NCAA Sanctions: "DP" for Penn Football, or...?

[J. J. in Phila]

Thanks JJ. I understand that, but was responding to the Governor's apparent disapproval of the 16% raise given to Erickson. The media is portraying it as if he is hurt at not having been consulted.

I think that more political. Nobody likes highly paid administrators,

And in fairness, he certainly took an active role in the meeting where the decision was made to fire Paterno.

I don't think he'll be making that mistake again.

I'm starting to believe that Governors are like football referees - the best ones are the ones you don't notice as they do their job.

Governors, who frankly have more important things do, are largely ceremonial on boards like this. They literally have all the rights of membership, but none of the obligations. Ideally, they never attend.

I was there during Thornburgh's term, and I don't recall one instance when he actually attended.

The problem is, the Trustees ceded much of their authority to the president. They might have done so even before Spanier. The BOT was largely ceremonial.

 

[Reader]

Governor to sue NCAA over Penn state sanctions

http://www.centurylink.net/news/rea...ass&action=2&lang=en&_LT=UNLC_NKNWU00L2_UNEWS

HARRISBURG, Pa. (AP) — Gov. Tom Corbett said Tuesday he plans to sue the NCAA in federal court over sanctions imposed against Penn State in the wake of the Jerry Sandusky child sexual abuse scandal.

The Republican governor scheduled a news conference for Wednesday on Penn State's campus in State College to announce the filing in U.S. District Court in Harrisburg.

The sanctions, agreed to by the university in July, included a $60 million fine that would be used nationally to finance child abuse prevention grants. State and federal lawmakers have raised objections to the money being spent outside Pennsylvania.

A message seeking comment on the expected lawsuit was left with the NCAA on Tuesday.

More at link..............

 

[Rlaub44]

Governor to sue NCAA over Penn state sanctions

http://www.centurylink.net/news/rea...ass&action=2&lang=en&_LT=UNLC_NKNWU00L2_UNEWS

HARRISBURG, Pa. (AP) — Gov. Tom Corbett said Tuesday he plans to sue the NCAA in federal court over sanctions imposed against Penn State in the wake of the Jerry Sandusky child sexual abuse scandal.

The Republican governor scheduled a news conference for Wednesday on Penn State's campus in State College to announce the filing in U.S. District Court in Harrisburg.

The sanctions, agreed to by the university in July, included a $60 million fine that would be used nationally to finance child abuse prevention grants. State and federal lawmakers have raised objections to the money being spent outside Pennsylvania.

A message seeking comment on the expected lawsuit was left with the NCAA on Tuesday.

More at link..............

When I posted several days ago about Corbett's statement regarding State Sen. Corman's proposed legislation, I thought something seemed odd about the strongly worded stance Corbett was taking; I just realized why.

His statement at that time "The NCAA, as an athletic trade association, overstepped its authority by forcing Penn State to endure harsh, unjustified and unprecedented punishment" sounded as if he had reverted to his old position as Attorney General announcing charges against someone.

I'm anxious for his press conference to find out what he believes he can accomplish with this grandstanding gesture.

 

[J. J. in Phila]

I think the accomplishment will be to try to persuade some Penn State fans to vote for him in 2014.

Seriously, they have a shot at claiming the fine is excessive, but I'd question if the state has standing.

 

[BetteDavisEyes]

Pennsylvania to sue NCAA over Penn State

Governor says sanctions unlawful, overreaching

Author: By Michael Martinez and Stephanie Gallman CNN

Published On: Jan 01 2013 08:33:04 PM EST Updated On: Jan 02 2013 11:43:01 AM EST

(CNN) -
The state of Pennsylvania will file a federal antitrust lawsuit against the NCAA, seeking to have a judge throw out all sanctions the association levied against Penn State University in the wake of the child sex abuse scandal involving former assistant football coach Jerry Sandusky, Pennsylvania Gov. Tom Corbett said Wednesday...

http://www.clickondetroit.com/news/...tate/-/1719418/17979114/-/mlcbla/-/index.html

 

[BigCat]

I think the accomplishment will be to try to persuade some Penn State fans to vote for him in 2014.

Seriously, they have a shot at claiming the fine is excessive, but I'd question if the state has standing.

Yep. That was my first thought: He's pandering to Penn State football fans. I don't think it will work, however. A large segment of the fans HATE the man.

