The NCAA says there is no reason for the estate of former Nittany Lions head coach Joe Paterno to subpoena five university presidents to talk about the consent decree.
In a document filed Tuesday, NCAA attorney Thomas Scott, of the law firm Killian and Gephart LLP, of Harrisburg, objected to the deposition subpoenas issued to Hampton University’s William Harvey, Wake Forest University’s Nathan Hatch, University of South Carolina’s Harris Pastides, Utah State’s Stan Albrecht and Michigan State’s Lou Anna Simon. Depositions are scheduled for January.
All five were members of the NCAA’s executive committee when the consent decree was signed. The consent decree is the agreement that allowed for the NCAA’s historic punishment of Penn State in the aftermath of the Jerry Sandusky child sex abuse scandal.
The estate, along with former Penn State trustee Al Clemens and former assistant coaches Bill Kenney and Jay Paterno, are suing the college sports organization and the university, as well as NCAA President Mark Emmert and former executive committee chairman Ed Ray.
For the NCAA, the question is, just what is it being sued for?
In September, Potter County Senior Judge John Leete, specially presiding over the case in Centre County Court, ruled that the estate did not have standing on a breach of contract claim, because the late coach, who died in January 2012 after being fired in November 2011, shortly after Sandusky’s arrest, was not “an involved individual” in the case.
The estate countered by filing an amended complaint, an action the NCAA still opposes as “procedurally improper.” The depositions, they say, are targeted at the consent decree.
“Specifically, the estate has made clear that the focus of its discovery strategy remains on its dismissed and legally deficient contract claim,” Scott wrote.
The NCAA is also named for several other reasons in the case, with the plaintiffs alleging tortious interference, defamation, commercial disparagement and conspiracy. Those, Scott writes, are still valid areas of questioning.
“There is much discovery to be taken on the above-identified allegations,” Scott wrote, adding that the estate “has shown little interest in pursuing its surviving commercial disparagement claim.”
The estate did participate in the deposition of Ray in Corvallis, Ore., on Dec. 8. That deposition was arranged as part of state Senate Majority Leader Jake Corman and Treasurer Rob McCord’s ongoing Commonwealth Court case. Ray requested the joint deposition. According to Scott, the estate’s questions “focused solely” on the contract issue.
“It is now nearly 2015, and well” past “time to move forward with appropriately focused discovery,” Scott wrote, asking the court to decline the subpoenas.