looks like who -- it looks
03:48
like they transposed the groups. And, in fact, 03:48
they have the wrong attendees. Because there
03:48
are more than Division I members listed here.
03:48
It would only be the Division I members who
03:48
could vote on a board of directors. No, that
03:49
says executive committee again. I was thinking
03:49
it was the board that voted, the board.
03:49
Q. Again, Luanna Simon is not listed as 03:49
abstaining. It appears instead, she voted.
03:49
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But your recollection is, in fact, that she

03:49
abstained?
03:49
A. Yes.
03:49
Q. Do you know why these minutes would
03:49
have changed from the version that appears to
03:49
have been relatively contemporaneous with the
03:49
meeting to the one that was forwarded about 6
03:49
months later and went from 10/0 to 12/0?
03:49
03:49
Q. If you know?
03:49
A. I don't know. I'm not very
03:49
confident in the people who prepared the
03:49
minutes, so I would guess it's human error.
03:49
Q. Okay. Who does the preparation of
03:49
the minutes?
03:49
A. Delise O'Meally and -- who actually
03:49
no longer works at the NCAA -- and Janice
03:49
Whitehead would have been involved in preparing
03:50
the final copies or drafts.
03:50
Q. Okay. Let's move on to the next
03:50
documents. Now, I'm going to show you, I'm
03:50
just going to hand both of them to you now as
03:50
Berst 21 and 22.
03:50
03:50
identification.)
03:50
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03:50
identification.)
03:50
Q. Berst 21 is an email, an email from
03:50
Donald Remy to Gene Marsh, copying you, re:
03:50
ESPN?
03:50
A. Okay, yes.
03:50
Q. I'm looking at Gene Marsh's second
03:50
sentence. And he references comments,
03:51
presumably in an ESPN article. Is that ringing 03:51
a bell?
03:51
A. Yes.
03:51
Q. And this would be comments in an
03:51
ESPN article related to the implementation,
03:51
authorization, whatever word we want to use,
03:51
for the consent decree?
03:51
A. Yes, for the action taken by the
03:51
executive committee, yes.
03:51
Q. Yeah, because this is now 7/25,
03:51
which would be 3 days after, I think that the
03:51
consent decree was agreed upon.
03:51
A. Yes.
03:51
MR. KOWALSKI: Two, actually.
03:51
MR. HAVERSTICK: Two, yeah, maybe
03:51
you're right.
03:51
Q. Gene Marsh queries whether the
03:51
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comments clearly state the death penalty was

03:51
the majority view and then that was pulled back
03:51
after looking at other, the alternative
03:51
penalties. And that's his typo, not mine.
03:51
Is he correct that the death penalty
03:51
was the majority view?
03:51
A. In the first call of the executive
03:51
committee, yes.
03:51
Q. Okay. Is he correct that the death
03:52
penalty was pulled back after presumably the
03:52
executive committee or others looked at
03:52
alternative penalties?
03:52
A. Well, it's probably not careful
03:52
language. But the way that moved ahead, while
03:52
there was a consensus view clearly in that
03:52
first executive committee call, that the death
03:52
penalty was the kind of penalty that ought to
03:52
be considered and pursued by Mark, Mark
03:52
received authorization to evaluate what he
03:52
thought the most appropriate penalty was. So
03:52
it's characterized here as pulling back, but I
03:52
tell you the actual penalty that was designed
03:52
is the only one there was that Mark Emmert put
03:52
together.
03:52
Q. And Mark Emmert did not design a
03:52
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program that included the death penalty as a

03:52
sanction?
03:52
A. He did not, no.
03:52
Q. Do you know why he did not decide
03:53
the death penalty was an appropriate sanction
03:53
for Penn State?
03:53
03:53
not to reveal privileged communications
03:53
with legal counsel in answering the
03:53
question.
03:53
A. And I don't know the answer to that. 03:53
He would have certainly taken into
03:53
consideration comments by all of the people who
03:53
we've been talking about involved in meetings,
03:53
but the decision was his.
03:53
Q. Remy replies that he made clear,
03:53
which I presume are comments by either
03:53
President Emmert or someone else on behalf of
03:53
the NCAA in this article, that the death
03:53
penalty was in play, and that's a true
03:53
statement?
03:53
A. Yes.
03:53
Q. And that Penn State's cooperation
03:53
helped avoid it. Is that also in your
03:54
recollection -- in your recollection of the
03:54
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discourse between you and Gene Marsh; is that

03:54
also accurate?
03:54
A. It's not related to the discourse
03:54
between me and Gene. I would hope this is,
03:54
that that was a consideration, but it would
03:54
have been Mark's.
03:54
Q. All right. We'll go to the next
03:54
one. Now, I'll tell you up front, this is not
03:54
an email that you are on, but if we look at the 03:54
top -- take your time to look at the whole
03:54
thing, but it's really only the top page and
03:54
two emails that relate to you.
03:54
And this conversation is an email
03:54
exchange between Shep Cooper and Joel
03:54
McGormley.
03:55
A. Okay.
03:55
Q. It purports to relay that you and
03:55
Donald Remy and Gene Marsh had a heated
03:55
conversation regarding the application of the
03:55
so-called death penalty last week, which would
03:55
have been presumably around July 20th,
03:55
presumably prior to the time that the consent
03:55
decree was authorized by the executive
03:55
committee.
03:55
Do you recall a pretty heated
03:55
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conversation between the three of you over the

03:55
application of the death penalty?
03:55
A. No.
03:55
Q. The next one up again purports to be 03:55
a representation that Gene Marsh got in your
03:56
shorts. I can only assume that means you-all
03:56
had a fight.
03:56
He said that Berst, who had a hand
03:56
in writing much of the legislation in 19 and
03:56
32 -- and are those references to provisions of 03:56
the NCAA bylaws?
03:56
A. Yes.
03:56
Q. Over the course of many years during 03:56
the '70s, '80s, and '90s, insisted that the
03:56
prohibition on competition could be applied in
03:56
the PSU case, even thought legislatively, that
03:56
doesn't appear true.
03:56
First, does this cause you to
03:56
remember any kind of argument with Gene Marsh
03:56
in which you would have indicated that you
03:56
wrote the legislation and, therefore, it could
03:56
be applied in the Penn State case?
03:56
03:56
A. I probably said that to everyone.
03:56
And I would have to Gene. But not a heated
03:56
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way.
03:57
Q. All right.
03:57
A. Just as a matter of fact. Gene's
03:57
discussions in all these instances were simply
03:57
straightforward, and he asked very direct and
03:57
pointed questions. I responded in the like
03:57
manner. I have great respect for Gene. I
03:57
think likewise, he does with me. And I did
03:57
hold to the view and still do, that the
03:57
prohibition against competition can be applied
03:57
in any case, even under the new changes that
03:57
others have made.
03:57
Q. Have you ever had a conversation
03:57
with Joel McGormley about whether the death
03:57
penalty could be applied to a non-repeat
03:57
offender?
03:57
A. I have not, no.
03:57
Q. Are you aware of whether Gene Marsh
03:57
was criticized for his advocacy on behalf of
03:57
Penn State in coming up with the consent
03:58
decree? I know you didn't negotiate it.
03:58
03:58
form.
03:58
MS. DOBLICK: Objection to the form. 03:58
A. Whether he was criticized? Not at
03:58
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that time. By a few trustees of Penn State and 03:58

probably your client, but I can't imagine
03:58
anywhere else.
03:58
Q. Have you ever had any conversations
03:58
with him, in person, telephonic, in which you
03:58
discussed respectively, you know, what the
03:58
different reactions were to the consent decree
03:58
inside each of your clients?
03:58
A. No.
03:58
Q. Have you had any conversations with
03:58
him at all since this matter about Penn State
03:58
that weren't recorded electronically or
03:58
otherwise written?
03:59
03:59
A. I'm sure I've had -- I've had
03:59
occasion to see or talk to Gene briefly couple
03:59
or three times a year or somewhere, where he
03:59
has appeared at a panel or been on some -- or
03:59
even appeared at Penn State, I guess, for
03:59
consideration or review of actions taken at the 03:59
institution. I'm aware of those kinds of
03:59
things. And I believe he's received criticism
03:59
in each of those occasions in some form or
03:59
another.
03:59
Q. Have you ever discussed that with
03:59
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him at any of the times you've run into him?

