BELLEFONTE — The NCAA wants a judge to dismiss the lawsuit brought by the family and supporters of late head coach Joe Paterno, saying the claims are “baseless” and that Penn State is missing as an essential party in the case.
The NCAA filed its response to the Paterno family’s civil lawsuit on Tuesday, the day marking one year since the NCAA came down on Penn State for the Jerry Sandusky scandal with sanctions that include a $60 million, a bowl ban and scholarship reductions. The NCAA asked for a hearing in front of Senior Judge John Leete, who’s been assigned to the case, to make its arguments.
The Paternos’ lawsuit, filed at the end of May, asks that the court wipe out the sanctions on the grounds that the NCAA breached its contract with the university when it imposed the penalties without an investigation. The NCAA used the Freeh report’s findings in lieu of its own investigation.
Joining the Paternos in the lawsuit were five Penn State trustees plus former Nittany Lion players and coaches and Penn State professors.
The NCAA argued in its written objections that Penn State is a necessary party in the suit and it was the university’s president, Rodney Erickson, who signed the consent decree that set forth the sanctions. The plaintiffs in the lawsuit were not punished by the NCAA and do not have the legal standing to sue, the organization’s lawyers argued.
The written arguments said the lawsuit lacked legal merits regarding other claims, such as whether the consent decree defamed Penn State or whether the Paterno name was tarnished. The NCAA also denied the accusation that its leadership of President Mark Emmert and now former Chairman Ed Ray conspired with Louis Freeh and his investigators.
“Penn State leaders determined the consent decree was the best course for the university and its community to put the devastating Sandusky affair behind them,” NCAA chief legal officer Donald Remy said in a statement. “Those who continue to challenge Penn State’s right to make that decision only prolong the pain and delay the recovery.”
The response from the NCAA comes a week and a half after a closed-door session in which coach Bill O’Brien talked to the university’s trustees about a possible request to the NCAA to modify the sanctions, though the specific details have not been made public yet. O’Brien’s presentation indicated he thinks the individual lawsuits could discourage the NCAA from working with Penn State if the proposal is ever sent to the organization.
The lawyer for the Paterno supporters, Paul Kelly, of Boston, did not offer immediate comment as he had not been able to review the NCAA’s response.
The five trustees named in the suit are Anthony Lubrano, Ryan McCombie, Alvin Clemens, Adam Taliaferro and Peter Khoury. On Tuesday, the three trustees elected to the board on platforms critical of the board’s handling of the Sandusky scandal, issued a joint statement in support of the lawsuit.
“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. But to do that would not be in the long-term interest of this great university and the broader Penn State community,” said the statement from Ted Brown, Barbara Doran and Bill Oldsey. “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.”
According to the written objections from the NCAA’s lawyers, Penn State’s rights would be violated if the consent decree were voided. In addition, the NCAA said the consent decree allowed the university to avoid a long investigation and the so-called death penalty, but if the consent decree was voided, Penn State could receive harsher sanctions.
Further, the NCAA said, the Paternos and their supporters haven’t shown they were “substantially” hurt by the sanctions.
“Even if the NCAA did owe (the) plaintiffs certain due-process rights under the (NCAA) bylaws — which it did not — that alleged breach would not invalidate the entire consent decree, including provisions having nothing to do with the plaintiffs,” the NCAA’s response reads.
The NCAA also argued there is no legal basis to support claims that the consent decree and other statements defamed the Penn State community. The NCAA said the statements don’t identify by name any of the plaintiffs and the accusations in the lawsuit fail to show the NCAA was malicious.
Instead, the NCAA said, the statements were the NCAA’s opinions based on the findings of the Freeh report.
The lawsuit names Emmert and Ray as defendants, but the NCAA argued that those two men can’t be sued in Pennsylvania because neither of them was in the state during the time in question. Emmert either phoned Erickson or sent him letters, and Ray never communicated to Erickson about the consent decree, the NCAA said.
Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT.