The 7-year-old son of a former Nittany Lion made a startling discovery two weekends ago about his dad’s playing days at Penn State.
The boy accompanied his dad to Penn State’s game against Michigan, and at Beaver Stadium, he paged through the program to find when his dad played under coach Joe Paterno.
As the boy was dismayed to find, there were a bunch of zeros in the win column, as the victories were wiped out as part of the NCAA’s sanctions against the university.
“It hit him in the gut,” said the former Nittany Lion’s lawyer, Paul Kelly, on Tuesday, after he and other attorneys made arguments in the hope of convincing a judge to allow a lawsuit against the NCAA to continue.
Kelly used the anecdote in the courtroom during the three-hour hearing that saw his co-counsels and a lawyer for the NCAA debate whether the lawsuit should be dismissed, as the NCAA is requesting. The plaintiffs, who include the former player, Paterno family members and Penn State trustees, want a judge to void the consent decree that authorized the sanctions against the university, are claiming breach of contract, defamation, civil conspiracy among other counts.
Senior Judge John B. Leete, of Potter County, did not immediately rule from the bench, and he did not give any indication of how soon he would have his decision. His options are to allow all the claims to progress to the discovery phase, or dismiss some or all of them.
At the center of the Paternos’ lawsuit is the allegation that NCAA bypassed its own rules when it punished Penn State for the Jerry Sandusky scandal and base the penalties on the findings of the Freeh report instead of its own investigation. The judge more than once agreed with the uniqueness of how the NCAA handled it, and he even said: “They cut a new path with this case, no question about it.”
The NCAA contends it’s being made the scapegoat by a vocal and unhappy minority in the university community. The NCAA says most of the 21 plaintiffs don’t have any connection to the consent decree and cannot challenge it in court.
One of the most important decisions will be whether the case can move forward without Penn State, which is not a party. NCAA lawyer Everett Johnson argued the university is an “indispensable party,” or a group that would be necessary for a lawsuit to continue.
“The relief that is requested in this case, your honor, dramatically impairs the rights and privileges of Penn State,” Johnson told the judge.
“If there were no consent decree, Penn State would be back at square one.”
The sanctions include a $60 million fine, a bowl ban, scholarship reductions and the erasing of 112 victories from 1998 to 2011. The NCAA announced earlier this month it would gradually restore the university’s football scholarships during the next few years.
But, if the consent decree were voided, Penn State would be subject to an NCAA investigation and possibly harsher sanctions than what had previously been imposed, Johnson said.
“If the court were to invalidate the consent decree,” Johnson said, “that would, of course, restore that risk to the equation.”
Joseph Loveland, one of the lawyers for the plaintiffs, disputed that Penn State was necessary in the litigation. He said his clients should have standing in the lawsuit because they are third-party beneficiaries of the so-called contract Penn State signed with the NCAA in becoming a member of the organization.
“If we are right if the NCAA had no jurisdiction, then the consent decree imposed on Penn State has no basis. The threat of other violations or other remedies is an empty threat,” he said.
In addition, Loveland told the judge that the consent decree contains a provision that Penn State waived its right to mount a legal challenge.
“They don’t want anyone to pull back the covers and look what happened in this situation,” Loveland said, referring to the NCAA.
The NCAA also said several of the claims made by the plaintiffs lack specific information and that they should be dismissed.
For instance, Johnson said the two former assistant coaches, Jay Paterno and William Kenney, alleged they weren’t able to find work as football coaches because of their association with the consent decree.
But, Johnson said, their claims make no reference of whether they tried to find jobs or specifically how they were hurt. Johnson said neither Jay Paterno nor Kenney were mentioned in the Freeh report, which was the basis for the consent decree.
Kelly, one of the plaintiffs’ lawyers, said the consent decree spread an allegation that football coaches at Penn State were “aware Mr. Sandusky was kind of running amok.”
“Anyone in college sports knows if you’re the subject of disparaging remarks in a consent decree by the NCAA, no one will want to touch you,” Kelly said.
The lawsuit also claims that the estate of Joe Paterno was hurt financially by the consent decree, but the NCAA lawyer scoffed at the allegation because there wasn’t anything on paper to back it up.
Paterno lawyer Ashley Parrish said the Paterno name had been monetized, as the coach had endorsements and contracts with Nike, Bank of America and other companies, and the family donated that money to charity.
But Johnson said the Paternos cannot claim financial damages because the coach is not alive. The plaintiffs would have to show commercial activity now that’s been harmed, he said.
The NCAA also told the judge the sanctions were not imposed on a single person, such as Joe Paterno, even though he lost credit for 111 of the 112 wins that were vacated as part of the penalties. Rather, Johnson said, it was a sanction on Penn State.
“Coach Paterno doesn’t own those wins,” he said.
The hearing wasn’t quite the spectacle that the Sandusky court appearances in Bellefonte were last year.
Reporters mostly filled the seats in the audience, though a few prominent Penn State supporters were there, such as former trustee candidates Ted Sebastianelli and former state Sen. Robert Jubelirer. It got the attention of District Attorney Stacy Parks Miller and President Judge Thomas King Kistler, who watched some the proceedings.