NCAA files preliminary objections to Paterno suit challenging Sandusky-related sanctions

By Jon Campisi | Jul 24, 2013

An attorney representing the National Collegiate Athletic Association in a

civil suit initiated by the family of late Penn State University head football coach Joe Paterno filed preliminary objections to the complaint on behalf of his client July 23.

The filing came around the same time the university’s three newest trustees reportedly released a statement saying they support the litigation, which challenges the sanctions imposed on the school following the Jerry Sandusky child sex-abuse scandal.

Paterno’s relatives and the other plaintiffs in the case – they include university trustees, faculty members and former football coaches – claim in their lawsuit, which was filed in state court this spring, that the NCAA improperly interfered with a  “criminal matter that falls far outside the scope of their authority.”

The complaint seeks to remedy the alleged harms caused by the defendants’ “unprecedented imposition of sanctions on Pennsylvania State University for conduct that did not violate the NCAA’s rules and was unrelated to any athletics issue the NCAA could permissibly regulate.”

Following the child molestation scandal, the NCAA hit Penn State with a $60 million fine, it vacated a number of past football wins, and it placed future scholarship limits on the university because of Penn State’s handling of the Sandusky matter.

Sandusky, the former defensive coordinator for the Nittany Lions, was convicted last June on 45 counts of child sexual abuse stemming from his molestation of young boys for more than a decade.

He is serving out a 30-to-60-year state prison sentence.

The Paterno suit claims that the NCAA breached its contractual obligations with Penn State.

In his July 23 filing, NCAA attorney Thomas W. Scott, of the Harrisburg firm Killian & Gephart, wrote that the defense takes issue with the suit for a number of reasons, including alleged failure to join an “indispensable party,” which in this case would be Penn State itself.

“Granting Plaintiffs’ requested relief would impair Penn State’s rights by voiding a contract to which it is a party,” Scott wrote.

The contract to which Scott referred to is the consent decree signed by both the NCAA and the university that provides for the sanctions.

“Penn State entered into the Consent Decree for valuable consideration,” Scott wrote. “Declaring the Consent Decree void … as Plaintiffs seek, could expose Penn State to a prolonged investigation, with the attendant uncertainty that would bring to the football program, and could potentially result in Penn State receiving harsher sanctions than it had contracted to avoid.”

The complaint directly challenges the autonomy of the university, and it “strikes at the authority and responsibilities of the University’s senior leadership,” Scott wrote.

“As such, Penn State is an indispensable party because its rights are intimately intertwined with the claims of the litigants such that no findings can be made without affecting those rights,” Scott wrote.

The NCAA takes issue with the suit for other reasons, including it contention that the plaintiffs lack standing to bring a breach of contract claim against the NCAA because they are neither parties to Penn State’s membership agreement with the NCAA nor third-party beneficiaries of that agreement.

“The NCAA’s Constitution and Bylaws do not manifest or express an intent to bestow procedural rights to appeal a member university’s sanctions on an unbounded set of former players, former head or assist coaches, trustees, or faculty members from that university,” the defense filing states.

Only “involved individuals” would have standing to sue, wrote Scott, the NCAA’s attorney. They would include “former or current student-athletes and former or current institutional staff members who have received notice of significant involvement in alleged violations through the notice of allegations or summary disposition process.”

The NCAA, the lawyer wrote, has never treated former players, coaches, university trustees or faculty members not under consideration for individual sanctions as “involved individuals” as defined by the NCAA bylaws.

Paterno in particular cannot qualify as an “involved individual,” Scott wrote, because the late coach passed away before an internal investigatory report commissioned by the university relating to its handling of the sex scandal was released, and due to the fact that Paterno died before the sanctions were levied against the school.

The NCAA’s attorney also took a stab at the defamation claim in the suit, writing that none of the alleged defamatory statements mentioned any of the plaintiffs by name or could “reasonably be interpreted as referring to them.”

Meanwhile, three of the university’s newest trustees – Ted Brown, Barbara Doran and William Oldsey – reportedly released a public statement voicing support for the Paterno suit.

The three stated this week that they believe the sanctions against the university were wrongly imposed and that they support a “legal review of … the basis for the sanctions and the process used to enact them.”

Penn State spokesman David LaTorre told the Pennsylvania Record he did not have a copy of the trustees’ statement to release to the media, and one didn’t appear to be immediately available.

The statement was referred to in a Tuesday story by the Patriot-News in Harrisburg.

“There are those who suggest that we should move on and accept the NCAA sanctions as imposed, and we respect their views and commitment to Penn State,” the trustees wrote, according to the Harrisburg newspaper. “But to do that would not be in the long-term interest of this great university and the broader Penn State community. We firmly believe that truth and justice should never fear an open hearing and review – whether in the courts or before the board of trustees.”

The plaintiffs in the case are being represented by Harrisburg attorney Thomas J. Weber, of the firm Goldberg Katzman P.C., and Washington, D.C. lawyer Wick Sollers, of King Spaulding LLP.

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