03:59
A. I've not done any more than what I
03:59
just said.
03:59
Q. All right.
03:59
A. I don't talk about those things, no. 03:59
There was a bunch of other stuff in this
04:00
particular document that I don't have any -04:00
you're not trying to use me to get to whatever
04:00
that is?
04:00
Q. Nope. The only reason I showed it
04:00
to you at all is those guys happened to be
04:00
talking about you.
04:00
A. Okay.
04:00
04:00
identification.)
04:00
Q. Next, I'm going to show you -- I
04:00
took this a little out of order because I
04:00
missed this one before. This is Berst 23.
04:00
Now, in the interest of alacrity, I will tell
04:00
you that this is an email dated 7/22/12 that
04:00
contains a draft of the consent decree and I
04:00
think -- yes, I think the draft document is
04:00
attached to it, if you want to look at it. But 04:01
I don't have questions about the draft itself.
04:01
A. Okay.
04:01
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Q. I direct your attention to two edits

04:01
that are inserted in the top cover email. And
04:01
the first -- well, they're both right there
04:01
underneath edit to the sentence. The first:
04:01
To wit, after serious consideration and
04:01
significant discussion. And that appears to be 04:01
an insert into language that wasn't there
04:01
before about the consent decree. I'll tell you 04:01
that that language, after serious consideration 04:01
and significant discussion, is in fact, in the
04:01
draft attached to this document.
04:01
A. All right.
04:01
Q. You can take a look at it if you
04:01
want.
04:01
A. No, I accept that.
04:01
MR. KOWALSKI: One point of
04:01
clarification, Matt. I will confirm this
04:01
after the deposition, but I think this
04:01
document, the attachment contains redlining 04:02
and comments that were sent back to the
04:02
NCAA. And it's not showing up in here, and 04:02
I don't know if that's a production issue
04:02
or if it's just the version. But I will
04:02
confirm on our side that you guys have the 04:02
version that has the redlining on it.
04:02
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MR. HAVERSTICK: All right.

04:02
MR. KOWALSKI: It may be -04:02
MS. MADDEN: I don't know that we
04:02
have seen that.
04:02
MR. KOWALSKI: I'll confirm that, of 04:02
course.
04:02
MS. MADDEN: Thanks.
04:02
Q. I'm looking at the insert here after
04:02
to wit. Where did the significant discussion
04:02
occur regarding the imposition of the death
04:02
penalty?
04:02
A. Well, I think that that would have
04:02
occurred in the privileged conversations that
04:02
we're talking about.
04:02
Q. All right. Would that also cover
04:02
discussions at the executive committee level?
04:02
A. Well, to some degree certainly
04:03
because there would have been a consideration
04:03
of the recommendations by Mark Emmert that
04:03
would have been discussed. So certainly that
04:03
would have been serious consideration.
04:03
Q. Without getting into the substance
04:03
of the significant discussion, was there, in
04:03
fact, significant discussion after Mark Emmert
04:03
presented the proposed consent decree to the
04:03
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executive committee, about the dropping of the

04:03
death penalty as a possible penalty? I don't
04:03
want to know what anybody's view on it was. I
04:03
just want to know if, in fact, there was
04:03
significant discussion about dropping out the
04:03
death penalty as a punishment?
04:03
MR. KOWALSKI: This is in the
04:03
context of meetings with legal counsel?
04:03
A. Yes, actually.
04:03
Q. Well, was legal -- it's in the
04:03
executive committee discussion where they're
04:04
discussing the proposal that I understood that
04:04
Mark Emmert offered for what they wanted to do.
04:04
MR. KOWALSKI: You can talk about
04:04
the executive committee meeting. The
04:04
internal staff meetings with legal counsel 04:04
are privileged.
04:04
MR. HAVERSTICK: I don't want to
04:04
know about that.
04:04
MR. KOWALSKI: Talk about the
04:04
executive committee meeting.
04:04
A. There would certainly be some
04:04
discussion and probably some -- I don't
04:04
remember precisely -- questioning about
04:04
rationale. But I think by that time, the
04:04
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executive committee was -- had already deferred 04:04

to Mark Emmert to come to his best decision
04:04
about what to do going forward. The privilege
04:04
discussions took place. And by the time they
04:04
get back to the executive committee, I think
04:04
they were, for the most part, willing to accept 04:04
Mark's views.
04:04
Q. To the extent there were significant 04:05
discussions, is it accurate that those
04:05
occurred -- I don't want to know what they
04:05
were -- but is it accurate that the significant
04:05
discussions, to the extent they occurred,
04:05
occurred in the privileged setting meetings,
04:05
not in front of the executive committee?
04:05
MR. KOWALSKI: Hold on one second
04:05
here. Can you read it again? I'm sorry.
04:05
I just want to -- no, no, not that. Can
04:05
you read the question.
04:05
(Record read as requested.)
04:05
Q. If there were -- if there were
04:05
significant discussions, did they occur not in
04:06
front of the executive committee but in the
04:06
other setting that you determined would be
04:06
privileged? And I don't want to know what they 04:06
were. I just want to know if that's where it
04:06
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would have happened?

04:06
A. I'm lost on the nuances.
04:06
MR. KOWALSKI: Hold on one second,
04:06
David.
04:06
The question is, is that the only
04:06
place significant discussions took place,
04:06
is that what you're asking?
04:06
MR. HAVERSTICK: Yeah, I think he
04:06
answered that -04:06
MR. KOWALSKI: If so, go ahead.
04:06
A. That's it probably where I'm going.
04:06
The more significant discussion and debate
04:06
probably took place in the privileged
04:06
conversations.
04:06
Q. Okay.
04:06
A. But the executive committee
04:06
certainly was interested in the thinking of the
04:06
president and why -04:06
Q. Got it.
04:06
A. -- you don't have the death penalty
04:06
involved.
04:06
Q. I got it.
04:06
The second sentence that has been
04:06
deleted: Yet by concealing the conduct in
04:06
question, the university may have obtained a
04:07
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competitive advantage over an extended period

04:07
of time. Do you know why that sentence was
04:07
dropped from the consent decree?
04:07
A. No.
04:07
Q. Do you agree with the premise of
04:07
that statement, that the university may have
04:07
obtained a competitive advantage by concealing
04:07
the conduct in question, meaning the Sandusky
04:07
affair?
04:07
A. I think I could probably argue it
04:07
either way, and I didn't try. That was a
04:07
matter that I didn't try to make a value
04:07
judgment on and left to others.
04:07
Q. Do you recall whether -- your answer 04:07
was you don't know why that was dropped,
04:07
correct?
04:07
A. Right.
04:07
Q. So you don't recall any
04:07
conversations with others in which someone else 04:07
articulated a rationale for dropping that?
04:07
A. No.
04:08
Q. You did not feel it particularly
04:08
necessary or even particularly accurate enough
04:08
that it needed to be included in the document?
04:08
A. I was not making any of those
04:08
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judgments. My overall thinking was if we have

04:08
a consent decree, that that was sufficient for
04:08
the executive committee to evaluate action.
04:08
04:08
identification.)
04:08
Q. Okay. All right. This is Berst 24. 04:08
A. I know what this is, yes, I
04:08
remember.
04:08
Q. I bet you do. I bet you do. Do you 04:08
need a minute to go through it?
04:08
A. No, I can figure it out as you go.
04:08
Q. Do you recall the communication from
04:09
Dr. Ray that occasioned this email or caused
04:09
this email, however you want to describe it,
04:09
from Donald Remy to Gene Marsh?
04:09
A. I don't recall specifically what it
04:09
was that set Gene off, although I think it was
04:09
maybe continuing either statements or public
04:09
statements that he was involved in making. And
04:09
from Gene's perspective, Ed Ray was hedging on
04:09
whether issues around the death penalty were
04:09
being discussed by presidents.
04:09
And in what I at least understood to 04:09
be Ed Ray's behalf at the time, while there
04:09
certainly were serious discussions about the
04:09
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so-called death penalty, eventually when the

