Now that more (not yet full) disclosure surfaces, it is clear to me that Erickson (1) should have called Emmert's bluff; and (2) should have kept the trustees in the loop.
Had he said, in effect, "You (NCAA) don't have the authority or the jurisdiction to hit PSU with a four year death penalty, and if you try to impose it, we will challenge you in court!." he would have been backed by his trustees, every opponent on the PSU schedule (and the Big Ten), plus half the State of Pennsylvania.
I believe he could have then negotiated from a stronger position
I think he probably DID call Emmert's bluff, if you want to call it that instead of an opening negotiating position. Erickson said (to himself in his recounting, but no question at the bargaining table as well) "I can't accept that." And the subtext of that is: "If you push us too far, we'll have no choice but to litigate, which neither of us really wants, so let's talk." Emmert would've understood this very well, and obviously did.
Hey Vowel: This is not a matter of idiots who don't get it. It's a matter of real world negotiation to find something both sides can live with. Penn State had no obligation to accept just anything NCAA proposed no matter what, no matter if overkill, no matter how ill considered. Nor, Ozzie, does contrition require it to do so. We needn't be blinded by the glare of the torches we hold aloft. And promptly shifting metaphors, Penn State has legitimate interests in this matter and needn't grovel like a soon-to-be-executed eunuch before the sultan.
Erickson had an obligation to stick up for the interests of the university and did. And "everybody else in the country" wouldn't think otherwise if it ended up in court, particularly if Penn State won, which in my personal opinion it would have. But at what cost?
Which brings us to the dissident trustees. It's not "laughable" that they might consider themselves to be something more than the aforementioned prostrate eunuch. One may scorn and loathe them, based on whatever one knows or thinks one knows about them (there are a lot of them, and I don't view them as a lump), but their opposition to the idea of Erickson making an end run around them -- echh, the inevitable football images creep in again -- isn't at all out of line.
Whether or not they agree with the terms of the settlement, trustees have a fiduciary obligation to look after the money. They can duly delegate part of that power, for example to a qualified investment manager subject to proper monitoring, but they can be personally liable if they let others assume their function without proper delegation. Again, Erickson says he consulted with counsel and had the authority. Not having read the relevant PSU governing documents, I'd give him the benefit of the doubt pending events.
Having said that, I think the dissident trustees would be unwise to pursue the dual burden of proving in court, first, that Erickson lacked the authority, and then in a likely second lawsuit that the NCAA lacked the authority to impose whatever it would then try to impose. (It hasn't unilaterally imposed anything at this point. It has achieved something by threat to impose.)
The consent decree isn't all that bad from Penn State's point of view IMO. I've said that I like where the money is going, and will add that it's probably more effectively dedicated to anti-child abuse organizations than the millions that will be paid to particular victims, whose scars will not be healed by money, and their attorneys.
Above all, there's something to be said for stability in the result, and to be said for going forward to something other than years of uncertainty and incremental legal expense. The same will hold true of the civil settlements, rather than trials to a conclusion, that I suspect will be reached. The board of trustees and president need to clean up their relationship as best they can to work effectively for the university.
