Federal Judge Dismisses Pennsylvania Gov. Corbett's Lawsuit Against NCAA

A federal judge Thursday dismissed a lawsuit and concluded there was no legal basis for the governor to challenge the sanctions assessed against Penn State University last year in the wake of the Jerry Sandusky child sex abuse scandal.
June 7, 2013

By Paula Reed Ward and Mark Dent

A federal judge Thursday dismissed a lawsuit Pennsylvania Gov. Tom Corbett filed against the NCAA, saying it "failed on all prongs."

Chief U.S. District Judge Yvette Kane of the Middle District of Pennsylvania concluded there was no legal basis for the governor to challenge the sanctions assessed against Penn State University last year in the wake of the Jerry Sandusky child sex abuse scandal, instead calling it a "Hail Mary pass."

"In another forum the complaint's appeal to equity and common sense may win the day, but in the antitrust world these arguments fail to advance the ball."

Mr. Corbett filed the antitrust action Jan. 2. Judge Kane heard oral argument on an NCAA motion to dismiss the lawsuit May 20. He contended that the sanctions violate antitrust laws because they will cause a decline in Penn State's revenue.

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Speaking to reporters in Downtown Pittsburgh Thursday afternoon, Mr. Corbett said he was disappointed in the judge's ruling.

"I still view this as the students, the alumni, the businesses of central Pennsylvania are the ones being punished in this, for something they absolutely didn't do," he said. "I was concerned about the $60 million [NCAA fine] that so far is still scheduled to go, some of it, outside the state."

The governor added that he believes the issues raised in the lawsuit deserve a complete review by the court.

"I still believe we had standing, and that the NCAA just went way beyond the pale of their charter and their authority," he said.

The governor said he would study the judge's opinion and review his options.

Mr. Corbett had alleged that the sanctions issued by the NCAA -- including wiping out all football team wins by the late head football coach Joe Paterno from 1998 to 2011, a reduction of scholarships for football players from 25 to 15 per year, a ban on bowl appearances for four years and a fine of $60 million -- were an unlawful restraint of trade.

Donald Remy, the NCAA's chief legal officer, released a statement Thursday, saying: "Our hope is that this decision not only will end this case but also serve as a beginning of the end of the divide among those who, like Penn State, want to move forward to put the horror of the Sandusky crimes behind the university and those who want to prolong the fight and with it the pain for all involved."

The NCAA issued its sanctions in July, just 12 days after former FBI director Louis Freeh, whom Penn State hired to investigate its handling of complaints against Sandusky, issued a lengthy report.

Mr. Freeh blamed university administrators for concealing Sandusky's crimes out of fear of bad publicity and for allowing a culture that let athletics dictate policy.

Penn State officials signed off on the NCAA sanctions and entered into a consent decree because the organization threatened the elimination of the university's football program for four years if they did not.

"Though widely debated elsewhere," Judge Kane wrote, "the wisdom of [Penn State] President [Rodney] Erickson's decision is not a question for this Court, nor is the relative fairness of the sanctions selected by the NCAA to address the university's admitted failings in the Sandusky matter."

Instead, she continued, the court was only to determine if there was a violation of federal antitrust law.

There was not, she wrote.

Judge Kane wrote that she was not persuaded by the governor's arguments regarding financial injury. Even if there were such a thing, she continued, the governor cannot lawfully put forth such a claim.

"The Governor's complaint implicates the extraordinary power of a non-governmental entity to dictate the course of an iconic public institution, and raises serious questions about the indirect economic impact of NCAA sanctions on innocent parties," Judge Kane wrote. "These are important questions deserving of public debate, but they are not antitrust questions."

Pennsylvania Attorney General Kathleen Kane had no comment. Penn State, too, declined comment.

The spokeswoman for Penn Staters For Responsible Stewardship, Maribeth Schmidt, called the ruling disappointing.

"Clearly the governor presented a compelling case," she said. "It's a shame because you can't point to a single NCAA violation Penn State has had. It's just so unfair. We'll hang our hopes on the lawsuit of the players, coaches, faculty and Paternos. That's what we've got."

Wick Sollers, an attorney for the Paterno family, said Thursday he was disappointed by the NCAA's response to the dismissal of Mr. Corbett's lawsuit.

"In spite of the fact that the Freeh report on which the NCAA sanctions against Penn State are based has been proven to be fundamentally flawed, it is the NCAA's position that the matter should be closed and no further attempt made to learn the facts of the Sandusky scandal," Mr. Sollers said. "The message to victims, the university, the community and those wrongfully blamed by the Freeh report is that speed and secrecy are more important than truth and transparency."

He asked that the NCAA release the materials it used to reach the penalties imposed and schedule a public hearing on the issues.

"The one goal everyone should have in the Sandusky scandal is to know the truth so that future crimes of this type can be prevented," Mr. Sollers continued. "If the NCAA continues to refuse to abide by its own rules and declines to voluntarily participate in this process, the only recourse is for a court to ensure that it happens."

Ms. Schmidt said she hoped Mr. Corbett would press his case among university trustees.

"The alumni base would have every expectation that he continue his fight in the boardroom and try to accept the trustees to get Freeh to come into the meeting room," Ms. Schmidt said. "One of the things he offered was he would come back on campus and explain the report. We've been encouraging that."

Also on Thursday, Quinnipiac University released a poll that showed a majority of likely Pennsylvania voters believe the NCAA sanctions hurt Penn State's football program somewhat or a great deal.

The independent poll conducted from Friday through Tuesday shows that 46 percent of likely voters found the sanctions to be too severe. Thirty-two percent say they are appropriate. The poll also showed a majority of those questioned believe Mr. Corbett did not do enough to investigate the scandal when he was state attorney general.

"Pennsylvanians think Gov. Tom Corbett fumbled the Sandusky probe," said Tim Malloy, assistant director of the Quinnipiac University Polling Institute.

Sandusky, a former assistant football coach at Penn State, was found guilty June 22 and sentenced in October to 30 to 60 years in prison.

Criminal charges are still pending against three top administrators at Penn State, including former president Graham Spanier. There is still no preliminary hearing date scheduled for Mr. Spanier or for Timothy Curley, the former athletic director, or Gary Schultz, former vice president of business and finance.

(c)2013 the Pittsburgh Post-Gazette


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