Lawyer for Paterno supporters: NCAA ‘failed to follow their own bylaws’ in sanctions against Penn State

mdawson@centredaily.comJuly 8, 2013 

Despite the NCAA’s recent success in fending off a lawsuit from Gov. Tom Corbett, two Penn State trustees are confident the Paterno family’s approach will have better luck.

In an interview with the Centre Daily Times, trustees Anthony Lubrano and Alvin Clemens said they are not seeking any personal monetary damages, but instead they are after a reversal of the sanctions the NCAA imposed on Penn State.

“I think the alumni need some kind of closure,” Clemens said. “There’s just no justice and somewhere in there, there has to be some kind of justice.”

The lawsuit was filed in late May in Centre County court and will be heard by a judge from Potter County, John Leete.

The issue at hand won’t get into defending Joe Paterno’s character or what he or anyone else at Penn State knew about the allegations of child abuse against Jerry Sandusky.

“We did not take this action lightly,” said Boston lawyer Paul Kelly, who is representing the Paterno supporters, who include Penn State faculty and former football players. “This was the product of a lot of thought and reflection.”

The No. 1 issue, the lawyer said, is due process and fairness.

“We believe they had no process to become involved in this matter,” Kelly said about the NCAA. “They clearly failed to follow their own bylaws.”

The NCAA has yet to respond to the lawsuit in writing.

Kelly said the NCAA asked for an extension to file a response, which was granted. He’s expecting a response by July 23.

Kelly fully expects the NCAA’s response to be one that calls for the lawsuit to be thrown out.

“Given the NCAA’s past history in such matters, and the position they took in Gov. Corbett’s lawsuit, I think it’s fairly likely they will file a motion to dismiss,” Kelly said. “We obviously had that in mind when we filed the suit.”

Kelly didn’t want to predict the NCAA’s arguments in the event he would end up helping out the organization’s lawyers as they pull together the response.

If the lawsuit survives the speculative motion to dismiss, Kelly said it will be “critically important” to delve into the communications between people such as NCAA President Mark Emmert and the former chairman of the organization’s executive committee, Ed Ray.

Emmert has said the so-called death penalty was on the table for Penn State, but Ray has said the death penalty punishment was not part of the discussion.

Penn State President Rodney Erickson has said he signed the consent decree, the document outlining and accepting the sanctions, with his back against the wall under the threat of the devastating football shutdown.

Kelly said he would seek depositions from Emmert, Ray, Penn State administrators and even Louis Freeh, the former FBI director whose scathing report was used by the NCAA as the basis for the sanctions.

Clemens and Lubrano are among those who find problems in the Freeh report.

Outside the usual complaints that Freeh’s investigators did not interview central figures in the Sandusky scandal, such as athletic director Tim Curley and the 2001 whistle-blower, Mike McQueary, the trustees faulted the process.

Clemens was one of the 430 people interviewed by Freeh investigators. He said that investigators asked him “leading questions.”

Lubrano said a former Penn State coach was asked whether Paterno held sway over the coaches and his team’s budget.

“It does not appear to us at this moment … that this was an objective, careful investigation where they allowed the facts to unfold,” Kelly said.

Penn State is not a party in this lawsuit, and the university has stayed away from other lawsuits involving the NCAA.

Three other trustees — Adam Taliaferro, Ryan McCombie and Peter Khoury — are plaintiffs. And it remains to be seen if trio of brand-new trustees, Barbara Doran, Edward “Ted” Brown and William “Bill” Oldsey, will at some point ask to be added to the list of plaintiffs. All three ran for their trustee seats on campaigns that were anti-NCAA and anti-Freeh report and pro-Paterno.

Lubrano and Clemens said they haven’t heard how their fellow trustees outside that circle of reform candidates feel, but Clemens said the response from alumni is “totally positive.”

And Kelly said there’s support coming in from universities around the country, whose trustees, athletic directors and general counsels believe the NCAA overstepped its authority. Kelly declined to go into specifics about which universities he has heard from.

Kelly also alleged there was “regular contact” between the NCAA and Freeh investigators.

“We have been informed by knowledgeable sources that there were periodic briefings and exchanges by Freeh’s investigators and the NCAA, and it included instances where the NCAA made certain kind of requests or recommendations as to areas they might want to explore,” Kelly said. “There was a certain level of collaboration going on there.”

The lawsuit accuses the NCAA of breaching its contract with Penn State.

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

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