04:09
executive committee provided authority for the
04:10
president to evaluate a potential solution that 04:10
may or may not include the death penalty, that
04:10
I think Ed Ray was emphasizing that period of
04:10
time and Gene became upset.
04:10
And I think eventually it resulted
04:10
in this answer back to Gene from Donald Remy.
04:10
Q. Did you have any conversations with
04:10
Gene not reflected in this email about his
04:10
unhappiness, displeasure with, however we want
04:10
to call it, with what Dr. Ray was saying?
04:10
A. I believe that yes, I did. I think
04:10
he contacted me either by email or by phone
04:10
probably saying give me a break. You know,
04:10
what's that guy talking about? And puts us in
04:10
a difficult position. And at the same time,
04:10
the university was making public comments that
04:11
may or not be -- may or may not be completely
04:11
factual either. So I just kind of left it in
04:11
the air.
04:11
Q. What do you recall emanating from
04:11
university folks about the death penalty
04:11
imposition?
04:11
A. I don't have a recollection of what
04:11
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it was. I just remember that that was what was 04:11

on the mind of, I believe Donald and/or our
04:11
communications people versus, you know,
04:11
whatever the Ed Ray comments were.
04:11
Q. Was Gene Marsh of a view, at least
04:11
expressed to you privately, that the death
04:11
penalty was -- was a more palpable threat to
04:11
Penn State than others may have represented
04:12
later on?
04:12
04:12
A. It seemed to me that he wanted to
04:12
emphasize that point, which I think I
04:12
understood. And he didn't think it was
04:12
adequately represented by Ed Ray's comments.
04:12
Q. Are you -- do you have any knowledge 04:12
about what was said on any kind of one-on-one
04:12
conversation between President Erickson and
04:12
President Emmert?
04:12
A. No.
04:12
Q. That makes that easy.
04:12
In Remy's email to Gene Marsh, he
04:12
writes, and I'm in the first page, about midway 04:12
down: Fifth, in no, capital letters,
04:12
communication by David Berst or me, did we ever 04:12
threaten the so-called death penalty would be
04:13
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imposed if Penn State did not agree to the

04:13
consent decree. Is that a true statement from
04:13
your perspective?
04:13
A. That's a true statement.
04:13
Q. And I believe you gave testimony
04:13
about your discussions with Gene Marsh on when
04:13
the death penalty might apply.
04:13
In fact, the voicemail from David
04:13
Berst specifically supports that fact. With
04:13
everybody's indulgence, we were provided a
04:13
voicemail last night that we think is the
04:13
voicemail. Could we play it for you, and if it
04:13
rings a bell as being the voicemail, can we
04:13
identify it as such?
04:13
A. Sure.
04:13
MR. KOWALSKI: Make sure you don't
04:13
hit the personal button. Make sure it's
04:13
the right one.
04:13
MS. MADDEN: It was produced by Penn
04:13
State. Do you want me to read that.
04:13
MR. HAVERSTICK: Go ahead and read
04:13
that into the record.
04:13
MS. MADDEN: It's PSU COR 02132.
04:13
A. Is there a date?
04:14
MS. MADDEN: I don't have the date.
04:14
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It was not produced with the voicemail.

04:14
Q. That's why we'd like to play it. If
04:14
it rings a bell, it rings a bell. If it
04:14
doesn't, it doesn't.
04:14
(Voicemail played): Gene, this is
04:14
David Berst. I think I'll try this.
04:14
We're reaching out to Ed Ray to try to get 04:14
him to clarify what he means. And the
04:14
transcript from yesterday's press
04:14
conference is right on the button.
04:14
So your understandings of what our
04:14
presidents were talking about in regard to 04:14
death penalty are absolutely correct. And 04:14
I know I reiterated that in regard to the
04:14
long hard slog, I think I referred to it,
04:14
if we were to go back to an enforcement
04:14
process in this kind of an instance.
04:14
That's what I was trying to reflect,
04:14
what I considered to be the mood of the
04:15
presidents that I was talking to at that
04:15
time about applicability of the death
04:15
penalty. So I think you're right on the
04:15
button. I don't think all of those
04:15
conversations were more factual.
04:15
Certainly not threatening, I don't think,
04:15
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in any manner.
04:15
So everybody's got to be a little
04:15
careful about how they are talking about
04:15
that. That certainly was an issue that
04:15
was on the table that eventually, Mark, I
04:15
think persuaded our people should not be
04:15
considered in the final analysis. So the
04:15
consent decree, as you know, didn't
04:15
include that. So I hope that helps.
04:15
Mark's going to be on ESPN and a
04:15
couple of other places tonight and will
04:15
reiterate his positions. And with any
04:15
luck, we'll be able to reach Ed. So I
04:15
hope that's helpful. And Donald will
04:15
respond related to the eventual time
04:15
period. That's probably fine. Thanks.
04:16
A. It sounds like me. I am not -- I'm
04:16
sure that email -- or I mean that voicemail
04:16
speaks to the disappointment Gene had over Ed
04:16
Ray's comments. I don't think it goes to
04:16
this -- what you just read, the communication
04:16
by David Berst, meaning did we ever threaten
04:16
the so-called death penalty would be imposed if 04:16
Penn State did not agree to the consent decree. 04:16
I'm not sure that has anything to do with that. 04:16
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Q. After hearing it, are you not

04:16
certain that that voicemail is the voicemail
04:16
that Gene references in his text?
04:16
MR. KOWALSKI: Donald references.
04:16
A. You mean Donald.
04:16
Q. Donald, sorry.
04:16
A. I am not sure that it does, because
04:16
that seems to just relate to the -- what Ed Ray
04:16
was saying in his communications and the hope
04:17
that Gene had that Mark Emmert would fix it.
04:17
Q. Flip over to the next page.
04:17
A. Okay.
04:17
Q. The top paragraph: At all times
04:17
prior to the execution of the consent decree,
04:17
PSU was free to repudiate the Freeh Report,
04:17
withdraw its consent, and/or reject the
04:17
direction of the NCAA executive committee and
04:17
either litigation against an imposition of
04:17
penalties by the executive committee or roll
04:17
the dice with the enforcement and infractions
04:17
process.
04:17
Does reading this section of Donald
04:17
Remy's email refresh your memory as to whether
04:18
there was active consideration by NCAA to
04:18
impose penalties vis--vis the executive
04:18
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committee if the consent decree was rejected?

04:18
A. I don't think it has anything to do
04:18
with that.
04:18
Q. What does it have to do with?
04:18
A. I think this says that the
04:18
institution was free to repudiate the Freeh
04:18
investigation and roll the dice with the
04:18
infractions process. I don't know that it -- I
04:18
don't think he's to the point where there might
04:18
be a consent decree or anything else occurring.
04:18
So I don't think you can go that far.
04:19
Q. You don't read: And either litigate
04:19
against an imposition of penalties by the
04:19
executive committee?
04:19
A. Yeah, but I mean, we can be sued any
04:19
time. And I hadn't thought about a suit. But
04:19
certainly any institution or individual and
04:19
certainly some have sued the association to
04:19
enjoin us from doing anything for whatever
04:19
violation of constitution or other laws is
04:19
considered to be appropriate.
04:19
Q. Either way, your memory is the same:
04:19
You don't remember active consideration, at
04:19
least expressed to you, to imposing discipline
04:19
by the executive committee in the absence of an
04:19
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agreement?
04:19
A. I not only don't remember it, I
04:19
don't believe it happened.
04:19
Q. You don't believe it was actively
04:19
considered, you mean?
04:19
A. That's correct. You asked me
04:19
earlier whether I thought it was conceivable,
04:19
basically, that it could occur. And I think
04:19
that's possible. But I don't recall anyone
04:20
ever conjuring up a sentence that might lead in 04:20
that direction.
04:20
Q. Okay. Skip the next little
04:20
paragraph. And then the paragraph after that,
04:20
one, two, three, four, five lines down:
04:20
Contrary to the suggestions by Penn State and
04:20
its counsel, we -- which means NCAA -- were not 04:20
provided advance substantive information
04:20
regarding the findings of the Freeh Group.
04:20
Now, I think to your -- as far as
04:20
you know, that's a true statement, correct? I
04:20
mean, the latter clause, that you were not,
04:20
NCAA, provided advance substantive information
04:20
regarding the findings of the Freeh Group?
04:20
A. For me that's correct, yes.
04:20
Q. And you don't know whether anybody
04:20
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else did or didn't?

