NCAA seeks dismissal of Gov. Corbett's antitrust suit relating to Penn State sanctions following Sandusky scandal

By Jon Campisi | Feb 11, 2013

The National Collegiate Athletic Association is asking a federal judge to dismiss an

antitrust lawsuit that was filed against the organization by Pennsylvania Gov. Tom Corbett, litigation that arose out of sanctions levied on Penn State University in the wake of the Jerry Sandusky child sex-abuse scandal.

Corbett, the state’s former attorney general, filed his complaint against the NCAA in early January over allegations that the fines and other punishments lodged against Penn State following the Sandusky scandal violate antitrust laws, which have to do with anti-competitiveness.

On Feb. 7, attorneys for the NCAA filed a motion to dismiss the complaint, which had been filed at the U.S. District Court in Harrisburg, arguing that the lawsuit is an “inappropriate attempt to drag the federal courts into an intra-state political dispute.”

“The remedial measures that Penn State agreed to were controversial, and have elicited strong feelings on all sides,” reads the memorandum in support of the dismissal motion. “Some think they are too harsh, and some think they are too lenient. But none of those feelings have anything to do with antitrust laws.”

The memorandum and motion was signed by lawyer Thomas W. Scott, of the Harrisburg firm Killian & Gephart, which is representing the NCAA.

Sandusky, the former defensive coordinator for the Penn State Nittany Lions football team, was convicted on 45 counts of child sex-abuse this past summer and subsequently sentenced to between 30 and 60 years in state prison.

His attorneys moved for an overturned conviction and a new trial, but the judge overseeing the case denied the requests.

Sandusky’s attorneys have signaled they may appeal to the state Superior Court.

Meanwhile, Gov. Corbett contended that a consent decree Penn State entered into with the NCAA following the child molestation scandal was illegal, and that the punishments, which included a $60 million fine and the throwing out of numerous football wins, threatened to have a “devastating, long-lasting and irreparable effect on the state, its citizens and its economy.”

Corbett went on to call the NCAA’s sanctions “unprecedented, overreaching and unlawful,” and claimed that the only conclusion for the sanctions was that the NCAA would benefit from the penalties.

“These sanctions are an attack on past, present and future students of Penn State, the citizens of our commonwealth and our economy,” Corbett had stated during a news conference announcing the litigation. “As governor of this commonwealth, I cannot and will not stand by and let it happen without a fight.”

In their motion to dismiss, the NCAA’s attorneys wrote that Pennsylvania law gives Penn State the authority to manage its own athletics program, join associations like the NCAA and agree to contracts.

Corbett himself is a member of the very same Penn State governing board that voted to ratify the consent decree with the NCAA, the filing states.

“In this case, the Governor seeks, under the guise of antitrust law, to overrule his fellow Trustees and usurp the discretion that the Legislature delegated to PSU,” the motion reads, referring to Penn State University.

The filing states that the motion should be dismissed for a variety of reasons, including that under Third Circuit Court of Appeals precedent, the NCAA’s regulation of college sports is subject to antirust scrutiny only if it directly regulates economic activity, such as television contracts or the salary of coaches.

“Enforcement of rules relating to program integrity and eligibility for competition is not regulation of commerce, and is outside the scope of the Sherman Act,” the dismissal motion states. “Indirect economic effects on businesses resulting from the NCAA imposing major sanctions are not uncommon, and do not alter the analysis.”

In his lawsuit, Corbett argues that the sanctions would harm the entire State College, Pa. region, which relies on revenue from Nittany Lions football games.

One example of the economic harm offered by Corbett is the potential for restaurant servers and bartenders to suffer earnings losses.

The defense motion went on to state that even if antitrust laws were applicable in this case, the complaint fails to state a claim because the ethical standards enforced by the NCAA are part of what makes college athletics “unique and distinctive.”

“Plaintiff contends that these sanctions exceed the NCAA’s appropriate role as the regulator of college athletics, and that Sandusky’s conduct is merely a criminal matter,” the defense memorandum states. “But the Consent Decree is not about Jerry Sandusky; it is addressed to the behavior of senior University officials, including the former head football coach, who learned of evidence of Sandusky’s crimes and chose not to act – for reasons that, as Penn State has acknowledged, included an inappropriate culture of reverence for the football program and a desire to protect it.

“The NCAA and its member institutions are entitled to conclude that they do not want to condone a culture that places athletics above reporting crimes against children,” the motion continued. “Plaintiff’s suggestion that these sanctions have nothing to do with the regulation of athletic competition ignores this obvious and direct interest of the NCAA and its members.”

Joe Paterno, the longtime head coach of the Nittany Lions, was fired following the child sex-abuse scandal. He passed away shortly after his termination.

Defense lawyers also claim in their filing that the lawsuit fails to allege harm to economic competition in the three markets it identifies – higher education, athletic apparel and football recruits – and that it does not allege that lessened competition from Penn State has made it possible for other universities to raise tuition or the price of athletic apparel, or to reduce the number or quality of scholarships that the school offers to student athletes.

Lastly, the NCAA argues that Corbett is not suing on behalf of anyone who has antitrust injury or standing to sue.

“PSU chose to compromise its differences with the NCAA by consent decree, and that choice was ratified by the appropriate decision-makers under Pennsylvania law,” the association’s attorneys wrote. “Parens patriae authority does not give Governor Corbett standing to challenge that decision, when the citizens he claims to represent have not themselves suffered antitrust injury. The complaint should be dismissed.”

The legal doctrine of parens patriae, or “parent of the country,” is when the state intervenes to protect the best interests of its young people.

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