The Daily Item, Sunbury, PA

News

January 2, 2013

Governor sues NCAA over Penn State sanctions

STATE COLLEGE — In a bold challenge to the NCAA's powers, Pennsylvania's governor claimed in a lawsuit Wednesday that college sports' governing body overstepped its authority and "piled on" when it penalized Penn State over the Jerry Sandusky child molestation scandal.

Gov. Tom Corbett asked that a federal judge throw out the sanctions, which include an unprecedented $60 million fine and a four-year ban on bowl games, arguing that the measures have harmed students, business owners and others who had nothing to do with Sandusky's crimes.

A small number of top NCAA officials inserted themselves "into an issue they had no authority to police under their own bylaws and one that was clearly being handled by the justice system," Corbett said at a news conference.

The case, filed under federal antitrust law, could define just how far the NCAA's authority extends. Up to now, the federal courts have allowed the organization broad power to protect the integrity of college athletics.

In a statement, the NCAA said the lawsuit has no merit and called it an "affront" to Sandusky's victims.

Penn State said it had no role in the lawsuit. In fact, it agreed not to sue as part of the deal with the NCAA accepting the sanctions, which were imposed in July after an investigation found that football coach Joe Paterno and other top officials hushed up sexual-abuse allegations against Sandusky, a former member of Paterno's staff, for more than a decade for fear of bad publicity.

The penalties include a cut in the number of football scholarships the university can award and a rewriting of the record books to erase 14 years of victories under Paterno, who was fired when the scandal broke in 2011 and died of lung cancer a short time later.

The lawsuit represents a reversal by the governor. When Penn State's president consented to the sanctions last summer, Corbett, a member of the Board of Trustees, embraced them as part of the university's effort to repair the damage from the scandal.

Corbett said 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 deal with the NCAA has been unpopular with many fans, students and alumni. Corbett, who is up for re-election next year, deflected a question about whether his response has helped or hurt him politically.

"We're not going to get into the politics of this," he said.

An alumni group, Penn Staters for Responsible Stewardship, applauded the lawsuit but said Corbett should have asked questions when the NCAA agreement was made.

"If he disapproved of the terms of the NCAA consent decree, or if he thought there was something illegal about them, why didn't he exercise his duty to act long before now?" the group said.

Paterno's family members said in a statement that they were encouraged by the lawsuit. Corbett "now realizes, as do many others, that there was an inexcusable rush to judgment," they said.

Corbett's lawsuit accuses the NCAA of cynically exploiting the Sandusky case, saying its real motives were to "gain leverage in the court of public opinion, boost the reputation and power of the NCAA's president" and "enhance the competitive position of certain NCAA members." It said the NCAA has not cited a rule that Penn State broke.

Corbett charged that the NCAA violated the Sherman Antitrust Act, which prohibits agreements that restrain interstate commerce. Legal experts called it an unusual case whose outcome is difficult to predict.

The NCAA has faced antitrust litigation before, with a mixed record of success. In 1984, the Supreme Court ruled against the NCAA's exclusive control over televised college football games. And in 1998, the Supreme Court let stand a ruling that said the NCAA's salary cap for some assistant coaches was unlawful price-fixing.

But federal courts have consistently rejected antitrust challenges to NCAA rules and enforcement actions designed to preserve competitive balance, academic integrity and amateurism in college athletics.

In this case, the courts might not be as sympathetic to the NCAA, said Matthew Mitten, director of the National Sports Law Institute at Marquette University Law School.

"It's difficult to justify the sanctions as necessary to protect the amateur nature of college sports, preserve competitive balance or maintain academic integrity," he said.

Joseph Bauer, an antitrust expert at the University of Notre Dame law school, said of Corbett's line of reasoning: "I don't think it's an easy claim for them to make, but it's certainly a viable claim."

Sandusky, 68, was convicted in June of sexually abusing 10 boys over a 15-year period, some of them on Penn State's campus. He is a serving a 30- to 60-year prison sentence.

Michael Boni, a lawyer for one of the victims, said he does not consider the lawsuit an affront. But he said he hopes Corbett takes a leading role in pushing for changes to state child-abuse laws.

"I really question who he's concerned about in this state," Boni said.

Michael Desmond, a businessman who appeared with Corbett at the news conference, said business at his five State College eating establishments was down about 10 percent during Penn State home game weekends this year.

"The governor's actions are going to be immensely popular with all Penn State alumni," Desmond said.

Corbett, a Republican, said his office did not coordinate its legal strategy with state Attorney General-elect Kathleen Kane, who is scheduled to be sworn in Jan. 15. Instead, the current attorney general, Linda Kelly, granted the governor authority to pursue the matter.

Kane, a Democrat, ran on a vow to investigate why it took prosecutors nearly three years to charge Sandusky. Corbett was attorney general when his office took over the case in 2009.

Kane had no comment on the lawsuit because she was not consulted about it by Corbett's office.

State and congressional lawmakers have objected to use of the NCAA fine to finance child-abuse prevention efforts in other states. Penn State has already made the first $12 million payment, and an NCAA task force is deciding how it should be spent.

 

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