Penn State didn’t have a figurative gun to its head in the form of the so-called “death penalty,” as attorneys for Joe Paterno’s family have claimed, because there were only football games at stake.
NCAA attorneys made that argument Monday in asking a judge to dismiss the Paterno family’s challenge to sanctions levied against Penn State in the aftermath of the Jerry Sandusky child sexual abuse scandal.
“They might not play football on Saturday — that’s not a gun to the head,” NCAA attorney Everett Johnson said. “At the end of the day, it’s just a game.”
Johnson argued Monday that Penn State willingly entered into the consent decree, challenging the Paterno estate’s right to get involved in the bilateral agreement between the university and NCAA.
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Penn State made a decision between “two unpleasant outcomes,” Johnson said, referring to a choice between accepting the sanctions or facing a prolonged investigation and possible harsher penalties from the NCAA.
Paterno family attorneys see it differently, claiming again Monday that Penn State was being held at gunpoint by the NCAA. If the Paternos can show the university agreed to the sanctions under duress, it could help them show they have standing to get involved.
Attorneys for Penn State, who had their first chance to weigh in before the judge since the university was added as a defendant in February, stood by the NCAA on Monday regarding the consent decree.
University attorney Dan Booker said the sanctions, “as harsh as any of us think it was,” resolved a serious situation for Penn State that could have ended differently, perhaps with the “death penalty” for its football team.
If the Paternos succeed in having the consent decree voided, “then we aren’t sure where we are,” Booker said.
Paterno family attorney Joseph Loveland said further penalties for Penn State are a “hollow threat.” He dismissed the notion that the NCAA would try to take another bite of the university if the sanctions are tossed in court.
Loveland asked, “If we are right that there was no basis (for the sanctions), how in the world are they going to do it again?”
The Paterno estate and its supporters — including trustees and former coaches and players — are seeking the reversal of the $60 million fine, scholarship reductions, bowl ban and erasing of Joe Paterno’s 111 wins that were spelled out by the consent decree.
Loveland argued that the estate has standing to get involved because Paterno and others at Penn State were harmed by the sanctions, and that the NCAA disregarded its own constitution and rules in imposing them.
“We’ve been in this court for a year,” Loveland said. “It’s time to lift the stone.”
The NCAA’s objection to the Paternos’ lawsuit made up a large chunk of the 31/2-hour hearing Monday.
But Senior Judge John Leete, who is presiding over the case, also heard objections to a subpoena the Paternos filed seeking millions of documents collected by former FBI director Louis Freeh in his internal Penn State investigation of the Sandusky scandal.
Loveland said the estate wants a database containing 3.5 million files collected by Freeh and copies of materials he generated conducting interviews for the report, arguing that Penn State waived attorney-client privilege when making the report public.
Penn State attorney Donna Doblick said the waiver was limited to the report — it was not a blank waiver on all of Freeh’s work. She said handing over Freeh’s interviews would be a “frontal assault” on the expectation of confidentiality those he spoke with had.
Penn State has balked at handing over the database of Freeh material, saying much of the information is unrelated to the Paterno suit and that some documents are confidential. They instead asked for keywords from Penn State to narrow the search.
Loveland said Penn State was using privilege like a “sword and shield” in the case, allowing Freeh to make public assertions about Paterno but keeping the supporting facts private.
Leete made no rulings from the bench Monday, and didn’t set a time frame on when those decisions might come.
The hearing drew Penn State trustee Anthony Lubrano, who is part of the lawsuit, and newly elected trustee Bob Jubelirer.
NCAA and Penn State attorneys declined to comment after the hearing.
Scott Paterno, who attended the hearing, also declined to talk afterward, but spokesman Dan McGinn said the family was pleased with the proceedings.
When asked about Johnson’s comments that only football games were threatened by a “death penalty,” McGinn said, “This is about a lot more than that.”
“The whole matter goes to the heart and soul of the university community,” he said.
McGinn said the case and its outcome are important for “people who care about the truth.”