04:20
A. I don't know how -- I'm not aware of 04:20
that, no.
04:20
Q. Okay.
04:20
A. Did you? No, I'm not aware that you 04:20
got it either.
04:21
Q. And I understand your answer.
04:21
Do you know who Donald Remy means
04:21
when he refers to Penn State and its counsel,
04:21
suggesting that NCAA had advance substantive
04:21
insight into the Freeh Report?
04:21
A. Where are you reading now?
04:21
Q. The clause before the one we just
04:21
discussed: Contrary to suggestions by Penn
04:21
State and its counsel. I'm asking if you know
04:21
who Donald meant by that email or by that, by
04:21
that phrase?
04:21
A. No.
04:21
Q. All right. Finally, and then we can
04:21
move on from this, Donald Remy references
04:21
acting general counsel Mark Falkner at Penn
04:21
State University. Did you have any interaction 04:22
with acting general counsel Mark Falkner during 04:22
the interaction with Gene Marsh that led to the 04:22
consent decree?
04:22
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A. I don't know if I did. If I did, it 04:22

would have been someone on the phone with Gene, 04:22
but I don't recall that occurring.
04:22
Q. All right. Let's give me 5 minutes. 04:22
We want to look at something real quick, and I
04:22
think we can run through the last couple things 04:22
and we can be done.
04:22
04:37
04:37
identification.)
04:37
BY MR. HAVERSTICK:
04:37
Q. Okay. Last document I believe I'll
04:37
show you is Berst 25. This is an email from
04:37
you to Mark Emmert way back when or again,
04:37
early on in the early stages of the Sandusky
04:37
stuff, you write to Mark Emmert: Do you plan
04:37
to advise him before the call?
04:38
And am I correct in assuming the
04:38
"him" to which you refer is Delaney at Big 10?
04:38
A. Jim Delaney, yes.
04:38
Q. What call, if you remember, are you
04:38
mentioning in the first sentence?
04:38
A. Well, I believe that that would have 04:38
been subsequent to talking about whether he was 04:38
going to submit a letter to Penn State. And in 04:38
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those kinds of instances when something's going 04:38

to occur at an institution, I would typically
04:38
think of the commissioner as being someone who
04:38
needs to be informed. So I was suggesting to
04:38
Mark that he talk to Delaney, so he was aware
04:38
of the fact we're going to do something in the
04:39
Penn State case.
04:39
Q. Okay. I indicated that you wanted
04:39
to visit with him re: PSU follow-up and plan to 04:39
call.
04:39
The discussion that you envisioned
04:39
Mark Emmert having with Delany is the one you
04:39
just discussed about the letter?
04:39
A. Yes.
04:39
Q. To your recollection?
04:39
A. Yeah.
04:39
Q. All right. We're done with that
04:39
one.
04:39
Were president -- are President
04:39
Emmert and Graham Spanier personal friends, if
04:39
you know?
04:39
A. I don't know.
04:39
Q. Do you see any reason based on a
04:39
prior relationship between, even in the context 04:39
of their NCAA relationship, between Spanier and 04:39
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Emmert that Mr. Emmert should have recused

04:39
himself from any involvement with deciding the
04:40
discipline meted out to Penn State?
04:40
A. That Emmert should?
04:40
Q. Yes.
04:40
A. Are you suggesting somehow he had it 04:40
in for Graham Spanier?
04:40
Q. No. I'm asking whether based on
04:40
your view and experience in enforcement,
04:40
whether you, sitting here today, would give any 04:40
consideration to whether Mr. Emmert should have 04:40
recused himself based on their prior
04:40
friendship, relationship, professional
04:40
relationship?
04:40
04:40
A. I don't know what that relationship
04:40
would be. He would have been -- Mark Emmert
04:40
was a former president at the University of
04:40
Washington. Graham, I'm a personal friend of
04:40
Graham's, so I don't know. I just don't know
04:40
of anything that would lead to recusal.
04:40
Q. You never gave any thought to you
04:40
recusing from the matter based on your personal 04:41
friendship with Graham Spanier?
04:41
A. Well, I didn't have any input in
04:41
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what was going to end up actually occurring. I

04:41
was more involved in process. No, I gave that
04:41
no thought. Graham Spanier, I have great
04:41
respect for. The athletic director, I do as
04:41
well. Joe Paterno, I have the utmost respect
04:41
for. Know all of them, knew all of them very
04:41
well.
04:41
Q. Can you, if you recall other matters
04:41
where you have been deposed, just rattling them
04:41
off for us, and when?
04:41
A. I've been for the last four or five,
04:41
I've been saying I've been deposed 30 times,
04:41
and I don't intend to say I've been deposed
04:41
more than 30.
04:41
Q. All right.
04:41
A. But recently, a rock case related to
04:41
a one-year grant in aid, the O'Bannon case, the
04:41
NIT case. What else has been recent? If you
04:42
can name a couple, I've probably been deposed
04:42
in them.
04:42
Q. Just off the top of your head, none
04:42
others come to mind?
04:42
A. I try to repress the memory. I'd
04:42
like to forget yours tomorrow.
04:42
MR. KOWALSKI: How about tonight.
04:42
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THE WITNESS: I can accomplish that,

04:42
based on the conversation we had earlier.
04:42
Q. Are you aware during the Freeh
04:42
Group's investigation of Penn State, whether it
04:42
was at the same time, soliciting enforcement
04:42
work from NCAA? Have you heard that?
04:42
A. I don't know that, no.
04:42
Q. Are you aware of the Freeh Group
04:42
after the investigation concluded, soliciting
04:42
enforcement work from NCAA?
04:42
A. No.
04:42
Q. I asked you earlier about the
04:42
submission of questions by the -- by NCAA to
04:43
the Freeh Group during the investigation. Do
04:43
you remember me asking that?
04:43
A. I remember the question, yes.
04:43
Q. And you weren't aware of it?
04:43
A. No.
04:43
Q. Assume that that happened, that is
04:43
the questions were submitted by NCAA to the
04:43
Freeh Group as part of its investigation.
04:43
What's your reaction to that, considering that
04:43
the Freeh Group provided the basis upon which
04:43
discipline was ultimately decided by NCAA?
04:43
04:43
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You're asking him based on that one fact,

04:43
no other context whatsoever.
04:43
Q. Yeah.
04:43
A. And if that's all I've got to work
04:43
with in my former life, I would think that
04:43
would be an appropriate investigative tool to
04:43
try and figure out appropriate questions to ask
04:43
to gather information.
04:43
Q. Would that be your answer if it was
04:43
known ahead of time that NCAA intended to base
04:43
any punishment it subjected Penn State to on
04:44
the Freeh Report?
04:44
A. I don't think that could have been
04:44
known at that time. So, you know, I'm not
04:44
willing to go too far with you on this.
04:44
Q. Okay.
04:44
A. Anybody, if somebody comes to me
04:44
tomorrow and says how do you investigate a
04:44
case, I would probably be willing to help or
04:44
answer questions to that effect.
04:44
Q. Okay.
04:44
A. So I'm answering in that context.
04:44
If there was something that was more illicit
04:44
somehow implied, I'm not willing to go there.
04:44
Q. I don't recall the exhibit number,
04:44
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but it was tab 4.

04:44
MS. MADDEN: Exhibit 12.
04:44
Q. Exhibit 12. Why don't I just -04:44
MS. MADDEN: The exhibits are in
04:44
front of the witness.
04:45
MR. KOWALSKI: Exhibit 12.
04:45
Q. 12. I want to confirm something.
04:45
This email, the original email from
04:45
you to the CCA members -04:45
A. Yes.
04:45
Q. -- was the memo distributed to the
04:45
CCA members identical in text to this email?
04:45
In other words, is there one document that's
04:45
more than the other, or is this the document?
04:45
A. This is the document.
04:45
Q. Okay. Do you recall whether this
04:45
document was ever reproduced or re-sent to
04:45
anyone or edited in any way?
04:45
A. I believe it was probably used by a
04:45
couple commissioners to inform some of their
04:45
own schools. But otherwise no, I'm not. I'm
04:45
not aware of that.
04:45
Q. How many infractions cases did you
04:45
oversee when Gene Marsh was the chair of COI?
04:45
A. None. I think I mentioned to you
04:46
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before that the only case where we would have