 

[Rlaub44]

I just finished reading the full text of Corbett's filing; very interesting arguments. Still not sure if the State has standing, or if the suit has merit under the Sherman Act, but it appears thoroughly researched and should provide for good discussion.
http://www.scribd.com/doc/118731735/Corbett-vs-Ncaa-01022013

 

[J. J. in Phila]

I just finished reading the full text of Corbett's filing; very interesting arguments. Still not sure if the State has standing, or if the suit has merit under the Sherman Act, but it appears thoroughly researched and should provide for good discussion.
http://www.scribd.com/doc/118731735/Corbett-vs-Ncaa-01022013

I doubt if Corbett could show standing.

The suit claims that a whole bunch of people could be injured and the University will lose alumni donations. Those things did not happen this year. Merchandise with logo sales were down, but he'd have to show it was because the team can't play in bowl games.

The argument that the NCAA can't punish for this act is probably covered in the NCAA's parliamentary authority, Robert's Rules of Order Newly Revised, which states that conduct "tending to injure the good name of the organization, disturb it's well-being , or hampering it in its work" is grounds for disciplinary action, even if not specified in the bylaws (p. 644).

The due process requirement would work, if Erickson hadn't signed the consent decree.

 

[Rlaub44]

I doubt if Corbett could show standing.

The suit claims that a whole bunch of people could be injured and the University will lose alumni donations. Those things did not happen this year. Merchandise with logo sales were down, but he'd have to show it was because the team can't play in bowl games.

I'm not arguing the merit of the suit, but in fact, attendance at Penn State home games was down significantly this past year, which certainly translates to less income for the university, local businesses, etc. In addition, applications to attend Penn State are also down, albeit following a record high from the previous year. Without necessarily establishing causality, those are two documented ways one could argue that the NCAA's sanctions have created injury.

The argument that the NCAA can't punish for this act is probably covered in the NCAA's parliamentary authority, Robert's Rules of Order Newly Revised, which states that conduct "tending to injure the good name of the organization, disturb it's well-being , or hampering it in its work" is grounds for disciplinary action, even if not specified in the bylaws (p. 644).

I doubt even the NCAA could make a case that they themselves were harmed by Sandusky's actions or any coverup that followed. That reasoning has also never been offered by Emmert when explaining the NCAA's involvement.

The due process requirement would work, if Erickson hadn't signed the consent decree.

That is why some observers feel the University had a strong case if it had filed a lawsuit instead of Corbett:
http://blog.pennlive.com/davidjones/2013/01/mike_missanelli_thinks_penn_st.html#incart_river_default

 

[J. J. in Phila]

I'm not arguing the merit of the suit, but in fact, attendance at Penn State home games was down significantly this past year, which certainly translates to less income for the university, local businesses, etc. In addition, applications to attend Penn State are also down, albeit following a record high from the previous year. Without necessarily establishing causality, those are two documented ways one could argue that the NCAA's sanctions have created injury.

Not that much. Even thought the opener was down it was still relatively close. Corbett has to the "but for" claim, i.e., "but for the sanctions, sales would be better." It can be argued that Sandusky and the coverup, not sanctions, are causing the drop in attendance, or that it was the economy in general.

I doubt even the NCAA could make a case that they themselves were harmed by Sandusky's actions or any coverup that followed. That reasoning has also never been offered by Emmert when explaining the NCAA's involvement.

Again, NCAA involvement is not an issue; they should have a broad ability to judge the fitness of their members and to inflict penalties. There is case law that I have seen in Pennsylvania on it, that I have seen over the years.

That is why some observers feel the University had a strong case if it had filed a lawsuit instead of Corbett:
http://blog.pennlive.com/davidjones/2013/01/mike_missanelli_thinks_penn_st.html#incart_river_default

The problem is that the University is the party, and they did not choose to exercise their due process rights (and still have not). The thing is, if the consent decree "goes away," it is very likely that the NCAA could issue a death penalty, while preserving due process rights.

I'd also be troubled about the 10/13/98 meeting between various LE types and Ganter. There may have been more contact between LE and Penn State in 1998.

 

[Reader]

I agree with the comments from the article stating the Pennsylvania legislature has no jurisdiction in this matter and can't enforce any law passed. Corbett and Corman are just looking for votes. It is long past time for Corbett to say anything, that passed when the BOT, of which he is a member, agreed to pay the fine. PSU doesn't have to pay the fine, they can just withdraw from the NCAA.

Haven't read the filing by Corbett as yet so can't comment on that..but was wondering about Twindad's comment that the school could 'just withdraw from the NCAA'.

If Corbett's suit is rejected or fails to win in court, is it still possible for them to drop out of the NCAA and would this remove all of the penalties and the fine? IOW, would the dropping out be retroactive to prior to the NCAA penalty?

How could they do this after the school already accepted the penalties with the approval of the board?

