The document filed in Commonwealth Court on Friday is just a formality, a joint pre-trial statement that spells out the facts and the arguments as both sides see them heading into the Jan. 6 showdown pitting state Senate Majority Leader Jake Corman and Treasurer Rob McCord against the NCAA and Penn State.
The parties are going into the last steps of their battle over the Endowment Act, the Corman-backed law that would force the $60 million penalty the NCAA imposed on Penn State after the Jerry Sandusky child sex abuse scandal to stay in Pennsylvania. At the heart of it all is one question: Is the consent decree — the agreement between the two that allowed for the fine, the postseason ban, the suspension, the scholarship restrictions and stripped football victories — valid?
The NCAA says yes. But one part of its argument raises questions in light of other documents published in recent weeks.
“The evidence at trial will establish that the consent decree satisfies all of the prima facie elements of a valid enforceable contract,” the document states. Those points are offer, acceptance and consideration.
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The consent decree is a written document, signed by both the NCAA and the university, representing the “offer” and the “acceptance.” But what about that third aspect?
The NCAA quotes a 1983 Commonwealth Court case for its argument, saying “the requirement of consideration, of course, is nothing more than a requirement that there be a bargained for exchange.”
But in emails that were released last month, bargaining did not seem to be part of the process.
“We don’t want people to get the impression this was a negotiated settlement. PSU didn’t have a say in the penalties,” Vice President of Communications Bob Williams wrote July 21, 2012.
The NCAA contends that the Penn State gained from signing the consent decree, namely avoiding further investigation by the NCAA after the university’s own commissioned independent investigation by former FBI chief Louis Freeh, potentially harsher sanctions including the death penalty for the football program, potential for sanctions to be reduced (which did happen over the past two years), and the ability “to reposition itself as a leader at the forefront of institutional control and child sexual abuse issues.”
On its part, the NCAA claims it benefited from resolving the “unprecedented and horrific matter,” not duplicating the investigation, avoiding litigation and continuing a working relationship with Penn State.
At least two alumni-elected members of the Penn State board of trustees have issues with the argument.
“I think that so much happened that still has to come out,” said Barbara Doran. She questions why then-president Rodney Erickson signed it without a vote.
“I think that something that significant in its impact, the board should definitely have been consulted,” she said.
“There was no due process,” said former senator Bob Jubelirer, suggesting that Erickson, who took office just months earlier when former president Graham Spanier was fired along with longtime head coach Joe Paterno, was well-intentioned but out of his depth. Other emails have suggested the NCAA “bluffed” the university into accepting the sanctions and that the university would take any deal offered due to “embarrassment.”