SBJ/January 14-20, 2013/Opinion

Timing of lawsuit against NCAA undermines its real intent

Just when Penn State was beginning to move forward in the healing process, Pennsylvania Gov. Tom Corbett has stepped forward with a curiously timed lawsuit asserting that the NCAA exceeded its delegated authority when it penalized Penn State for its role in the Jerry Sandusky scandal. The lawsuit asks that a federal judge throw out the sanctions on antitrust grounds. Those sanctions include a $60 million fine and a four-year ban on bowl games.

While the NCAA probably overreached, the lawsuit is fatally flawed based on poor timing and quite possibly, a lack of legal standing. Simply put, this effort is too little, too late from a purely legal perspective.

When filing a civil lawsuit, the plaintiff must have standing to sue; in simple terms, this is usually defined as a stake in the outcome of the dispute. Pennsylvania would seem to lack legal standing to sue the NCAA in this matter since the government’s relationship to Penn State is based on providing limited financial support and not administrative control of the institution. The complaint attempts to establish standing with multiple references to potential damage to the state’s revenue base.

An additional legal problem is that the university agreed to the sanctions in a consent order last summer and simultaneously waived its right to sue the NCAA. The school has made it clear that it is not a party to the lawsuit. The time to file this type of lawsuit would have been before the university signed the decree and the correct plaintiff to file the lawsuit would have been Penn State. Curiously, Corbett endorsed the signing of the consent decree in his role as a university trustee.

A lawsuit filed by Pennsylvania Gov. Tom Corbett seeks the dismissal of sanctions against Penn State.
Photo by: ICON SMI
The lawsuit asserts that the NCAA is using its monopoly powers to restrain Penn State from competing with other member schools, which sounds competitively paranoid. To prevail, the state must prove that the NCAA acted outside the scope of its legal authority in sanctioning Penn State and that this punishment for a criminal, non-sports matter impairs Penn State’s ability to compete on and off the field.

The lawsuit is seeking an injunction barring the NCAA from enforcing the sanctions. To obtain the injunction, the state must show irreparable harm and a probability that it will succeed at trial. These will be difficult standards to meet.

Protecting the business of football

Sadly and incredulously, the lawsuit seems to confirm the state’s preoccupation with Penn State football, a core finding in the Freeh Report and the foundation for the NCAA’s actions. To illustrate this point, Corbett said that he “didn’t want to file during football season to take away from the team’s momentum.” Corbett also said that he “waited until now to sue over the harsh penalties because he wanted to thoroughly research the legal issues and did not want to interfere with the football season.”

The governor’s legal counsel, James Schultz, essentially made the same point: “Look, this is big business. You have the hospitality industry and all the folks associated with it; the small mom and pop businesses. You have the folks at the university associated with the football program. You have a number of people that have jobs related to the industry of football here in State College and around the Commonwealth.”

These statements seem to confirm both Freeh’s finding and the NCAA’s belief that there was a failure to act by Penn State out of concern that it would damage the football program. The Freeh Report found: “A culture of reverence for the football program that is ingrained at all levels of the campus community.” Apparently it extends to the state government as well. It is hard to fathom that Corbett or Schultz could have missed this finding in their reading of the record.

Political considerations

Corbett, a Republican, said his office did not coordinate this current legal strategy with incoming state Attorney General-elect Kathleen Kane. Instead, the current attorney general, Linda Kelly, granted the governor authority to pursue the matter since she believed the lawsuit could pose a conflict of interest and would drain her staff’s resources and time. Kelly was formerly Corbett’s top deputy when he served as attorney general.

Kane, a Democrat, ran partially on a vow to investigate why it took state prosecutors under Corbett nearly three years to charge Sandusky. Corbett is up for re-election as governor in 2014.

The real goal

Recently, Pennsylvania’s state and congressional lawmakers have objected to use of the NCAA fine to finance child-abuse prevention efforts outside of Pennsylvania. Penn State has already made the first $12 million payment, and an NCAA task force is deciding how and where it should be spent with only 25 percent of it slated for expenditure within Pennsylvania. State Sen. Jake Corman has also filed a lawsuit seeking to force the NCAA to spend the entire fine amount within the state.

Given the tenuous legal nature of the federal lawsuit and the unnecessary embarrassment that it has caused, the real goal may be to simply apply pressure to the NCAA to rethink the disposition of the fine. A more equitable distribution would have 75 percent of the money allocated within Pennsylvania where all of these crimes took place and the victims reside, and 25 percent allocated nationally. To effectively accomplish this goal, the state will have to defeat an anticipated NCAA motion to dismiss the case. If the complaint survives the motion, the costs and disruptive nature of the discovery process may force the NCAA to reassess where the bulk of the money will be spent. For the child sex abuse victims of Pennsylvania, that may be worth the fight, no matter how clumsily fought.

Dave O’Brien (dpo32@drexel.edu) is an associate teaching professor and sport management program director at Drexel University, and is editor of CollegeSportsBusinessNews.com.

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