Pennsylvania Governor Tom Corbett Sues the NCAA

By Jason Priestas on January 2, 2013 at 1:23p

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yrro's picture

It is kind of an... interesting... assumption of power for the NCAA to essentially fine Pennylvania taxpayers $60 million.

buckeye_baker's picture

But PSU had agreed to the fine? I guess I'm kind of confused by it all. So Penn State didn't have the right/power to agree to to it?

"I can accept failure, but I can't accept not trying." -Woody Hayes

NC_Buckeye's picture

So is it PA's position that the NCAA only has authority to fine private institutions like USC? (Which they did in the Bush sanctions BTW.) Or that the NCAA can't fine any of it's members period?
I'm not going to read the whole suit, but the wording of the first couple of pages just dredges up all of the arguments that the cult has been spewing for the last nine months: Penn State football generates revenue for the community. The NCAA sanctions are damaging the economy of PA. That's a valid point that what... like 30 other schools could have claimed as well (including us).
I think most legal scholars have been saying since this lawsuit idea was proposed nine months ago that it won't hold water. It won't because the NCAA is a voluntary membership organization. If PSU didn't like the sanctions, they could withdrawal from the NCAA.
The real argument that they could make is that the NCAA is acting like a monopoly, hence the suit's reference to the Clayton Act and Sherman Act. So effectively PA will be arguing to dismantle the NCAA. Hmmm... you know what I find ironic. Penn Staters have been on their high horse for nigh onto 50 years preaching about them being one of the only schools the NCAA has never penalized. And as soon as the NCAA spotlight focuses on them, they want to dismantle the organization.
In the words of Graham Spanier, "We do things the right way at Penn State." Hear, hear. <sarcasm>
Incidentally, word over at BSD is that a similar suit against the Big Ten for the fine they imposed will be coming along in short order. 

NW Buckeye's picture

Hopefully, this puts the death penalty back on the table.  PSU is doing their best to say they have nothing to do with this, but they are a state run institution.  When they bargained out of a potential death penalty they did it with state employees and it was eventually sanctioned by the board of trustees, a state board.  The leniency of the sanctions was based upon no appeal/legal action against the NCAA.  This would appear to be in direct violation against the agreement in place. 
This is kind of a double edged sword.  While the NCAA is, at best, an organization that seems to arbitrarily enforce their policies/rules, they are at least an organization that attempts to bring some sort of level playing field to the business of college sports.  Their arbitrary enforcement at times is frustrating to say the least.  But, a college sports world devoid of a strong governing arm would simply open the doors for all kinds of things (if you thought the Cam Newton debacle was bizarre, without some sort of a watch dog organization that would simply be an all too commonplace occurrence).  I have never been a strong proponent of the NCAA because of their shenanigans, but I shudder to think what my run amok if they were not in existence. 
Don't know how everyone feels about PSU, but the actions (or inactions) of the culture that created the worst scandal ever in college athletics needed to be dealt with.  I know many thought the NCAA overstepped their bounds, and many more thought they did not go far enough.  My own opinion is that PSU got off easy.  This suit only continues this obscene scandal, and once again affirms that maybe stricter sanctions were necessary. 

lcrumley89's picture

The fact that Pennsylvania's Governor is on Penn States Board of Trustees and was the Attorney General when the Scandal came out over three years ago (and didn't pursue a criminal case) really makes me believe that this is a violation of the school's/NCAA agreement. That being said I don't agree with the current students and athletes being severely punished for the actions of an administration. This lawsuit shows that there is still the attitude among the school's leaders that allowed this situation to occur. Somehow that attitude needs to change but I don't know if the Death Penalty from a third party organization will be able to accomplish that, I am still waiting to see if the Department of Education/Federal Courts step in and punish Penn State.

