Paternos, supporters sue NCAA for ‘entire Penn State community’

mdawson@centredaily.comMay 31, 2013 

— Former Penn State football players, five current trustees, professors and a coach have joined with the Paterno family in an attempt to take the NCAA to court and overturn the unprecedented sanctions against the university through a civil lawsuit the group filed Thursday.

The Paternos and their co-plaintiffs — including trustees Anthony Lubrano, Adam Taliaferro and Ryan McCombie and former players Michael Robinson and Justin Kurpeikis — want a judge to void the $60 million fine, bowl ban, scholarship reductions and other sanctions that they say were the handiwork of NCAA President Mark Emmert and Oregon State President Ed Ray, who was then the chairman of the organization’s executive committee.

The lawsuit claims the men conspired to force Penn State President Rodney Erickson into accepting the sanctions, and it accuses the NCAA of breaching its contract with people connected to Penn State by forgoing its own internal investigation and using the “deeply flawed” Freeh report, which found that university officials, including Joe Paterno, conspired to hide abuse allegations against Jerry Sandusky in 1998 and 2001.

“This legal action is all about fairness and due process and is brought on behalf of the entire Penn State community,” said Paul Kelly, a Boston lawyer who is one of three attorneys representing a group of 20 plaintiffs. “My clients ... believe that the NCAA took actions that were unprecedented, unwarranted and unlawful.

“Neither they, nor the victims of the reprehensible acts of one individual, have been afforded any process whatsoever.”

It’s the second lawsuit to date that aims to use a judge and a jury to overturn the sanctions. The first was brought by Gov. Tom Corbett, who claimed that the sanctions violated federal antitrust law, and it is now before a federal judge in Harrisburg who is considering whether to dismiss it or allow it to proceed.

The crux of the Paterno group’s lawsuit is that the NCAA bypassed its own rulebook when its officials punished the university for Sandusky’s crimes that were being tried in court.

“The NCAA has no authority to investigate or impose sanctions on member institutions for criminal matters unrelated to athletic competition at the collegiate level,” the lawyers representing the Paterno group wrote in the lawsuit. The NCAA, Emmert and Ray “took their unauthorized and unlawful actions in an effort to deflect attention away from the NCAA’s institutional failures and to expand the scope of their own authority by exerting control over matters unrelated to recruiting and athletic competition.”

The Paternos and their supporters claim Emmert and Ray conspired to levy the tough sanctions on Penn State. The lawsuit said the NCAA’s executive committee gave Emmert the authority to investigate Penn State, even though the committee did not have that power. Further, the lawsuit said the so-called death penalty could not be imposed according to NCAA rules, but Emmert still threatened Erickson with it if word leaked out about the sanctions before they were formally announced last summer.

Both lawsuits made similar accusations that the NCAA did not have the authority to sanction Penn State, and neither suit has Penn State on board as a plaintiff.

University spokesman David La Torre declined to comment Thursday, but university officials have said publicly in the past that they are committed to fulfilling the requirements of the NCAA consent decree, which lays out the punishments and requires Penn State to adopt the recommendations in the Freeh report.

A message sent to an NCAA spokesman Thursday was not returned.

The lawyers said the suit was filed in Centre County because the sanctions’ effects were felt here, and court officials will ask the state Supreme Court to appoint an out-of-county judge to preside over the suit because of the local judges’ connections to Penn State.

Scott Paterno, a son of Joe Paterno, is leading the charge in this lawsuit as a representative of his late father’s estate. He is joined by a cast of five university trustees, four university professors, two former coaches and nine former football players.

The lawsuit also comes months after the Paterno family, trustee Ryan McCombie and the former players tried in August to appeal the sanctions to the NCAA but were denied.

In the rumor mill for months, the lawsuit was announced on national TV Wednesday night by Paterno family lawyer Wick Sollers. Harrisburg lawyer Thomas Weber and Kelly, the Boston lawyer, are also representing the plaintiffs.

Kelly said his clients had no other choice than suing the NCAA after they were refused a chance to appeal through the organization.

In a message to Nittany Lion lettermen, the Paterno supporters said the lawsuit was an “important and overdue step” to reverse the “grossly unfair characterization of Penn State’s culture.”

“While some may criticize this action and urge us to simply continue to surrender our rights and values, we stand confident knowing that our claims are strong and our cause is justified,” they wrote.

The Paterno family lawyer said Wednesday that any money awarded from the lawsuit will be given to charity. The lawsuit seeks punitive and compensatory damages, claiming, too, that the NCAA and its consent decree defamed the Paterno name and will cause the Paterno estate to suffer financial losses.

“The imposed (c)onsent (d)ecree is an indictment of the entire Penn State community, including individual institutional leaders, members of the (b)oard of (t)rustees, those responsible for and participants in athletics programs, the faculty and the student body,” the lawyers wrote. “The (c)onsent (d)ecree charges that every level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program, in disregard of the values of human decency and the safety and well-being of vulnerable children.”

According to the lawyers, the NCAA, Emmert and Ray “should have known that by accepting the Freeh (r)eport they would dramatically increase the publicity given to its unreliable conclusions, effectively terminate the search for the truth and enable the NCAA to force Penn State to accept” the sanctions.

The lawsuit also claims that the NCAA sanctions have hurt Penn State’s ability to attract and keep high-quality faculty, students and administrators, though the university has strongly disputed that the Sandusky scandal fallout has had any effect whatsoever on student recruiting.

Among the plaintiffs are Jay Paterno, another of Joe Paterno’s sons, and Bill Kenney, both of whom were assistant coaches and said in the suit they have not been able to find new jobs because of the NCAA sanctions. They are suing on the grounds of one count of intentional interference with contractual relations.

Penn State professors Terry Engelder and Peter Bordi are among the faculty members who are part of the lawsuit, and when reached Thursday they deferred comment to their lawyer, Kelly.

One of the plaintiffs who is a trustee, McCombie, warned board Chairman Keith Masser of the pending lawsuit in a letter Wednesday.

“This lawsuit is being filed only after much thought and careful reflection,” McCombie wrote. “I have had many passionate conversations with Penn State faculty and staff, some of whom have asked to ‘just allow us to move on for the sake of our students.’ I have heard the pleas of President Erickson and former Chairwoman (Karen) Peetz of the (b)oard of (t)rustees to do likewise.

“Our fundamental civil rights are tenuous and fragile. If we do not stand up and defend them, we risk losing them.”

A law professor from the University of Toledo in Ohio saw weaknesses in the lawsuit and said he doubts a jury ever will hear the case. Geoffrey Rapp said there are too many holes in the legal theories and expects the many of the plaintiffs to be dismissed from the case.

For instance, he said judges are reluctant to get into disputes with organizations over their rules, and it can be argued that by Penn State’s signing the consent decree it accepted the NCAA’s interpretation of the contract. He thinks the coaches may have a case on their count of intentional interference with contractual relations, but the evidence may be lacking.

“I think at the end of the day, it’s going to boil down to the Paterno estate and the coaches as the two sets of plaintiffs being left, and I just can’t see them getting any relief out of this,” Rapp said.

The alumni group Penn Staters for Responsible Stewardship threw its support behind the lawsuit. “It is time to get the Freeh report into a court of law and to fully understand why such conjecture would be so readily accepted,” the group said in a statement Thursday.

Trustees-elect Barbara Doran, Edward “Ted” Brown and William Oldsey also said in a statement that they support the lawsuit.

Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT.

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