The Paterno family and Penn State supporters scored a win over the NCAA on Tuesday, as some of their claims survived the first round of the legal battle and can proceed to the discovery phase.
The Paternos, in a statement, hailed Senior Judge John Leete’s opinion on Tuesday that gives the green light to claims of defamation, civil conspiracy and commercial disparagement as a “significant victory.” The lawsuit, which includes Penn State trustees, former players and coaches and professors as plaintiffs, seeks to have a jury overturn the sanctions the NCAA imposed on Penn State last summer.
Leete, a retired judge from Potter County, did dismiss the breach of contract claims, saying that they cannot proceed unless Penn State joins the lawsuit within the next 30 days. The judge also dismissed claims that the sanctions harmed two former coaches’ attempts to find work, though he said the claims can be refiled.
“This is a case that deserves transparency and due process,” Paterno lawyer Wick Sollers said in a statement. “It is a case that can never be resolved until the full truth is known. With this ruling the bright light of legal discovery will finally shine on the facts and records of all parties involved.”
A Penn State spokesman declined to comment on whether the university would join the lawsuit. University officials have denounced the lawsuit and the trustees’ involvement.
The NCAA saw the judge’s decision as one that upheld the legal merit of the consent decree, which the plaintiffs have said university President Rodney Erickson was forced to sign or face the prospect of seeing the football program shut down.
“We are exceedingly pleased that the court rejected the plaintiffs’ effort to undo the consent decree,” NCAA chief legal officer Donald Remy said in a statement. “As this was the last remaining legal challenge to the validity of the consent decree, we hope the court’s decision finally brings closure to this issue and allows the Penn State community to continue to move forward under the consent decree and the athletic integrity agreement.”
The judge’s decision opens the door for the plaintiffs and the NCAA to proceed with discovery — such as subpoenaing documentation and depositions of important individuals they think will help their cases.
The judge threw out a claim of interference with contractual relations but kept in place civil conspiracy and commercial disparagement elements.
The judge still has to deal with the matter of whether two defendants named in the suit — NCAA President Mark Emmert and former NCAA executive director Ed Ray — can be sued. The NCAA says they can’t be defendants because they never set foot in Pennsylvania.
The NCAA imposed the sanctions on Penn State based on the conclusions of the Freeh report. Penn State lost scholarships, was banned from bowl games for four years, saw its wins from 1998 to 2011 wiped from the history books and agreed to pay a $60 million fine.
The NCAA has since relented, easing up on the scholarship sanctions. In addition, the fine is still in litigation as well, with the NCAA defending another lawsuit that would require the money to stay within the state.
But the plaintiffs said the NCAA harmed them in various ways.
For instance, Penn State trustee Al Clemens can pursue the claim that the NCAA’s consent decree defamed him as someone who failed to oversee senior university administrators in the 1998 and 2001 Jerry Sandusky abuse allegations.
Former coaches Bill Kenney and Jay Paterno also can pursue a defamation claim. They said they were harmed when the consent decree stated that some unidentified coaches “ignored the red flags of Sandusky’s behaviors.”
All the plaintiffs are still able to pursue the civil conspiracy claims, or the allegation that the NCAA and the investigators on Louis Freeh’s team worked together to hurt Penn State.
The judge wrote: The “plaintiffs’ allegations that (the) defendants and the Freeh firm recklessly disregarded (the) plaintiffs’ procedural rights in imposing sanctions in a criminal matter unrelated to recruiting and athletic competition, accepted the flawed Freeh report knowing it was not the result of a reliable investigation, and falsely accused (the) plaintiffs of enabling and causing child sex abuse are sufficient to allege malice.”
On Twitter, another Paterno son, Scott Paterno, announced the judge’s decision.
“Ladies and Gentlemen — the Court just gave us Discovery in Paterno vs. NCAA,” he wrote. “Here we go.”