“There are some people addicted to alcohol, some people are addicted to gambling,” Luginbill said. “Urban Meyer is addicted to football, and he’s addicted to winning.”

sawesome's picture

Don't know how everyone feels about PSU, but the actions (or inactions) of the culture that created the worst scandal ever in college athletics needed to be dealt with.  I know many thought the NCAA overstepped their bounds, and many more thought they did not go far enough.  My own opinion is that PSU got off easy.  This suit only continues this obscene scandal, and once again affirms that maybe stricter sanctions were necessary.

Paterno is dead, Sandusky in prison, McQueary unemployed, one witness is witless with Alzheimers, the administrative officials who facilitated the abuse are in prison (or going to be) for the rest of their lives, and the university is going to deal with litigation for awhile.  Those who are directly responsible are either out of our reach or suffering the consequences for their actions.
Why the NCAA feels the need to punish where God and the State have first dibs, I don't know.  This is essentially a criminal matter, not an athletic one.  That it happened in the locker room and not the classroom is an accident of circumstances, not really a justification for NCAA sanctions.  There's no competitive balance issue to be addressed here (like there was at SMU).
I do think they're within their bounds to levy fines provided that the bylaws stipulate such for member schools besmirching the organization; obviously PSU signed on the dotted line, like everyone else.  And truly some good can come from the $60M.  Presumably we'll see some efforts at raising awareness and preventing child abuse.  So I don't really have a problem with the fine, although I have no idea where they got the number from (was it based on revenue Sandusky may have accounted for?)  Stripping the victories also doesn't really bother me, although I find their timing a little arbitrary.
I do think they're overstepping—or at least overcompensating—to hand over a bowl ban and the scholarship reductions.  This punishes those who aren't actually responsible, while the major players are all dead, unemployed, or in prison (or about to be).
The best argument I've heard for the sanctions is that PSU has a culture that needs to change.  I guess we could say that hero worship fosters an environment in which child abuse can go unreported or be swept under the rug.  I agree with this, but I don't see how the NCAA sanctions will fix that problem; in fact, they may only make it worse.  Whether fans feel any personal moral culpability (would that they followed Chesterton in this regard!) remains to be seen, but I doubt that punitive sanctions will fix what the revelations of decades of abuse and misplaced trust couldn't.

Jack Fu's picture

Paterno is dead, Sandusky in prison, McQueary unemployed, one witness is witless with Alzheimers, the administrative officials who facilitated the abuse are in prison (or going to be) for the rest of their lives, and the university is going to deal with litigation for awhile.  Those who are directly responsible are either out of our reach or suffering the consequences for their actions.

I agree. The NCAA handed down a punishment to the football program, and by extension the university, for criminal acts, which are already covered by the applicable criminal codes and outside the purview of the NCAA. The people responsible for the rapes and cover-ups will be prosecuted and/or sued in civil court. Punishing the university itself was outside the scope of the NCAA's authority, because no NCAA rules were broken.

Why the NCAA feels the need to punish where God and the State have first dibs, I don't know.

The NCAA punished the university for the PR. It allowed them to grandstand, to take a broadside at an easy target that no one would feel sorry for and pat themselves on the back.

sawesome's picture

I'm not aware that the NCAA specifically mentioned PSU's PR in their decision, and it wasn't a major factor in any of the news I've read (see, e.g., this one).  As cited (number one or two hit on Google for "Why did the NCAA punish PSU"), the real issue was the culture at Penn State.
I'm not an expert on the rules by any stretch, but my impression has always been that the NCAA exists in the main for two reasons:  (1) to protect the "student" in student-athlete and (2) to protect competitive balance by enforcing rules.  Neither of these really address culture that facilitates child abuse.
I'm assuming the NCAA also has rules about what happens when you make the institution look bad, and that's where the additional penalties come from.  But of the ones levied, I don't see how they're appropriate (outside of the fine and stripping victories).  The scholarship reductions and bowl ban are at heart designed to correct competitive imbalance, not child abuse or hero worship.

Jack Fu's picture

I meant the NCAA did it for its own PR, so it could bomb an easy target that almost no one would feel sorry for and then stand on a podium and look like they're actually doing something.

sawesome's picture

<hangs head in shame>
Sorry about misinterpreting; I will adjust my reading filter.  Carry on.

