Board of Trustees

NCAA rejects duress argument in consent decree fight

If you have five lawyers, you can’t say you didn’t know what you were signing.

That is the latest argument from the NCAA in the ongoing legal battle with state Sen. Jake Corman and Treasurer Rob McCord over the post-Sandusky Penn State sanctions and the consent decree that made them possible.

In a 92-page filing Thursday in Commonwealth Court, NCAA attorney Thomas Scott, of Killian and Gephart LLP in Harrisburg, submitted a motion for partial summary judgment on the grounds that Pennsylvania law provides that “there can be no claim of duress when a party has an opportunity to consult with counsel.”

“Here, Penn State not only had the opportunity to consult with counsel before executing the consent decree, it assembled a team of no fewer than five experienced lawyers with expertise in every area relevant to the university’s decision-making process,” Scott wrote.

Those lawyers were general counsel Stephen Dunham, associate general counsel Frank Guadagnino, commercial litigator Joseph O’Dea Jr. and — from the firm of Lightfoot, Franklin and White LLC — both William King and former NCAA infractions committee chairman Gene Marsh.

Scott submitted a separate 35-page Statement of Undisputed Material Facts detailing their credentials.

“At the end of the day, fully advised by this legal team, the university made the decision it viewed as the best available: it executed the consent decree, choosing speedy resolution and certainty over an opportunity to ‘roll the dice’ and contest sanctions in a multiyear process,” Scott wrote.

Penn State officials signed the document, accepting a $60 million fine that is the starting point of the lawsuit, as Corman and McCord look to the court for enforcement of the state’s Endowment Act, the legislation that would keep the money in Pennsylvania to benefit child sex abuse victims.

The university also agreed to a five-year suspension, a four-year bowl ban, significant restrictions on scholarships and stripping of 111 football wins.

University trustee Anthony Lubrano was not surprised by the NCAA’s claims.

“The NCAA is desperate to avoid further discovery and their statements, including this one, are pure obfuscation. But don’t be deceived. The simple fact is that the NCAA has the culture problem, not Penn State. They lacked the authority to intervene in this matter and they wrote as much.”

Judge Anne Covey has not been a friend to the NCAA with recent orders that cut against it on discovery documents and declining to dismiss the case, choosing to push it toward a January trial to make a decision on the validity of the consent decree.