NCAA calls lawsuit filed by Paterno family group meritless

mdawson@centredaily.comSeptember 26, 2013 

Two days after the NCAA relaxed the sanctions on Penn State, the organization’s lawyers turned to fight off the legal challenge brought by the family of Joe Paterno and its supporters to overturn all the unprecedented penalties against the university.

In a pleading filed Thursday, the NCAA stood by its assertion that the lawsuit being waged by the Paternos and their supporters, including university trustees and former coaches, should be dismissed because Penn State is not a plaintiff and their claims are “novel” and meritless. The filing was a response to written arguments the plaintiffs’ lawyers wrote to defend against the NCAA’s first written set of objections in the case.

“Plaintiffs resort to tortured interpretations of the NCAA Bylaws and the case law in an effort to obscure two inescapable facts: they are the wrong plaintiffs and they have sued the wrong defendant,” the NCAA’s lawyers said in their pleading. “Plaintiffs have expressed their deep dissatisfaction with the summary resolution process that the NCAA and Penn State agreed to undertake, but they do not plausibly have any standing to challenge that process.”

The Paterno family and supporters brought the lawsuit to void the consent decree that authorizes the $60 million fine on Penn State, the post-season bowl ban, the erasing of 112 wins from the history books and the scholarship reductions.

On Tuesday, the NCAA said it would gradually return Penn State scholarships five a year until the football team had its regular stock of 85 in the 2016-2017 academic year. NCAA officials acted on the recommendation by the former U.S. Sen. George Mitchell, who is monitoring Penn State’s reforms and has praised the university’s efforts over the past year.

NCAA officials said Tuesday that they’ll keep the door open to removing Penn State’s bowl ban. They said that will be an incentive for the university to continue its progress in instituting reforms.

The lawsuit’s plaintiffs include Penn State trustees Anthony Lubrano, Alvin Clemens, Ryan McCombie and Adam Taliaferro, the latter a Nittany Lion under Paterno. The trustees’ participation has garnered criticism from the board of trustees and even football coach Bill O’Brien, who feared this summer that their participation could hurt the chances of seeing the sanctions modified.

The NCAA denied the Paternos’ stance that Penn State does not have to be a party in the lawsuit for it to proceed to the discovery phase. The organization’s lawyers say state law makes it clear that a side in a contract is required in a lawsuit seeking to void the contract.

The NCAA said the lawsuit’s other claims of breach of contract, defamation, and commercial injury don’t have claims with any legal merits.

For instance, the NCAA says the defamation claims reference remarks about Penn State and not specifically the plaintiff trustees, former coaches and players, and faculty members.

The lawyers attacked the lawsuit’s claim that former FBI director Louis Freeh conspired with the NCAA to penalize Penn State, calling it a “conspiracy theory.”

The NCAA also contends that the lawsuit cannot make claims based on financial losses to the estate of Joe Paterno because the coach has died.

“The family of Joe Paterno is undoubtedly hurting from the repercussions that the Jerry Sandusky scandal and its attendant notoriety has inflicted on the late coach’s legacy,” the NCAA’s lawyers wrote. “But that frustration simply does not translate into a cause of action for commercial disparagement against the NCAA.”

Lawyers for the NCAA and the Paternos are scheduled to give oral arguments Oct. 29 on whether the lawsuit should be dismissed. The case is being heard in Centre County by out-of-county Judge John B. Leete.

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