 

[Tipstaff]

With all the rumors about O'Brien being courted by professional football perhaps Corbett and other Penn State big wigs are wondering if O'Brien leaves will they get another coach of his quality (???) to take on the coaching job with the loss of scholarships, no bowl games et

Are the powers that be concerned that coaching at Penn State over the next several years will lead to a revolving door of coaching staff? Thus a Hail Mary pass by Corbett?

 

[J. J. in Phila]

If Corbett's suit is rejected or fails to win in court, is it still possible for them to drop out of the NCAA and would this remove all of the penalties and the fine? IOW, would the dropping out be retroactive to prior to the NCAA penalty?

How could they do this after the school already accepted the penalties with the approval of the board?

Respectfully snipped.

PSU could, in effect, resign from the NCAA, however, that would not remove the fine. They could only "conditionally resign retroactively" with the NCAA approval.

In either case, the NCAA could decline to "accept the resignation." The NCAA is a group of member schools that have entered into a contract; pulling out, without the consent of the NCAA as an entity, would be a violation of that contract.

Also, keep in mind that if the suit would be successful, nothing would prevent the NCAA from using their disciplinary procedures from imposing the death penalty.

 

[Twindad]

Which is why it was readily accepted.
http://espn.go.com/espn/otl/story/_...ickson-said-school-faced-4-year-death-penalty

 

[Rlaub44]

I'd also be troubled about the 10/13/98 meeting between various LE types and Ganter. There may have been more contact between LE and Penn State in 1998.

I'm still not convinced there is any connection between this clandestine meeting and the Sandusky problem; but whatever additional contact there might have been should come out in the perjury trials, which is another reason the criminal trials should have been allowed to occur before the full NCAA sanctions, in my opinion.

 

[Rlaub44]

Which is why it was readily accepted.
http://espn.go.com/espn/otl/story/_...ickson-said-school-faced-4-year-death-penalty

Depends on who you ask.

Ray said the NCAA's Executive Committee discussed pulling the plug on the Penn State football program after it received NCAA President Mark Emmert's initial proposed sanctions.
He said the death penalty was quickly taken off the table.
"For a lot of people it's just too blunt of an instrument," Ray said. "No current players, staff or people connected with the football program" were part of the Sandusky cover-up.
http://www.bizjournals.com/portland/news/2012/07/23/ray-penn-state-death-penalty.html?page=all

Ray via email: Also, I chaired those meetings and I know that there was no discussion of threats if the consent decree was not accepted.
http://www.statecollege.com/news/local-news/six-steps-to-the-truth-with-dr-ed-ray-1127859/

Erickson and Emmert:
Penn State faced a multiyear shutdown of its football program had it not agreed with the sanctions imposed by the NCAA earlier this week, university President Rodney Erickson told ESPN.
The football program at Penn State faced a four-year "death penalty," a complete cessation of football activities, Erickson said, according to the ESPN report, as well as fines well in excess of the $60 million levied.
The four-year death penalty option was confirmed by NCAA President Mark Emmert, who said in a separate interview with ESPN that what the network termed "a core group of NCAA school presidents" had agreed on the unprecedented sanctions.
http://news.blogs.cnn.com/2012/07/26/report-penn-state-faced-4-year-death-penalty/

And finally:
Emmert and Penn State President Rodney Erickson told ESPN's "Outside the Lines" on Wednesday that the majority of school presidents favored suspending the university's football program for four years.
Instead of either accepting that unprecedented punishment or forcing the NCAA to launch a formal investigation by refusing to accept sanctions, Erickson entered covert discussions with the NCAA in hopes of reaching a compromise that did not include the death penalty. The result was a defacto plea bargain in the form of the consent agreement Penn State leaders signed. In return for the NCAA taking the "death penalty" out of the punishment, Erickson agreed not to appeal penalties that included a four-year bowl ban, the nullification of 112 wins, massive scholarship reductions and a $60 million fine.
http://sports.yahoo.com/blogs/ncaaf...r-years-no-football-had-231629377--ncaaf.html

 

[Reader]

Comments about Corbett's suit on the PSARS twitter site after the press conference:

https://twitter.com/ps4rs

Altoona Mirror‏@AltoonaMirrorPA
Student leaders back Corbett's decision http://bit.ly/VCUpLc
Retweeted by PS4RS

Brian Dawson‏@DawsonPSU10
This PA v. NCAA lawsuit would be a 1000x easier if they challenged the validity of the Freeh Report from which the sanctions are based on
Retweeted by PS4RS

Onward State‏@OnwardState
Tom Corbett on CNN: I initially supported the sanctions, but we realized they didn't have the authority to do what they did."
Retweeted by PS4RS

JanPS4RS‏@PS4RS
V4 was "upset the sanctions were so broad that they impacted people who had absolutely nothing to do with the abuse" http://ow.ly/guxxf

Michael McCann‏@McCannSportsLaw
My analysis of Pennsylvania's new lawsuit against the NCAA + how the #NCAA can defend against it: http://sportsillustrated.cnn.com/co...130102/penn-state-lawsuit-analysis/index.html … #PennState #Sandusky
Retweeted by PS4RS

StateCollege.com‏@StateCollegecom
NCAA Calls Corbett's Lawsuit 'An Affront to the Victims': http://ow.ly/gufyL
Retweeted by PS4RS

JanEugene Bodden‏@Swoll_21
#NCAA pulling the victims card again?....so bowl bans and elimination of scholarships is in the best interest of the victims #yeahok

PS4RS‏@PS4RS
Our statement regarding the State of PA lawsuit against NCAA: http://ow.ly/gueIe

Holly Swanson‏@StateCollegeMom
But he didn't file earlier so as to not interrupt the football season? Cringeworthy.
Retweeted by PS4RS

Zack Timko‏@ZTimko793
@TheVoice_Speaks because she brought up a good point? Why are PA people who let Sandusky take in foster kids not being held accountable?
Retweeted by PS4RS

Nicole Benedetti‏@Niki1352
Every Penn Stater knew the sanctions were unlawful & over the top. Knew the Freeh report was flawed. Where was Corbett then?
Retweeted by PS4RS

JanSteve Newman‏@MAHandTN
In a nutshell, Corbett is the arsonist who wants credit for putting out the fire.
Retweeted by PS4RS

Pete Thamel ‏@SIPeteThamel
So what do we think, tweeps? Does Corbett's case have merit or is he pandering for voters with an election coming in two years? Discuss...
Retweeted by PS4RS

JanWPSU‏@WPSU
Paterno family issues statement on Corbett suit: http://www.centredaily.com/2013/01/02/3452333/paterno-family-issues-statement.html …
Retweeted by PS4RS

Evan Ponter‏@evanponter
Interesting that a lame duck Attorney General has granted #Corbett's lawsuit power, yet his office never consulted with Kathleen Kane. #PSU
Retweeted by PS4RS

Eric Feinstein‏@ericjfeinstein
This is bizarre. Corbett taking a big step challenging the NCAA, after he supported sanctions in July.
Retweeted by PS4RS

Audrey Snyder‏@audsnyder4
Using the "he didn't want to interfere with the football season" excuse doesn't help the culture image of #PSU.
Retweeted by PS4RS

Dan Wetzel‏@DanWetzel
Pennsylvania v NCAA could be interesting, but this is some serious political grandstanding here
Retweeted by PS4RS

JanBrian Barcaro‏@BrianBarcaro
Corbett decided to sue the @NCAA after the GOP AG got thumped in the recent elections. #prelude
Retweeted by PS4RS

Charles Thompson‏@ChasThompson1
General Counsel Jim Schultz says case hinges on idea that NCAA, as a trade association, did not follow its own rules or process. #pennstate
Retweeted by PS4RS

Chris Otto‏@YDRChrisOtto
Corbett: The Freeh Report is incomplete and it was NOT adopted by PSU Board of Trustees. BOT not consulted.
Retweeted by PS4RS

JanDrew Balis‏@drewBbalis
Corbett says he told BOT chair and Rodney Erickson over the weekend about suit, but they were not invited to be a part of it.
Retweeted by PS4RS

Casey McDermott‏@caseymcdermott
Corbett on July 23: "Part of that corrective process is to accept the serious penalties imposed today by the NCAA..." h/t @houseofbuddy
Retweeted by PS4RS

JoePa's Doghouse‏@RowlffDogg
Somewhere, Rodney Erickson is frantically scribbling an apology note.
Retweeted by PS4RS

Anna Orso‏@annaorsoTDC
RT @caseymcdermott: Corbett's full comments from July 23, 2012, can be found here: http://bit.ly/JnbeF4
Retweeted by PSARS

Mark Wogenrich‏@MarkWogenrich
Statement from Paterno family on Pennsylvania's suit against NCAA. http://bit.ly/YSkGqb
Retweeted by PSARS

JanAnna Orso‏@annaorsoTDC
In Paterno family statement, they say their own review of the Freeh Report is nearing completion.
Retweeted by PS4RS

