CORBETT’S LAWSUIT AGAINST NCAA

Experts question state’s legal standing in Corbett’s lawsuit against NCAA

mdawson@centredaily.comJanuary 7, 2013 

When Pennsylvania Gov. Tom Corbett sued the NCAA to reverse sanctions against Penn State, he said the sports association overreached and acted illegally when it fined the university and banned the football team from bowl games.

No doubt, many Penn State alumni and fans have held those opinions for months and hope the governor is successful.

But whether Corbett’s federal antitrust lawsuit wins out, or even makes it to court, remains to be seen, and three legal experts say the case that is shaping up is not cut and dry.

Some of the experts agree one of the challenges for the state will be showing it has the legal standing to file the suit, as Penn State was not one of the parties in the suit and has said it will not join it.

On the other hand, some of the experts said the suit makes strong arguments that the NCAA went beyond its authority.

For Geoffrey Rapp, a sports law expert at the University of Toledo in Ohio, the lawsuit drawn up and written by Corbett’s legal team reads more like a due process complaint than an antitrust one.

In the suit, the governor is accusing the NCAA of bypassing its own procedures, like taking time to hold hearings, for investigating rule violations. The governor goes on to say the NCAA and leaders got together to draw up sanctions to cripple Penn State and make the football team uncompetitive.

“The focus of the complaint is on how arbitrary and capricious the process was,” Rapp said. “They’re complaining about the rush to judgment, the process.

“They haven’t highlighted the problems they need to be successful.”

Rapp said due process does not apply in the case, because the U.S. Supreme Court ruled in the 1980s that the NCAA is not a state agency, and due process laws do not apply to it.

“The real core of an antitrust claim is on harm to competition and having a negative impact on consumers,” Rapp said. “So it’s consumers paying higher prices or having a lesser supply of a product.”

The suit claims the sanctions will harm the economy in State College, but Rapp thinks the governor will need to show the sanctions have harmed Penn State’s ability to compete.

He does not think that totally applies because there was a season and Penn State missed out on a bowl game.

He expects the NCAA to file a motion to dismiss the suit.

“It’s a tough sell right now,” he said.

Michael McCann, a sports law expert who represented former Ohio State running back Maurice Clarett in a lawsuit against the NFL, thinks Corbett’s lawsuit has merit because it raises questions about the scope of the NCAA’s authority.

McCann wonders if the state of Pennsylvania has legal standing to file the suit. He said Penn State officials were the ones who signed the consent decree and therefore agreed to the sanctions.

The governor has said the state has standing because the sanctions harmed state residents.

McCann said the suit’s strongest point is its challenging the NCAA for sanctioning Penn State for Jerry Sandusky’s child abuse on campus, which is a criminal matter.

“I think the lawsuit makes a credible argument that what happened at Penn State goes beyond the regulatory authority of NCAA,” said McCann, who will be teaching at the University of New Hampshire’s law school in the fall. “The connection to that and the purpose of NCAA is one that warrants greater scrutiny.”

And if the NCAA can sanction Penn State for the Jerry Sandusky scandal, he questions how far the NCAA’s power can go.

McCann agrees that the NCAA did not use its normal process for sanctioning Penn State. He said he expected the NCAA to punish Penn State, and he said he wasn’t surprised NCAA officials acted because there was pressure on them to do so.

“I think of all times to wait, this was the time to wait,” he said.

McCann thinks a weakness in the case is the governor showing the sanctions harmed Penn State when Penn State games still had attendance well into 90,000 or more.

Matt Mitten, a law professor at Marquette University, agrees with McCann that a big challenge out of the gate will be whether Pennsylvania has legal standing.

And if the state is given legal standing, he sees the NCAA challenging on the grounds that the sanctions are about non-commercial regulation. Corbett’s lawsuit claims the NCAA violated the Sherman Antitrust Act, which prohibits agreements that restrain interstate commerce.

Mitten said the allegation of the Sherman Act violation would be “a collective boycott by NCAA schools.”

Mitten said he was surprised the governor did not say the sanctions violated the law of private associations.

“Even a private association would have to comply with its own rules by some level of due process,” he said.

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