The showdown between state Sen. Jake Corman, R-Benner Township, and Treasurer Rob McCord against the NCAA and Penn State was not meant to be a dragon-slayer. Instead, it started with a much narrower goal.
All the state officials wanted to do was make sure that Pennsylvania victims were protected.
They wanted the state to take custody of the $60 million fine the NCAA levied against the university as part of the package of penalties after the Jerry Sandusky child sex scandal. The NCAA didn’t want that.
“You know the genesis of it, of course, was Jake’s realization that the NCAA had imposed this fine on Penn State and taken $60 million from a taxpayer supported institution without much oversight. It didn’t even seem like it should have gone outside of Pennsylvania at all. Jake wrote to them and they blew him off,” said Corman’s attorney, Matthew Haverstick. “There was scorn from NCAA. They didn’t want to talk to us. They wanted no split other than ‘NCAA gets it all.’ ”
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Corman proposed legislation. The NCAA scoffed. The legislation passed. The NCAA challenged.
“We do not believe this gambit will be successful,” NCAA chief legal officer Donald Remy said in a 2013 statement.
He was wrong.
Haverstick said there was “lots of kind of high-minded talk” from the college sports overseers about “being a national organization that couldn’t be bound by one state’s laws.”
What followed was two years of tug-of-war between Indianapolis and Harrisburg as the state officials sought to have the court enforce the Endowment Act and the NCAA stuck to the idea that it wasn’t legal.
“They were pretty predictable the whole way through and we used that,” said Haverstick.
The NCAA challenged the legislation’s constitutionality. The Commonwealth Court upheld it. They did it again. The court reaffirmed the opinion.
“To my way of thinking, that’s where they screwed up,” Haverstick said.
That was when the court branched out from the original scope of the suit.
“(Their attorneys) alleged the consent decree was a valid contract between Penn State and the NCAA. But the court in the second ruling upheld the statute but said, not only do we believe it is constitutional, but raised questions about whether it was a valid contract,” Haverstick said in an exclusive interview. “That’s when it started to break open. We didn’t expect that. That’s what let us get all the discovery that we did.”
That discovery included an avalanche of email. Haverstick said much of it was not turned over easily. The emails that were released included information that dropped like bombshells into subsequent Corman filings.
Other documents included protracted arguments about attorney-client privilege in which the NCAA was ordered to turn hundreds of pieces over to the court to decide.
“I characterized our approach to PSU as a bluff when talking to Mark (Emmert, NCAA president) yesterday afternoon after the call. He basically agreed b/c I think he understands that if we make this an enforcement issue, we may win the immediate battle but lose the war. ... I think he is okay with that risk,” former NCAA enforcement director Julie Roe wrote in one uncovered passage.
“I know we are banking on the fact (sic) school is so embarrassed they will do anything, but I am not sure about that, and no confidence conference or other members will agree to any of that. This will force the jurisdictional issue that we really don’t have a great answer to that one,” NCAA Vice President Kevin Lennon wrote in another.
The case also took some coordination. Corman and McCord were not the only ones suing the NCAA. So was the estate of longtime football coach Joe Paterno, whose case continues in Centre County court.
As the two cases unfolded, Haverstick said he could tell that some documents were turned over in one case that weren’t in the other. That let the Corman camp know to go back and ask for more documents.
“The sounds of silence are not good,” said then-chairman of the NCAA Executive Committee Ed Ray in an email to Roe on the day the university-commissioned review of the scandal was released. “If Penn State could have Louis Freeh conduct an investigation over the last year, why haven’t we done anything?”
Case takes turn
Not every decision of the court played out exactly the way Corman and McCord wanted, but it is hard to see many that didn’t cut against the defense, especially as the case dragged through 2014.
“We saw Judge (Anne) Covey’s rulings as favorable for us and continued to get more favorable. Our assumption always was she was getting tired of it, that the NCAA was playing games and not taking their obligation seriously.”
In September, after the NCAA rolled back some of the sanctions, including restoring postseason play and giving back some scholarships, they filed a motion asking to have the case dismissed, saying that they agreed to allow the money to stay in Pennsylvania, and Penn State concurred. Corman and McCord didn’t join the motion, but didn’t contest it, leaving it in the hands of the court. Covey said no and set a February trial date.
Corman said he didn’t know that the war was won at that point.
“But that’s when the case took a definite turn,” he said.
The next 14 weeks saw an almost daily flurry of paperwork filed in various courthouses. Haverstick says that behind the scenes, there were a lot of other things happening, too. Negotiation in the case took months, all while some of the most contentious exchanges were happening between the two parties in court filings.
The settlement was finally accepted on Jan. 16, with the consent decree being dissolved and the raft of punishments going away. Penn State’s wins were restored, Paterno was once again the winningest coach in Division I-A history and everything was over, except for one thing. That $60 million was still out there. Under the agreement, $48 million would go to the state endowment, to be used for Pennsylvania child sex victim programs. The other $12 million would be used in a dedicated fund at Penn State for related research and programming.
But what about other money? Who paid for two years of legal fees racked up by a state legislator and treasurer?
According to the attorney, Penn State stepped up to take care of the legal costs as part of the negotiation process to bring the case to a close.
Haverstick could not say just what the fees totaled but said it was comparatively small.
“As the litigation went on, we warned everyone, the commonwealth was not going to pay for this.”
Haverstick said it was also specified that the fees could not come from tuition or taxpayer funds.
Even after the case was over, revelations continued to come out. In February, Corman placed the huge stockpile of material, all of the available discovery in the case, online, with depositions from Emmert, Ray, Remy and others.
“We believed it was in the public interest. The case was conducted by elected officials. It seemed the right thing to do to put it all out there,” said Haverstick. “I hope other universities and colleges and folks who deal with the NCAA see it and it’s useful to them.”
For Haverstick, at the relatively small firm of Conrad O’Brien PC in Harrisburg, the case was a major one.
“It is certainly top three. Right now, I’d say No. 1,” Haverstick said. “It’s not often that anyone, anywhere, gets to take on an organization like the NCAA in circumstances like this and come away happy with how it ended up. I doubt in my lifetime I’ll see another case like this.”
Corman said he always had faith in his representation.
“The Senate had hired Matt in the past. I was confident,” he said. “When the truth is on your side, it doesn’t matter how big the firm is. He was more than up to the task.”