GoBucks713's picture

Maybe this will lead to the reform of the NCAA.......

-The Aristocrats!

spqr2008's picture

While I agree that the NCAA didn't go far enough, it is far past time that state governments take a more active role in overseeing the contracts which their institutions negotiate with a huge, very profitable non profit organization which controls the flow of a large source of revenue and prestige to those institutions.  This isn't the best case for that to happen, but if it has to start, let it start here, where, worst case, Penn State gets Death Penaltied.

RBuck's picture

When the NCAA levied the fine against PSU they actually levied it against the people of Pennsylvania. I hope the Gov wins that part of the lawsuit but they let the other sanctions stand.

Long live the southend.

cajunbuckeye's picture

I thought the intent of the lawsuit was to keep the $60,000,000.00 in state for victim services and education. That's not what I'm seeing now.

An angry fan...rooting for an angry team...led by angry coaches

lcrumley89's picture

I thought the same thing at first which I can understand and even support that argument but it will be interesting to see if this lawsuit even makes it to court.

“There are some people addicted to alcohol, some people are addicted to gambling,” Luginbill said. “Urban Meyer is addicted to football, and he’s addicted to winning.”

gosolow2000's picture

I thought the same thing, maybe this is what they hope to get out of the lawsuit.

dsbgobux's picture

Our wonderful governor here in PA is claiming that the NCAA is hurting the citizens of PA with the sanctions. What this moron does not get is that his inactivity as the DA permitted Sandusky to keep on doing his thing. Corbett also doesn't understand that his frivolous lawsuit will cost the citizens money. Why? He is using a private law firm out of Philadelphia to fight the NCAA.
The state government here is so ridiculous that I almost would rather live in Michigan!!!!

Buckeye in PA purgatory

Lee in Altoona's picture

Amen, Purgatory, from a fellow Pennsylvanian Buckeye. This is a blatant political ploy by an unpopular governor to try to win some votes. His taking it away from the just-elected Democratic Attorney General before she was sworn in is telling.
How could this suit be allowed to succeed, though? If it did, any state containing an institution that drew NCAA sanctions, no matter how justified, could sue on behalf of the innocent citizens and businesses that were impacted. The NCAA would become powerless.
More to the point, though, who in Centre County was negatively impacted? Penn State still enjoyed the fifth highest attendance in college football this year. Sure, attendance at Beaver Stadium sagged, but it did just about everywhere else too. It's the economy, stupid.

penult's picture

Is Corbett up for election soon? Or just preparing early for the next one? Seems like a PR move for him.

Lee in Altoona's picture

2014. Soon enough.

smith5568's picture

Haven't read yet, but plan to (sadly, as a legal nerd who loved Antitrust in law school, I am extremely excited to sit down and read it). My initial reaction is this doesn't hold much water under either the Sherman or Clayton Acts, being that the U.S. Supreme Court has already ruled that the NCAA is not a monopoly and does not engange in monopolistic activity. 

gumtape's picture

Please post your comments when you do. I would be interested to hear them. This seems to me to be taking a horrible situation and bringing more attention to it. I can't think of any situtation where the NCAA reduced a sanction against a school.

High and tight boo boo

Joshy614's picture

Fuk Penn State.

TheHostileDwarf's picture

I'm sure this will be fleshed out, but for the life of me, I can't see an argument that actually holds any water that the Commonwealth of Pennsylvania has standing in such a lawsuit. We'll see.

GrayDay's picture

The state's legal standing in this is curious.  If PSU is effectively independent from the state, then the latter would seem (to a layman like me)  to be legally irrelevant in this. On the other hand, the state seems to be claiming that state $ are effectively being misappropriated via a form of extortion of a state instution.  If its really the state's money, because PSU's money is state money, cannot the state then direct PSU to decline the agreement with the NCAA? 

NC_Buckeye's picture

Wetzel had an article yesterday in which he addressed some of the ways in which the case falls apart.

