Jerry Sandusky Scandal

Court: Paternos can challenge consent decree

Paterno family attorney Wick Sollers, left, talks with Scott Paterno as they enter the Centre County Courthouse in October 2013 for a hearing. A judge ruled Wednesday that the family can challenge the consent decree.
Paterno family attorney Wick Sollers, left, talks with Scott Paterno as they enter the Centre County Courthouse in October 2013 for a hearing. A judge ruled Wednesday that the family can challenge the consent decree. CDT file photo

A Centre County Court of Common Pleas judgment was posted by the prothonotary’s office Thursday, giving the Paterno family and its co-filers the news they had been waiting for.

“Plaintiffs have standing to challenge the consent decree,” the court documents said.

Judge John Leete’s 39-page decision is based on arguments made earlier this year in the case brought by the Paternos, four members of the Penn State board of trustees, four members of the university faculty, and former football players and coaches against the NCAA and Penn State regarding the consent decree, the contract that led to the historic sanctions against Penn State after the Jerry Sandusky scandal.

The order, dated Wednesday, overrules seven of the NCAA’s objections and sustains three.

“It is also worth noting that this case is unique,” the judge said in his decision. “The alleged harm does not come from an action, duty or relationship resulting from the consent decree, but instead is derived from the language in the document itself. The court finds this distinguishing characteristic alone also warrants plaintiffs standing to challenge the consent decree.”

The court also dismissed the NCAA’s claims that the estate, not being part of the consent decree, cannot contest it.

“To claim the plaintiffs do not have standing to bring suit against NCAA for not following their own rules because NCAA did not follow their own rules is circuitous logic, which the court finds to be contrary to the interest of justice,” the documents claim.

One victory for the NCAA was the dismissal of a number of parties from the suit. Trustees Anthony Lubrano, Ryan McCombie and Adam Taliaferro; former Nittany Lions Anthony Adams, Gerald Cadogan, Shamar Finney, Justin Kurpeikis, Richard Gardner, Josh Gaines, Patrick Mauti, Anwar Phillips and Michael Robinson; and faculty members Peter Bordi, Terry Engelder, Spencer Niles and John O’Donnell were removed.

Scott Paterno was removed in his listing as a “duly appointed representative of the estate and family of Joseph Paterno.” The estate, instead, was directly named as a party.

The NCAA also lost its attempt to quash certain statements as opinions that could be protected against defamation claims. Instead, the court looked to the wording of the consent decree itself, directly quoting passages from the “Findings and Conclusions” section of the document. In one place, the consent decree states what the judge pointed to as “definitive” of the issue: “... the findings of the criminal jury and the Freeh report establish a factual basis from which the NCAA concludes that Penn State breached the standards ...”

“Because the statements at issue are conclusions, as opposed to opinions ... they are not protected,” the decision said.

Other major developments included a list of Penn State’s objections to plaintiff requests for discovery materials being overruled. Key among those was the court’s decision that the university cannot claim that all communications with the Freeh Group International, authors of the commissioned investigation of the incident, can be protected.

“Further, the scope of an attorney-client privilege waiver applies to the subject matter of the privileged documents disclosed. Therefore, voluntary disclosure waives the privilege as to remaining documents of that same subject matter,” Leete said.

The decision cited any documents shared with the Big Ten or NCAA regarding failures in reporting, knowledge of allegations and how those allegations were handled as constituting waiver of privilege.

Other objections, including Penn State’s claims that plaintiff requests were costly, vague, invasive or irrelevant, were overruled. The university won on some claims, such as certain protections of information on arrests and indictments.

The court also agreed that the 3.5 million documents available was too broad of a scope. Plaintiffs were asked to narrow that field to a more reasonable number.

“Today was a very good day for those of us interested in learning the truth,” Lubrano said. “The fact that I have been removed is irrelevant. This has never been about me. This is about due process and the rule of law. My hope is that the plaintiffs in this lawsuit prevail so that the likes of Mark Emmert and the NCAA never again can illegally impose their will on another institution.”

Penn State had no comment on the decision.