Penn State, NCAA outline objections to Paterno family lawsuit

mdawson@centredaily.comMarch 17, 2014 

old main penn state campus university park

The Penn State University Old Main building.

NABIL K. MARK — CDT/Nabil K. Mark

Penn State agreed to harsh sanctions from the NCAA, and now the university is agreeing with the NCAA on another front: that the lawsuit brought against them by the family of Joe Paterno should be dismissed.

Lawyers for the university and the NCAA both filed papers Monday outlining the legal arguments behind their objections to the lawsuit, which asks a judge to void the consent decree and overturn the sanctions.

The dual filings came as a response to the modified lawsuit the Paternos filed last month. That’s when they added Penn State as a defendant and offered details to the claims that the consent decree has hurt two former coaches — Jay Paterno and Bill Kenney — in their efforts to find work.

The claims in the lawsuit “interfere” with the NCAA consent decree and “are harmful to” the university," a Penn State lawyer said in a letter attached to the new court filing.

Penn State wants the chance to give oral arguments to the judge before a decision is made.

The Paterno lawyers have until April 16 to respond.

The Paternos and their supporters include trustees, former coaches and former players. They say the NCAA bypassed its own rules when it penalized the university for the Jerry Sandusky scandal after the Freeh report was released in July 2012.

The sanctions include a $60 million fine, toward which Penn State has paid $24 million. The university saw scholarship cuts that will be restored incrementally and a four-year bowl ban.

From the outset of the case, the NCAA argued Penn State was a required party in the lawsuit to make some of the claims. The presiding judge, John Leete, of Potter County, agreed in a court order, and the Paternos’ lawyers decided to sue the university.

The plaintiffs insist that the university is merely a “nominal defendant” and not the target for any damages. But the university doesn’t see it that way.

The latest pleadings have similar arguments from Penn State and the NCAA, claiming that certain plaintiffs don’t have the legal standing to make claims and that those claims have to be thrown out because of that.

For instance, lawyers from both institutions said one trustee, Al Clemens, isn’t what the NCAA defines as an “involved individual” when it comes to the organization’s bylaws. The NCAA says he cannot sue on the grounds of breach of contract because he’s not an “involved individual,” the lawyers wrote in their filings.

Clemens has said he is resigning from the board, though his last day as a trustee is not known yet.

The lawyers used the same argument about standing regarding Paterno and his estate.

Paterno died in January 2012, and the lawyers said that because his death happened before the release of the Freeh report and the imposition of the sanctions, the plaintiffs’ point is irrelevant.

The Paterno estate can’t sue for breach of contract either, the lawyers argue, because it doesn’t have the legal standing.

Penn State also called for the lawsuit to be thrown out because its lawyers said the lawsuit doesn’t make clear which claims are targeted at the university.

The university lawyers read the complaint as though all the plaintiffs are suing the university, including trustees Anthony Lubrano, Ryan McCombie and Adam Taliaferro.

The trustees’ lawyer, Paul Kelly, has said in writing that the trustees are not suing the university but declined to change the lawsuit to make the distinction more spelled out.

The participation of Lubrano, McCombie and Taliaferro has drawn the ire of Penn State, whose officials have maintained that their being involved is a clear conflict of interest.

In the pleadings, the NCAA’s lawyers rejected claims that the consent decree has hurt the two former coaches’ job prospects.

Jay Paterno and Kenney were not kept on by Bill O’Brien, and they said in court documents last month that they have had interviews but no success.

The NCAA said that while they blame the consent decree, there is no evidence linking the consent decree to their job woes.

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