Where the case seems to go sideways is the argument of who exactly is damaged. Challenging the core power of the NCAA is fine, but that wouldn't seem to be a priority of a sitting governor.

Penn State was not hit with the so-called “death penalty” so it continued, and will continue, to field a team. The postseason ban doesn't affect business directly in Pennsylvania since the Big Ten championship game and any bowl game are played outside the state. Sure Penn State is unlike to win as many games in the future due to the scholarship reductions, but that is neither certain (anything can happen) nor a particularly moving argument. It could have lost anyway. Is it Penn State's birthright to win 10 or more games each season?

While scholarship sanctions will limit 10 recruits a year from receiving a free education, that seems a rather small effected group and one that the school could easily remedy by providing ten additional academic scholarships to regular students at schools the football program routinely recruits.

Likewise, the argument over whether Penn State's $60 million fine should be doled out to youth groups in the state rather than nationally, as the NCAA wants, is reasonable, but again, not seemingly significant enough to call for as a federal lawsuit that could rack up millions in legal fees itself and take years to resolve.

Corbett's position is that businesses in State College were economically harmed by the cut in attendance for Penn State home games this season and there is a fear that will continue if there is a continued drop-off in victories.

“Look, this is big business,” James Schultz, the governor's legal counsel said. “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.”

Again, there is still a football program at Penn State. There was no reported elimination of jobs (assistant coaches, support staff, trainers, etc.) at the university due to the sanctions, so that claim seems unsubstantiated.

Arguing that the NCAA is responsible for a cut in attendance, when it's the choice of individuals to attend or not, is a reach. Are Penn State fans solely motivated by wins and losses? The school fielded a successful and highly likeable team under coach Bill O'Brien this past season.

And who is to say some fans aren't staying away over disgust with how the university originally handled the Sandusky scandal? Not to mention, is there proof that the lack of attendance is from fans that would otherwise buy meals at local establishments and not bring their own tailgate?

Then there is the counter claim that one reason Penn State was so popular in the past was the perception that it ran the most ethical program in the country, a point of pride for fans.

That would've been significantly damaged in 2001 had the school subjected itself to a full and public police investigation into Sandusky's actions inside its facilities, particularly after a previous police investigation into Sandusky showering with a boy came in 1998.

At the time of the 2001 allegation, Penn State was coming off a 5-7 season (and would win just five games again the following year) and led by a then 75-year-old Paterno who was hearing growing cries to retire because he was too old to manage the program. Having the charges go public – the 1998 police investigation was buried by a school vice president – that he was allowing an old coach who was already under suspicion of inappropriate behavior with kids continued full access to the facilities could have been ruinous.

Back to square one IMO. This was an institutional cover-up that originated within the football program. I'm still good with the actions taken by the NCAA.
I hope this obtuse ploy to undo the sanctions gets squashed pretty quickly.

NC_Buckeye's picture

Also this from ESPN's legal analyst:

In a federal lawsuit filed on Monday, Pennsylvania Gov. Tom Corbett attacks the NCAA and the sanctions applied to Penn State as a result of the Jerry Sandusky scandal.

Corbett and his lawyers claim the NCAA violated the nation's antitrust laws when the NCAA insisted that the university agree to severe sanctions. The lawsuit demands that the NCAA's sanctions be lifted and raises questions about the authority of the NCAA to govern college sports and on other legal issues. Here are some of the questions and their answers:

Q: Will Gov. Corbett succeed in his attempt to undo what the NCAA has done to Penn State?

A: No. There are two basic legal rules that are likely to result in an early dismissal of Corbett's lawsuit. The words that describe these legal rules are "standing" and "waiver." To succeed in any civil lawsuit, the person filing the lawsuit must have standing to sue, a stake in the outcome of the dispute. If, for example, a former Penn State player filed suit over the NCAA's elimination of Penn State victories and championships, he would have standing to challenge the NCAA, because he played in the games. Corbett has no identifiable interest or standing in the welfare of the Penn State football program. His lawyers, clearly worried about the standing question, attempt to establish standing for Corbett with multiple mentions of supposed damage to the "state revenue base," but it won't work. Corbett is the wrong guy to file this lawsuit.