04:46
crossed paths would have been during the time
04:46
he was a faculty representative at the
04:46
University of Alabama.
04:46
Q. No, I didn't recall that. Okay.
04:46
With respect to the bylaws, where is
04:46
the authority for the imposition of a monetary
04:46
sanction of the quantum that was imposed on
04:46
Penn State?
04:46
A. Financial penalties are provided for
04:46
in the list of major infractions kinds of
04:46
penalties. That would have no bearing on this
04:46
case, because as I've said to you several
04:46
times, this had nothing to do with the
04:46
enforcement process.
04:46
So a monetary penalty that's a part
04:46
of the consent decree and penalty agreed to
04:47
between the NCAA and Penn State University,
04:47
needs no authority somewhere in the NCAA manual 04:47
to agree to, in my opinion.
04:47
Q. It is dependent solely on the
04:47
executive committee's authority to impose
04:47
penalties outside the penalty process?
04:47
04:47
form.
04:47
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A. I don't think even that. I think

04:47
Penn State could agree to a $60 million penalty
04:47
with the NCAA staff if they wanted to. I don't
04:47
know what it would be based on or the outcomes
04:47
or whether even any findings would be
04:47
necessary. But if they volunteer to provide
04:47
$60 million to victims, they could have done
04:47
that on their own motion, even without
04:47
consideration by the NCAA. So, you know, I
04:47
don't see any lines that have to require
04:48
authorization at all.
04:48
Q. Did there ever come a time, and
04:48
especially in late 2011, when you expressed
04:48
some concern about the potential processes
04:48
being in place? Did there ever come a time
04:48
where you were counseled or where it was
04:48
suggested to you that you should adopt the
04:48
position that was the more the popular position
04:48
or the one being pressed upon by leadership?
04:48
04:48
A. What's the more popular position?
04:48
Q. Well, the one that commanded greater
04:48
voice and apparently won the day. Let me ask
04:48
it another way. There's no secrets. We all
04:49
want to get this done.
04:49
Page 288
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A. I don't know what that is.

04:49
Q. Did there ever come a time where you 04:49
felt -- where it was communicated to you
04:49
directly or indirectly, that you should conform 04:49
your views about what the right process is to
04:49
those of Mr. Emmert or those of anybody else
04:49
who was articulating that they didn't have your 04:49
jurisdictional concern?
04:49
A. I would double dog dare anybody to
04:49
try. So my views are my views in every
04:49
instance, including talking to Mark Emmert.
04:49
Q. Understanding that you are probably
04:49
within the NCAA, a fairly unique individual
04:49
because of your tenure there and knowledge,
04:49
have you ever observed anyone there ever -- or
04:49
perceived anyone there ever conforming views to 04:49
those from dissent into majority? In other
04:49
words, is there ever any pressure that you
04:50
observed to achieve consensus, that would cause 04:50
someone to stop dissenting and get with the
04:50
majority view?
04:50
MR. KOWALSKI: I will object to
04:50
form, and also note that I think he
04:50
testified that he came to the NCAA in 1972. 04:50
It seems like an impossibly broad question 04:50
Page 289
1
for him to answer, but I don't know.

04:50
A. It's kind of an amazing answer.
04:50
Q. I do that.
04:50
A. Why wouldn't you quash the bait. If
04:50
the viewpoint is that the only way -- there's
04:50
only one view that has to be conformed to, then
04:50
a guy like me could never make it at all
04:50
because I often don't conform. And for others,
04:50
they have to make their own decisions, I guess,
04:50
in that regard. But that isn't the environment
04:50
that I have ever known at the NCAA and, in
04:50
fact, I wouldn't stand for it.
04:51
MR. HAVERSTICK: I appreciate your
04:51
insight. And I don't have any more
04:51
questions. Donna may.
04:51
MS. DOBLICK: I have no questions,
04:51
Mr. Berst.
04:51
MR. KOWALSKI: Can we go off for one
04:51
second, before we do the read and sign and
04:51
close, so I can ask you a question?
04:51
04:51
MR. KOWALSKI: We'll go back on just
04:51
so you get that we want you to read and
04:52
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///
///
73 (Pages 286 to 289)

877-702-9580
David Berst
Page 290
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sign.
04:52
(Witness excused, 4:52.)
10:50
-----------------------DAVID BERST
Subscribed and sworn to before me
this _______ day of _____________ 2014.
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Page 291
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------------------------
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CERTIFICATE
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
I, RACHEL F. GARD, CSR, RPR, CLR, CRR,
within and for the State of Illinois do hereby
certify:
That DAVID BERST, the witness whose
deposition is hereinbefore set forth, was
duly sworn by me and that such deposition
is a true record of the testimony given by
such witness.
I further certify that I am not
related to any of the parties to this
action by blood or marriage; and that I am
in no way interested in the outcome of this
matter.
IN WITNESS WHEREOF, I have hereunto
set my hand this 13th day of November, 2014.
---------------------------------RACHEL F. GARD, CSR, RPR, CLR, CRR
Page 292
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NAME OF CASE: Jake Corman v. NCAA

DATE OF DEPOSITION: 11/12/14
NAME OF WITNESS: David Berst
Reason codes:
1. To clarify the record.
2. To conform to the facts.
3. To correct transcription errors.
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Page ______ Line ______ Reason ______

From __________________to____________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
From __________________to ___________
Page ______ Line ______ Reason ______
______________________
David Berst
74 (Pages 290 to 292)

