As they’re about to discover (again) during collective bargaining with their bosses, NHL players are not sympathetic figures with the media or the public. “Millionaire players.” “Men playing a boy’s game.” “Try a real job and then complain.”
No one knows these criticisms better than Paul Kelly, a former executive director of the NHL Players’ Association. He’s watching the talks between the union and the NHL from a safe distance. He has a new file these days with his sports-law practice at Jackson Lewis in Boston. He’s going to be hearing worse things than “millionaire players.”
Kelly is representing the family of the late Joe Paterno, the former football coach at Penn State University, and some members of Penn State’s board of trustees who were criticized in a report by Louis Freeh, the former director of the FBI who was hired by the university trustees to look into the Jerry Sandusky sexual-abuse scandal at PSU. Kelly is also representing all the former players and coaches from 1998 to 2011 whose 111 wins in that period were expunged by the National Collegiate Athletic Association.
It’s safe to say that the media firestorm that Paterno abetted a sexual predator is as toxic as a file gets.
How does Kelly fight the public perception of what he admits are “evil actions” by Sandusky?
“In our business you’re often forced to face that ethical question,” Kelly said. “I have represented people charged with heinous crimes, I’ve represented Catholic priests accused of being pedophiles, I’ve represented students charged with rape, and politicians charged with corruption. Everyone deserves representation.
“In this business, once in a while you’ve got to put on the helmet and move forward. But I’ve never shied away from cases like this. As someone who practises white-collar and sports law and has been involved in NCAA matters, I welcome the opportunity to be involved in this case and hope some long-term good can come from this.”
Kelly met the Paterno family about 18 months ago at a banquet at Penn State. The parties kept in touch on a friendly basis. When the Freeh report was issued last month, the Paternos contacted Kelly. They felt the NCAA had ignored its own rules and regulations when, within a couple of weeks of the report’s release, it adopted the Freeh report as its own, even though the report was never intended to be a platform for punitive action by the NCAA.
As a result, Kelly filed two separate administrative appeals last Monday with the NCAA. One is on behalf of some members of the board of trustees who feel the NCAA breached its own constitution and bylaws, thereby violating the right of due process. The second appeal is on behalf of the players and coaches.
“They feel there was a lack of due process, that there was no input from them whatsoever,” said Kelly, 57, a former U.S. prosecutor. “This is a sanction that penalizes people innocent of any involvement with Jerry Sandusky’s evil actions.”
Kelly knows that, in the hostile media climate, such distinctions can get trampled.
“Sandusky’s horrendous actions and the actions of some of the administrators just blurs with people, they block out everything else,” Kelly said. “They don’t want to hear anything else. Look, no one for a minute denies that what occurred here is horrendous, and Jerry Sandusky should never get out of prison. And that major mistakes were made at various levels in the university. But this is a question about how the NCAA exceeded its authority.”
Such a volatile issue can bring out extreme reactions.
“Believe it or not,” Kelly said, “there hasn’t been a single vitriolic e-mail saying, ‘How could you defend people who abuse children?’ I have been flooded with hundreds and hundreds of e-mails from interested parties, and 99 per cent of them have been, ‘We applaud your clients and the courageous stance they’re taking. Please don’t give up the fight.’ The ones that have not been supportive have said, ‘It’s time to begin the healing, time to move on and put this in the past.’
“I understand feelings about moving on, and I respect [current PSU football] coach [Bill] O’Brien, who’s been saying those things. In my view, I don’t think you can heal where you still have fundamental issues about whether there was a fair hearing. Until you can have a full understanding of them and clarify them, can the true healing begin? A flawed process produces a flawed result.”
Lester Munson, a legal writer for Sports Illustrated, thinks the NCAA has taken on the wrong person. As a lawyer and investigator, he writes, Kelly is “one of the best I have seen in 23 years of reporting on legal issues in the sports industry. He is the last guy the NCAA wants to see digging around in the procedures it followed.”
Kelly figures he won’t be distracted by hockey matters as he pursues the PSU case. “Originally I was predicting no hockey till November,” he said about the chances of another NHL lockout. “But knowing the people involved, I may have to revise that estimate a little later.”