"Waiver" describes an action that has already been agreed to and accepted -- the NCAA sanctions that Corbett attacks. The university agreed to the sanctions in a "consent order" last summer. If Corbett ever had any chance to attack the sanctions, it disappeared with the university's agreement and its waiver of the right to question the sanctions.

Q: Could Corbett's lawsuit benefit from his role as governor, given the case will at least initially be heard in Pennsylvania?

A: If Corbett and his lawyers manage to find a judge who will lean in the direction of Penn State, they may succeed in the early litigation stages as the beneficiaries of a home-court advantage. Even a federal judge with lifetime tenure can be subject to local pressures. But even this possibility looks remote. The case is currently assigned to U.S. District Judge Yvette Kane in Harrisburg. Kane, 59, is a graduate of Nichols State University and Tulane Law School and has no immediately apparent connections to Penn State.

Q: What is Corbett's legal theory?

A: The 43 pages of Corbett's lawsuit are filled with political rhetoric and almost devoid of anything resembling jurisprudence. The only apparent legal theory is based on antitrust laws that govern monopolies that use their powers to fix prices or to manipulate markets. There is, of course, no doubt that the NCAA is a monopoly. It has the power of a cartel and is clearly subject to antitrust scrutiny.

Corbett asserts that the NCAA is using its monopoly powers to restrain one competitor (Penn State) from competing with other member schools, labeling the sanctions a "clumsy attempt to harm a competitive member school." The problem for Corbett is that the NCAA in its punishment of Penn State is doing exactly what its members created it to do. It is not conspiring to manipulate any market. It is, instead, performing the regulatory function that the Division I schools want it to perform.

Q: What is the next step in the lawsuit?

A: Corbett wants the court in Harrisburg to issue an injunction that would prevent the NCAA from enforcing the Penn State sanctions. Even if Corbett and his lawyers avoid an early dismissal, they face serious obstacles. Injunctions in antitrust cases are rare. To obtain the injunction -- the most drastic relief a judge can give in a civil case -- the governor must show irreparable harm and a probability that he will succeed in any appeals.

The NCAA, in its resistance to the request for the injunction, will argue that the sanctions are a reasonable exercise of NCAA powers. It's an argument that usually succeeds in stopping an injunction. In antitrust litigation, the question of whether something is reasonable is determined by a jury. If the case goes to a jury trial, there would be months, even a year or two, of exchanges of documents and pretrial interrogations of witnesses. By the time the trial was concluded and appeals were decided, the Penn State football program almost certainly would have completed its compliance with the four years of sanctions.


Jim from Scranton's picture

This was a criminal matter that had nothing to do with college football. Sandusky was tried and convicted in a PA court and there will be new trials for 3 other people involved in the cover up. They will get their day in a Pennsylvania court and if convicted they could receive jail sentences also. The talk has been that they were protecting the football program and that’s why the NCAA got involved when in reality they were protecting Sandusky and themselves. There were no NCAA rules broken by Penn State. The story was that the football program ruled the university and that the school needed to be knocked down for allowing this. Football had nothing to do with this. How would it have hurt the football program if they had turned Sandusky in? If anything they would be praised for turning in their friend. They were protecting Sandusky and they were caught and the court will decide their guilt. The NCAA had no right to get involved in this criminal matter and the Governor has every right to file a federal lawsuit. Your Ohio State team would be playing for the national championship if you had enough balls to fight the NCAA bowl sanction for 2012. They had no right to impose it after Ohio State already vacated all the wins in the 2010 season. The big 10 has been portrayed as a weak conference by most sports analysts and once again because of their bowl record we will have to endure this criticism. But a win by OSU in the title game would have gone a long way to shut the critics up.       

Jim from Scranton