JanAmy Z. Quinn‏@AmyZQuinn
Welcome to your Corbett re-election campaign, Penn Staters.
Retweeted by PS4RS

JanPasik‏@Pasik1982
while i love but corbett is doing, this is such a political move. Last summer he was in full agreement with the sanctions. #pennstate
Retweeted by PS4RS

 

[Reader]

Some more PSARS twitter comments from today:

PS4RS‏@PS4RS
ICYMI: Have something you want to ask @GovernorCorbett? Submit your question to @witfnews: http://ow.ly/gw4aM

Matt Moore‏@MattMooreAP
Did the #NCAA really "pile on" #PennState in the aftermath of the Jerry #Sandusky scandal? @JimLitke examines the situ… http://say.ly/vaH4ThJ
Retweeted by PS4RS

PennLive.com‏@pennlive
NCAA lawsuit: Potential GOP challenger to @GovernorCorbett in 2014 questions lawsuit's timing http://ow.ly/gvZmK
Retweeted by PS4RS

PS4RS‏@PS4RS
#PennState Trustee Lubrano talks about PA lawsuit against NCAA: http://ow.ly/gvaRN

Megan Lello‏@MeganLello
PA Gov. Corbett will take questions on witf's Radio #SmartTalk at 9a tomorrow. What do you want to ask him? http://tinyurl.com/cfc2eok @witfnews
Retweeted by PS4RS

Deadspin‏@Deadspin
Everything you need to know about Pennsylvania's lawsuit against the NCAA (and why you should support it): http://deadsp.in/n9lsxuD
Retweeted by PS4RS

 

[Reader]

Sections 4 and 5 of Corbett's suit:

https://www.documentcloud.org/documents/550546-corbett.html

4.The NCAA is a trade association of competitors, formed for the
purpose of promoting intercollegiate athletic competition, in part through self regulating its members to ensure fair competition on the playing field and the protection of participating student-athletes. While the antitrust laws permit such an association to impose and enforce rules or standards to promote certain pro competitive purposes, such rules must be reasonably related to those purposes, and must be enforced through procedures designed to prevent their arbitrary application.

5.The NCAA's sanctions against Penn State fail to meet these
requirements. The NCAA has punished Penn State without citing a single concrete NCAA rule that Penn State has broken, for conduct that in no way compromised the NCAA's mission of fair competition, and with a complete disregard for the NCAA's own enforcement procedures. In so doing, the NCAA and its members have forced Penn State to forfeit the valuable competitive advantages of full participation in the NCAA.


If the NCAA, as they stated, based their decision on the Freeh Report's findings, it seems to me they did meet the requirement cited in #4. One of the principle findings in Freeh was that the cover up of the abuse by the administration and football personnel was because of their fear of negative publicity, which they thought would hurt PSU's reputation and ablitity to compete. To me, this violated the mission of 'fair competition'.

 

[Rlaub44]

If the NCAA, as they stated, based their decision on the Freeh Report's findings, it seems to me they did meet the requirement cited in #4. One of the principle findings in Freeh was that the cover up of the abuse by the administration and football personnel was because of their fear of negative publicity, which they thought would hurt PSU's reputation and ablitity to compete. To me, this violated the mission of 'fair competition'.

Respectfully snipped & bolded by me:

And that is one of the grave failings of the Freeh report. His team drew the conclusion that McQueary's report was not forwarded to the authorities out of the concern of negative publicity. But Freeh never spoke to Curley, Schultz, McQueary or Paterno, and Spanier didn't tell the investigators that, so what turns this from speculation into proven facts to support the punishments handed down?

In the emails between the administrators, the only reason they discussed was the desire to confront Sandusky before involving other agencies, in a ridiculous attempt to handle it "humane"ly. But this first-person evidence was dismissed as a theory in favor of the Commission's pet motive; so it was written and so it became accepted.

I doubt that we will ever get the full truth out of any of the men facing trial for the coverup, but that doesn't mean that Freeh's suggestion is automatically true either.

And the NCAA admitted in the consent decree that "The sexual abuse of children on a university campus by a former university official - and even the active concealment of that abuse - while despicable, ordinarily would not be actionable by the NCAA." So the Freeh Commission's "reasonable conclusion" became the "culture" of "fear of or deference to the omnipotent football program" that the NCAA used to excuse their involvement in a matter that would have normally not have been an actionable offense.

All that said, there is no doubt that this lawsuit is a thinly-veiled ploy by Corbett to gain support from Penn State alums, and also to deflect attention from his slow-play as AG before Kathleen Kane, who ran on a platform of investigating Corbett's handling of the Sandusky case, is sworn in and begins her term.