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David Berst
Page 1
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Page 6
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Y
yards (1)
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yeah (58)
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120:12 121:17
122:8 124:11
130:22,24 132:25
150:19 157:8 164:2
167:13,13 169:15
170:3 180:23
186:15 193:16
196:11,14 197:10
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206:21 216:24
223:10,21 241:21
251:14,22 253:16
Z
ZANDRIA (1)
5:16
zero (2)
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01:17 (19)
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01:29 (20)
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171:10,11,12,13,14
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211:21,22,23,24,25
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35:19
09:40 (23)
35:20,21,22,23,24,25
36:1,2,3,4,5,6,7,8,9
36:10,11,12,13,14
36:15,16,17
09:41 (21)
36:18,19,20,21,22,23
36:24,25 37:1,2,3,4
37:5,6,7,8,9,10,11
37:12,13
09:42 (20)
37:14,15,16,17,18,19
37:20,21,22,23,24
37:25 38:1,2,3,4,5,6
38:7,8
09:43 (23)
38:9,10,11,12,13,14
38:15,16,17,18,19
38:20,21,22,23,24
38:25 39:1,2,3,4,5,6
09:44 (18)
39:7,8,9,10,11,12,13
39:14,15,16,17,18
39:19,20,21,22,23
39:24
09:45 (22)
39:25 40:1,2,3,4,5,6,7
40:8,9,10,11,12,13
40:14,15,16,17,18
40:19,20,21
09:46 (22)
40:22,23,24,25 41:1,2
41:3,4,5,6,7,8,9,10
41:11,12,13,14,15
41:16,17,18
09:47 (19)
41:19,20,21,22,23,24
41:25 42:1,2,3,4,5,6
42:7,8,9,10,11,12
09:48 (25)
42:13,14,15,16,17,18
42:19,20,21,22,23
42:24,25 43:1,2,3,4
43:5,6,7,8,9,10,11
43:12
09:49 (20)
43:13,14,15,16,17,18
43:19,20,21,22,23
43:24,25 44:1,2,3,4
44:5,6,7
09:50 (14)
44:8,9,10,11,12,13,14
44:15,16,17,18,19
44:20,21
09:51 (22)
44:22,23,24,25 45:1,2
45:3,4,5,6,7,8,9,10
45:11,12,13,14,15
45:16,17,18
09:52 (17)
45:19,20,21,22,23,24
45:25 46:1,2,3,4,5,6
46:7,8,9,10
09:53 (8)
46:11,12,13,14,15,16
46:17,18
09:54 (21)
46:19,20,21,22,23,24
46:25 47:1,2,3,4,5,6
47:7,8,9,10,11,12
47:13,14
09:55 (15)
47:15,16,17,18,19,20
47:21,22,23,24,25
48:1,2,3,4
09:56 (16)
48:5,6,7,8,9,10,11,12
48:13,14,15,16,17
48:18,19,20
09:57 (15)
48:21,22,23,24,25
49:1,2,3,4,5,6,7,8,9
49:10
09:58 (16)
49:11,12,13,14,15,16
49:17,18,19,20,21
49:22,23,24,25 50:1
09:59 (18)
877-702-9580
50:2,3,4,5,6,7,8,9,10
50:11,12,13,14,15
50:16,17,18,19
1
1 (10)
1:6 6:8 32:22 33:8
35:8,14 36:25 65:14
214:6 292:5
1:30 (1)
117:24
10 (28)
6:17 63:17,17 97:6
123:6 129:6,8
132:15 197:5,9,14
197:19 198:6 199:1
199:8,13,14,16,17
199:21,24,25 200:2
200:6 251:7,10
252:15 279:19
10/0 (1)
254:8
10:00 (19)
50:20,21,22,23,24,25
51:1,2,3,4,5,6,7,8,9
51:10,11,12,13
10:01 (15)
51:14,15,16,17,18,19
51:20,21,22,23,24
51:25 52:1,2,3
10:02 (15)
52:4,5,6,7,8,9,10,11
52:12,13,14,15,16
52:17,18
10:03 (16)
52:19,20,21,22,23,24
52:25 53:1,2,3,4,5,6
53:7,8,9
10:04 (16)
53:10,11,12,13,14,15
53:16,17,18,19,20
53:21,22,23,24,25
10:05 (18)
54:1,2,3,4,5,6,7,8,9
54:10,11,12,13,14
54:15,16,17,18
10:06 (15)
54:19,20,21,22,23,24
54:25 55:1,2,3,4,5,6
55:7,8
10:07 (14)
55:9,10,11,12,13,14
55:15,16,17,18,19
55:20,21,22
David Berst
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55:23,24,25 56:1,2,3
56:4,5,6,7,8,9,10,11
56:12,13,14
10:09 (19)
56:15,16,17,18,19,20
56:21,22,23,24,25
57:1,2,3,4,5,6,7,8
10:10 (16)
57:9,10,11,12,13,14
57:15,16,17,18,19
57:20,21,22,23,24
10:11 (20)
57:25 58:1,2,3,4,5,6,7
58:8,9,10,11,12,13
58:14,15,16,17,18
58:19
10:12 (19)
58:20,21,22,23,24,25
59:1,2,3,4,5,6,7,8,9
59:10,11,12,13
10:13 (18)
59:14,15,16,17,18,19
59:20,21,22,23,24
59:25 60:1,2,3,4,5,6
10:14 (19)
60:7,8,9,10,11,12,13
60:14,15,16,17,18
60:19,20,21,22,23
60:24,25
10:15 (18)
61:1,2,3,4,5,6,7,8,9
61:10,11,12,13,14
61:15,16,17,18
10:16 (16)
61:19,20,21,22,23,24
61:25 62:1,2,3,4,5,6
62:7,8,9
10:17 (15)
62:10,11,12,13,14,15
62:16,17,18,19,20
62:21,22,23,24
10:18 (11)
62:25 63:1,2,3,4,5,6,7
63:8,9,10
10:33 (11)
63:11,12,13,14,15,16
63:17,18,19,20,21
10:34 (16)
63:22,23,24,25 64:1,2
64:3,4,5,6,7,8,9,10
64:11,12
10:35 (14)
64:13,14,15,16,17,18
64:19,20,21,22,23
64:24,25 65:1
10:36 (15)
65:2,3,4,5,6,7,8,9,10
65:11,12,13,14,15
65:16
10:37 (14)
65:17,18,19,20,21,22
65:23,24,25 66:1,2
66:3,4,5
10:38 (22)
66:6,7,8,9,10,11,12
66:13,14,15,16,17
66:18,19,20,21,22
66:23,24,25 67:1,2
10:39 (19)
67:3,4,5,6,7,8,9,10,11
67:12,13,14,15,16
67:17,18,19,20,21
10:40 (18)
67:22,23,24,25 68:1,2
68:3,4,5,6,7,8,9,10
68:11,12,13,14
10:41 (23)
68:15,16,17,18,19,20
68:21,22,23,24,25
69:1,2,3,4,5,6,7,8,9
69:10,11,12
10:42 (20)
69:13,14,15,16,17,18
69:19,20,21,22,23
69:24,25 70:1,2,3,4
70:5,6,7
10:43 (18)
70:8,9,10,11,12,13,14
70:15,16,17,18,19
70:20,21,22,23,24
70:25
10:44 (20)
71:1,2,3,4,5,6,7,8,9
71:10,11,12,13,14
71:15,16,17,18,19
71:20
10:45 (17)
71:21,22,23,24,25
72:1,2,3,4,5,6,7,8,9
72:10,11,12
10:46 (18)
72:13,14,15,16,17,18
72:19,20,21,22,23
72:24,25 73:1,2,3,4
73:5
10:47 (21)
73:6,7,8,9,10,11,12
73:13,14,15,16,17
73:18,19,20,21,22
73:23,24,25 74:1
10:48 (20)
74:2,3,4,5,6,7,8,9,10
74:11,12,13,14,15
74:16,17,18,20,21
74:22
10:49 (2)
74:23,24
10:50 (15)
74:25 75:1,2,3,4,5,6,7
75:8,9,10,11,12,13
290:2
10:51 (20)
75:14,15,16,17,18,19
75:20,21,22,23,24
75:25 76:1,2,3,4,5,6
76:7,8
10:52 (21)
76:9,10,11,12,13,14
76:15,16,17,18,19
76:20,21,22,23,24
76:25 77:1,2,3,4
10:53 (19)
77:5,6,7,8,9,10,11,12
77:13,14,15,16,17
77:18,19,20,21,22
77:23
10:54 (19)
77:24,25 78:1,2,3,4,5
78:6,7,8,9,10,11,12
78:13,14,15,16,17
10:55 (19)
78:18,19,20,21,22,23
78:24,25 79:1,2,3,4
79:5,6,7,8,9,10,11
10:56 (21)
79:12,13,14,15,16,17
79:18,19,20,21,22
79:23,24,25 80:1,2
80:3,4,5,6,7
10:57 (22)
80:8,9,10,11,12,13,14
80:15,16,17,18,19
80:20,21,22,23,24
80:25 81:1,2,3,4
10:58 (21)
81:5,6,7,8,9,10,11,12
81:13,14,15,16,17
81:18,19,20,21,22
81:23,24,25
10:59 (19)
82:1,2,3,4,5,6,7,8,9
82:10,11,12,13,14
82:15,16,17,18,19
10th (1)
124:13
11 (7)
2:8 6:18 35:23 36:2
131:22,23 251:12
11/12/14 (1)
292:2
11:00 (20)
82:20,21,22,23,24,25
83:1,2,3,4,5,6,7,8,9
83:10,11,12,13,14
11:01 (24)
83:15,16,17,18,19,20
83:21,22,23,24,25
84:1,2,3,4,5,6,7,8,9
84:10,11,12,13
11:02 (28)
84:14,15,16,17,18,19
84:20,21,22,23,24
84:25 85:1,2,3,4,5,6
85:7,8,9,10,11,12
85:13,14,15,16
11:03 (17)
85:17,18,19,20,21,22
85:23,24,25 86:1,2
86:3,4,5,6,7,8
11:04 (24)
86:9,10,11,12,13,14
86:15,16,17,18,19
86:20,21,22,23,24
86:25 87:1,2,3,4,5,6
87:7
11:05 (23)
87:8,9,10,11,12,13,14
87:15,16,17,18,19
87:20,21,22,23,24
87:25 88:1,2,3,4,5
11:06 (23)
88:6,7,8,9,10,11,12
88:13,14,15,16,17
88:18,19,20,21,22
88:23,24,25 89:1,2
89:3
11:07 (17)
89:4,5,6,7,8,9,10,11
89:12,13,14,15,16
89:17,18,19,20
11:08 (15)
89:21,22,23,24,25
90:1,2,3,4,5,6,7,8,9
90:10
11:09 (18)
877-702-9580
90:11,12,13,14,15,16
90:17,18,19,20,21
90:22,23,24,25 91:1
91:2,3
11:10 (24)
91:4,5,6,7,8,9,10,11
91:12,13,14,15,16
91:17,18,19,20,21
91:22,23,24,25 92:1
92:2
11:11 (21)
92:3,4,5,6,7,8,9,10,11
92:12,13,14,15,16
92:17,18,19,20,21
92:22,23
11:12 (25)
92:24,25 93:1,2,3,4,5
93:6,7,8,9,10,11,12
93:13,14,15,16,17
93:18,19,20,21,22
93:23
11:13 (30)
93:24,25 94:1,2,3,4,5
94:6,7,8,9,10,11,12
94:13,14,15,16,17
94:18,19,20,21,22
94:23,24,25 95:1,2
95:3
11:14 (37)
95:4,5,6,7,8,9,10,11
95:12,13,14,15,16
95:17,18,19,20,21
95:22,23,24,25 96:1
96:2,3,4,5,6,7,8,9
96:10,11,12,13,14
96:15
11:15 (37)
96:16,17,18,19,20,21
96:22,23,24,25 97:1
97:2,3,4,5,6,7,8,9
97:10,11,12,13,14
97:15,16,17,18,19
97:20,21,22,23,24
97:25 98:1,2
11:16 (35)
98:3,4,5,6,7,8,9,10,11
98:12,13,14,15,16
98:17,18,19,20,21
98:22,23,24,25 99:1
99:2,3,4,5,6,7,8,9
99:10,11,12
11:17 (42)
99:13,14,15,16,17,18
99:19,20,21,22,23
David Berst
Page 43
99:24,25 100:1,2,3
100:4,5,6,7,8,9,10
100:11,12,13,14,15
100:16,17,18,19,20
100:21,22,23,24,25
101:1,2,3,4
11:18 (37)
101:5,6,7,8,9,10,11
101:12,13,14,15,16
101:17,18,19,20,21
