The original lawsuit filed by the estate of former Nittany Lion football coach Joe Paterno had a long list of co-plaintiffs, including five trustees, four professors, nine former players (10 if you count Adam Taliaferro, who is also one of the trustees) and two former coaches.
The court whittled that list of 20 people down to just three who were allowed to remain attached to the case by September 2014. Today, only former trustee Al Clemens and former assistant coaches Bill Kenney and Jay Paterno remain co-plaintiffs, suing the NCAA for breach of contract, tortious interference, defamation, commercial disparagement and conspiracy in the wake of the Jerry Sandusky child sex abuse scandal.
The NCAA tried to knock at least one more off that list with a response to the Paternos’ second amended complaint and its own new matter filed Wednesday.
According to documents filed by NCAA attorney Thomas Scott, several of the new issues are aimed at Clemens.
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In the first count of the new matter, Scott claims that “the affirmative defense of ratification” should stop Clemens’ claim of breach of contract. Ratification, legally, refers to the official adoption or endorsement of acts taken by another.
“The (b)oard of (t)rustees and (p)laintiff Clemens in particular, expressed their support for President (Rodney) Erickson’s decision to execute the (c)onsent (d)ecree,” Scott wrote.
The consent decree is the agreement between Penn State and the NCAA that allowed for unprecedented punishment of Penn State and its football program. Then-president Erickson agreed to the decree, which was later accepted by the board.
Scott pointed to language in the decree itself that claimed Penn State “had taken all actions necessary to execute and perform this.”
The filing also addresses Clemens’ ability to pursue defamation and conspiracy claims.
At issue, Scott wrote, is the hiring of former FBI director Louis Freeh’s law firm to investigate the Sandusky situation and issue a report “which included the exact statements that (p)laintiff Clemens alleges are defamatory in this action,” and the fact that the board of trustees issued a statement taking responsibility and acknowledging its own failures.
Scott claimed the board’s, and Clemens’ own, actions prevented his ability to pursue the counts based on the idea that he had given consent.
A similar argument, that of estoppel, was used to try to negate all of Clemens’ claims. Estoppel is a legal doctrine that says a person cannot take one action and then take a contradictory stance.
The last legal position for the NCAA was a claim of truth.
Scott said that the tortious interference, disparagement, defamation and conspiracy counts should be dismissed for all plaintiffs because “the statements (they) allege were defamatory or disparaging were true or substantially true.”
“The NCAA demands that judgment be entered in its favor and against (p)laintiffs at (p)laintiffs’ cost,” Scott wrote.
The consent decree is no longer in effect. It was repealed as part of a settlement in the lawsuit brought by state Senate Majority Leader Jake Corman against the NCAA and Penn State over enforcement of the $60 million penalty.