101:22,23,24,25
102:1,2,3,4,5,6,7,8
102:9,10,11,12,13
102:14,15,16
11:19 (33)
102:17,18,19,20,21
102:22,23,24,25
103:1,2,3,4,5,6,7,8
103:9,10,11,12,13
103:14,15,16,17,18
103:19,20,21,22,23
103:24
11:20 (30)
103:25 104:1,2,3,4,5
104:6,7,8,9,10,11
104:12,13,14,15,16
104:17,18,19,20,21
104:22,23,24,25
105:1,2,3,4
11:21 (27)
105:5,6,7,8,9,10,11
105:12,13,14,15,16
105:17,18,19,20,21
105:22,23,24,25
106:1,2,3,4,5,6
11:22 (18)
106:7,8,9,10,11,12,13
106:14,15,16,17,18
106:19,20,21,22,23
106:24
11:23 (4)
106:25 107:1,2,3
11:24 (23)
107:4,5,6,7,8,9,10,11
107:12,13,14,15,16
107:17,18,19,20,21
107:22,23,24,25
108:1
11:25 (22)
108:2,3,4,5,6,7,8,9,10
108:11,12,13,14,15
108:16,17,18,19,20
108:21,22,23
11:26 (20)
108:24,25 109:1,2,3,4
109:5,6,7,8,9,10,11
109:12,13,14,15,16
109:17,18
11:27 (24)
109:19,20,21,22,23
109:24,25 110:1,2,3
110:4,5,6,7,8,9,10
110:11,12,13,14,15
110:16,17
11:28 (21)
110:18,19,20,21,22
110:23,24,25 111:1
111:2,3,4,5,6,7,8,9
111:10,11,12,13
11:29 (18)
111:14,15,16,17,18
111:19,20,21,22,23
111:24,25 112:1,2,3
112:4,5,6
11:30 (24)
112:7,8,9,10,11,12,13
112:14,15,16,17,18
112:19,20,21,22,23
112:24,25 113:1,2,3
113:4,5
11:31 (17)
113:6,7,8,9,10,11,12
113:13,14,15,16,17
113:18,19,20,21,22
11:32 (21)
113:23,24,25 114:1,2
114:3,4,5,6,7,8,9,10
114:11,12,13,14,15
114:16,17,18
11:33 (21)
114:19,20,21,22,23
114:24,25 115:1,2,3
115:4,5,6,7,8,9,10
115:11,12,13,14
11:34 (21)
115:15,16,17,18,19
115:20,21,22,23,24
115:25 116:1,2,3,4
116:5,6,7,8,9,10
11:35 (10)
116:11,12,13,14,15
116:16,17,18,19,20
11:36 (16)
116:21,22,23,24,25
117:1,2,3,4,5,6,7,8
117:9,10,11
11:37 (10)
117:12,13,14,15,16
117:17,18,19,20,21
11:38 (17)
117:22,23,24,25
118:1,2,3,4,5,6,7,8
118:9,10,11,12,13
11:39 (24)
118:14,15,16,17,18
118:19,20,21,22,23
118:24,25 119:1,2,3
119:4,5,6,7,8,9,10
119:11,12
11:40 (28)
119:13,14,15,16,17
119:18,19,20,21,22
119:23,24,25 120:1
120:2,3,4,5,6,7,8,9
120:10,11,12,13,14
120:15
11:41 (27)
120:16,17,18,19,20
120:21,22,23,24,25
121:1,2,3,4,5,6,7,8
121:9,10,11,12,13
121:14,15,16,17
11:42 (31)
121:18,19,20,21,22
121:23,24,25 122:1
122:2,3,4,5,6,7,8,9
122:10,11,12,13,14
122:15,16,17,18,19
122:20,21,22,23
11:43 (20)
122:24,25 123:1,2,3,4
123:5,6,7,8,9,10,11
123:12,13,14,15,16
123:17,18
11:44 (12)
123:19,20,21,22,23
123:24,25 124:1,2,3
124:4,5
11:45 (30)
124:6,7,8,9,10,11,12
124:13,14,15,16,17
124:18,19,20,21,22
124:23,24,25 125:1
125:2,3,4,5,6,7,8,9
125:10
11:46 (23)
125:11,12,13,14,15
125:16,17,18,19,20
125:21,22,23,24,25
126:1,2,3,4,5,6,7,8
11:47 (26)
126:9,10,11,12,13,14
126:15,16,17,18,19
126:20,21,22,23,24
126:25 127:1,2,3,4
127:5,6,7,8,9
11:48 (16)
127:10,11,12,13,14
127:15,16,17,18,19
127:20,21,22,23,24
127:25
11:49 (20)
128:1,2,3,4,5,6,7,8,9
128:10,11,12,13,14
128:15,16,17,18,19
128:20
11:50 (17)
128:21,22,23,24,25
129:1,2,3,4,5,6,7,8
129:9,10,11,12
11:51 (20)
129:13,14,15,16,17
129:18,19,20,21,22
129:23,24,25 130:1
130:2,3,4,5,6,7
11:52 (26)
130:8,9,10,11,12,13
130:14,15,16,17,18
130:19,20,21,22,23
130:24,25 131:1,2,3
131:4,5,6,7,8
11:53 (17)
131:9,10,11,12,13,14
131:15,16,17,18,19
131:20,21,22,23,24
131:25
11:54 (19)
132:1,2,3,4,5,6,7,8,9
132:10,11,12,13,14
132:15,16,17,18,19
11:55 (20)
132:20,21,22,23,24
132:25 133:1,2,3,4
133:5,6,7,8,9,10,11
133:12,13,14
11:56 (17)
133:15,16,17,18,19
133:20,21,22,23,24
133:25 134:1,2,3,4
134:5,6
11:57 (15)
134:7,8,9,10,11,12,13
134:14,15,16,17,18
134:19,20,21
11:58 (16)
134:22,23,24,25
877-702-9580
135:1,2,3,4,5,6,7,8
135:9,10,11,12
11:59 (18)
135:13,14,15,16,17
135:18,19,20,21,22
135:23,24,25 136:1
136:2,3,4,5
116 (1)
6:12
117 (1)
6:13
12 (21)
1:19 2:4 6:8,19 34:16
35:14,23 36:2
113:22 116:23
119:24 133:12
163:17,20 182:20
251:21 252:3 285:2
285:3,6,7
12/0 (1)
254:8
12/zero (1)
253:14
12:00 (16)
136:6,7,8,9,10,11,12
136:13,14,15,16,17
136:18,19,20,21
12:01 (17)
136:22,23,24,25
137:1,2,3,4,5,6,7,8
137:9,10,11,12,13
12:02 (22)
137:14,15,16,17,18
137:19,20,21,22,23
137:24,25 138:1,2,3
138:4,5,6,7,8,9,10
12:03 (15)
138:11,12,13,14,15
138:16,17,18,19,20
138:21,22,23,24,25
12:04 (20)
139:1,2,3,4,5,6,7,8,9
139:10,11,12,13,14
139:15,16,17,18,19
139:20
12:05 (19)
139:21,22,23,24,25
140:1,2,3,4,5,6,7,8
140:9,10,11,12,13
140:14
12:06 (17)
140:15,16,17,18,19
140:20,21,22,23,24
140:25 141:1,2,3,4
David Berst
Page 44
141:5,6
12:07 (19)
141:7,8,9,10,11,12,13
141:14,15,16,17,18
141:19,20,21,22,23
141:24,25
12:08 (22)
142:1,2,3,4,5,6,7,8,9
142:10,11,12,13,14
142:15,16,17,18,19
142:20,21,22
12:09 (20)
142:23,24,25 143:1,2
143:3,4,5,6,7,8,9,10
143:11,12,13,14,15
143:16,17
12:10 (29)
143:18,19,20,21,22
143:23,24,25 144:1
144:2,3,4,5,6,7,8,9
144:10,11,12,13,14
144:15,16,17,18,19
144:20,21
12:11 (21)
144:22,23,24,25
145:1,2,3,4,5,6,7,8
145:9,10,11,12,13
145:14,15,16,17
12:12 (5)
145:18,19,20,21,22
12:53 (7)
145:23,24,25 146:1,2
146:3,4
12:54 (19)
146:5,6,7,8,9,10,11
146:12,13,14,15,16
146:17,18,19,20,21
146:22,23
12:55 (24)
146:24,25 147:1,2,3,4
147:5,6,7,8,9,10,11
147:12,13,14,15,16
147:17,18,19,20,21
147:22
12:56 (19)
147:23,24,25 148:1,2
148:3,4,5,6,7,8,9,10
148:11,12,13,14,15
148:16
12:57 (18)
148:17,18,19,20,21
148:22,23,24,25
149:1,2,3,4,5,6,7,8
149:9
12:58 (24)
149:10,11,12,13,14
149:15,16,17,18,19
149:20,21,22,23,24
149:25 150:1,2,3,4
150:5,6,7,8
12:59 (19)
150:9,10,11,12,13,14
150:15,16,17,18,19
150:20,21,22,23,24
150:25 151:1,2
123 (1)
6:14
125 (1)
6:15
127 (1)
6:16
129 (1)
6:17
12th (8)
118:2 121:25 122:17
123:2 132:17 133:3
133:6 160:13
13 (7)
6:20 35:22 106:23
179:23,24 194:12
202:7
13088 (1)
251:25
131 (1)
6:18
13th (1)
291:18
14 (5)
6:21 35:22 150:4
230:1,4
15 (13)
6:22 12:11 26:3 33:4
41:19 42:17 121:20
151:5 201:17 202:5
202:5 233:20,22
1500 (1)
3:4
15222 (1)
5:8
16 (3)
6:23 235:1,3
163 (1)
6:19
16th (1)
46:19
17 (11)
7:3 77:18 105:22
107:15 132:15
133:12 182:20
195:18 230:18
238:8,10
17108 (1)
4:20
179 (1)
6:20
17th (1)
160:13
17th/18th (1)
133:4
18 (8)
7:4 116:13 234:5,8
235:14 236:18
238:19,20
19 (8)
7:5 117:16 127:7
238:15 248:16,22
248:22 259:9
19102 (1)
3:5
19341 (1)
3:19
1972 (2)
12:2 288:24
1990 (1)
177:12
1994 (1)
240:22
1998 (2)
26:10 240:25
19th (2)
238:14 244:12
2
2 (12)
6:9 46:10,11,13 62:23
62:23 65:14 73:5
81:12 89:13 214:6
292:6
2,000 (1)
137:10
2:00 (1)
124:7
20 (3)
7:6 248:18,23
200 (1)
2:9
20004 (1)
4:6
2011 (12)
6:8 35:14 44:9,25
45:8 46:20 48:22
63:15 77:18 111:3
111:15 287:13
2012 (10)
7:5,7 74:6 111:16
113:2,22 123:2,6
249:1,14
2013 (1)
1:6
2014 (4)
1:19 2:4 290:6 291:18
20th (1)
258:21
21 (10)
7:5,7,8 116:10 127:9
249:1,14 254:23,24
255:3
218 (1)
4:19
22 (3)
7:9 254:23 255:1
225 (1)
5:7
23 (4)
7:10 164:11 262:14
262:18
230 (1)
6:21
233 (1)
6:22
235 (1)
6:23
238 (2)
7:3,4
23rd (3)
234:14,15 237:1
24 (6)
7:11 129:5 138:14
170:18 269:4,6
248 (2)
7:5,6
25 (6)
7:12 12:9 18:20
131:21 279:9,13
254 (1)
7:8
255 (1)
7:9
26 (2)
179:22,22
262 (1)
7:10
269 (1)
7:11
27 (2)
200:15 230:4
877-702-9580
279 (1)
7:12
28 (1)
233:12
3
3 (9)
6:10 65:14 74:20,22
81:12 89:13 214:6
255:19 292:7
3:00 (4)
124:7 145:19 200:25
201:1
30 (8)
226:7 227:19 228:3,8
234:23,24 282:12
282:14
31 (1)
234:23
32 (7)
33:13 34:3 66:21,24
164:13 238:18
259:10
341 (1)
123:20
34th (1)
1:3
35 (1)
6:8
350 (1)
3:18
350-ish (1)
34:3
4
4 (7)
6:11 62:24 65:14 77:1
81:12 214:11 285:1
4.1.2 (2)
152:4 158:11
4:52 (1)
290:2
40-member (1)
33:12
46 (1)
6:9
5
5 (10)
6:12 46:11 62:25
81:13 97:2 116:14
116:15 248:8,12
279:4
5/10 (1)
David Berst
Page 45
126:11
5:30 (1)
117:25
50 (1)
70:2
555 (1)
4:5
259:14
6
6 (5)
6:13 46:10 117:16,17
254:7
60 (2)
226:6 228:19
60-day (1)
34:8
65 (1)
33:3
7
7 (4)
6:14 123:3,5,8
7/11/12 (1)
126:9
7/13 (1)
128:14
7/17 (1)
132:1
7/22/12 (1)
262:20
7/25 (1)
255:18
70s (2)
28:2 259:14
74 (1)
6:10
77 (1)
6:11
8
8 (4)
6:15 98:3 125:17,19
80s (2)
20:19 259:14
86746 (1)
1:25
9
9 (5)
6:16 63:17 74:21
127:11,13
9:05 (2)
2:5 116:25
90s (1)
877-702-9580

Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

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Deposition Testimony of David Berst, NCAA Vice President of Division I Governance (Nov. 11, 2014)

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David Berst

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

JAKE CORMAN, in his official

NATIONAL COLLEGIATE ATHLETIC

DEPOSITION OF DAVID BERST

November 12, 2014

Deposition of DAVID BERST, at the offices

LATSHA DAVIS & McKENNA

LATHAM & WATKINS

THE LAW FIRM OF KILLIAN & GEPHART

ALSO PRESENT: SCOTT BEARBY, NCAA

Exhibit 6 Appointment invite

Exhibit 7 Calendar invite

Exhibit 8 Appointment invite

Exhibit 9 Telephone call invite

Exhibit 10 Telephone call invite

Exhibit 11 Telephone call invite

Exhibit 20 Draft executive committee

I think, but if you need to take a look at a

you -- again, so we don't have to hit it every

senior staff member on the NCAA staff. I

establish policies going forward.

were to be investigated by the enforcement

to either the president or the chancellor of

infractions, you're putting the institution on

any source. So we get information from

concern related to NCAA rules. So sure. You

A. It was an organization of arson

with the committee on infractions, is that

right that they are taking a look at the facts

A. We don't release them. Many

as well as you did.

enforcement may actually be putting on evidence

how it should be considered. I don't know

A. In the very early stages, they did

own work, out what it thought should happen

transfer rules work? Should we have cost of

who are busy at your direction writing

A. That's in part, yes, as well as

business session for discussion first of

as a change in the constitution, would require

council, and I don't think you can get there

use it. All right. That was going to be one

outside of the manual, whether it's online or

that you wouldn't find in the NCAA manual but

resources to help you identify where those

MR. KOWALSKI: Objection to form.

when you were in enforcement, to whom did you

long-tenured NCAA employee?

questions. Many of the rules and policies and

and I believe that my view that I could be of

with me or have no reason to think I'm fooling

at the time sometime in November, and I believe 09:52

it's going to be when they say they're going to

as one for NCAA's enforcement processes to get

Q. Could you explain?

A. I don't know that at that time I

know Julie also pointed out the practical

Now, what I was not willing to give

programs that are too big to fail from the

successful in accomplishing those goals and,

which is supported unconditionally. I think

am, that it had full -- he had full authority

would want to write some additional language