Pennsylvania should win suit against NCAA "Sandusky" sanctions

The Court should rule in favor of Pennsylvania. The best legal is.. Photo: PA Gov. Tom Corbett seeks to overturn sanctions /AP

WASHINGTON, January 5, 2013 – Pennsylvania, through its Governor, filed a Federal lawsuit against the National Collegiate Athletic Association (NCAA) this past Wednesday, seeking to permanently prevent the NCAA from imposing the sanctions it issued against Pennsylvania State University (Penn State) following the Jerry Sandusky child molestation travesty and the subsequent investigation’s allegations involving University officials.

The lawsuit has sensational legal issues and facts underlying the battle will clearly end up being the subject matter of several movies.

As most of the world knows, Jerry Sandusky, a retired assistant football coach for Penn State (a school that was a giant in NCAA football history), was found guilty of sexually molesting students, including on the premises of the University. 

He was sentenced, effectively, to life in prison.

Criminal investigations took place, and Penn State hired former FBI Director Louis Freeh’s law firm to conduct their own investigation.  Unquestionably, all roads led to complete agreement of horrific conduct, including implications that Penn State personnel and officials lied, conspired, obstructed justice and endangered children for as much as two decades. Results of those investigations asserted they, meaning Penn State officials, knew about the molestation.

These cases against Penn State officials have not yet been brought to trial. The formerly (and still in many circles) beloved football coach, who has since passed, Joe Paterno, was also implicated. The University fired him before he died.

When the Freeh report came out on July 12, 2012, it found no violations of any NCAA rules, or of any conduct traditionally sanctioned by the NCAA.  Nevertheless, the NCAA levied its sanctions, and in so doing talked about a perceived “culture” at Penn State football. 

Penn State consented to the sanctions; there was no choice.

The NCAA’s investigation resulted in some of the harshest sanctions ever levied against a member school.  And therein lies the problem:  The NCAA had absolutely no authority to do anything more than threaten Penn State to fire the individuals found to be involved in the molestation or cover-up. 

NCAA’s President, Mark Emmert, on November 17, 2011, twelve days after the news of the molestation went public, sent a three page letter to Penn State’s President, Rodney Erickson, requesting “information” about what the University knew, what it had done to control, what policies Penn State had in place to monitor, prevent, etc., who the University had identified as being involved, and more.

The stated purpose of the letter was basically a sham, as the letter also set the backdrop to justify actions the NCAA clearly intended to take.  Mr. Emmert recites NCAA Bylaws and admits in his letter that the actions alleged to have occurred in this instance are not specifically listed in the bylaw (referencing Bylaw 10.1).  He then tells Mr. Erickson that it is clear that deceitful and dishonest behavior can be found to be unethical conduct.

The NCAA’s established and longstanding purpose is to assure that student athletes have a “level playing field” and to regulate competition. To that end it appropriately involves itself in matters such as recruiting violations, academic fraud, eligibility issues, and benefits to players.

The lawsuit just filed alleges anti-trust violations. It does a magnificent job of proving, in 84 paragraphs over 42 pages that the Commonwealth of Pennsylvania and the University are now being severely hurt and will be financially devastated for many years because of the NCAA’s sanctions. The lawsuit cites that Pennsylvania citizens and businesses, and community-based programs, which heavily depend upon the football program, will lose jobs and money now and for a term well beyond the sanctions period is over. Box office jobs, concessions staff, ushers, parking attendants, shopkeepers, restaurant staff, housekeepers at local hotels, hotels, and more will lose from the impact of the sanctions which decimated and almost eliminated the football program.

Here is the pertinent language of the Sherman Anti-Trust law that the lawsuit alleges has been violated:  Every … conspiracy, in restraint of trade or commerce among the several States … is declared to be illegal.

The lawsuit alleges that the NCAA and its member institutions conspired to restrain and suppress competition in this matter “as a pretext to impose arbitrary, capricious, and unprecedented sanctions on Penn State for actions wholly unrelated to the mission of the NCAA.

The lawsuit continues:  …”the attack on Penn State threatens to harm competition in the relevant markets by depriving consumers of a robust, well-supported, financially stable state-related university… and eliminating a major competitor in the markets for Division I football players and college football-related apparel and memorabilia.”

Bingo. 

The anti-trust violations are enough for the Court to rule in Pennsylvania’s favor here.   The NCAA, although considered a trade association of competitors, has been determined to be a “person” within the definition of the Sherman Anti-Trust Act and can “conspire.”

In 1984, the Supreme Court, in NCAA v. Board of Regents of University of Oklahoma held that … the (NCAA) television plan violated the Sherman and Clayton Antitrust Acts… The Court said that antitrust laws were designed to prohibit group actions that restrained open competition and trade.

Oklahoma and Georgia Universities sued to force the NCAA to stop its practice of controlling and designating the teams that got onto television.

The Court ruled that the NCAA’s actions were a restraint of trade and held for the universities.

The effects of the sanctions on Penn State are and will be devastating.  That is not the point.

The NCAA’s actions were without foundation, without legal basis even according to its Constitution and Bylaws, and its actions were inconsistent with anything even close to what has been done by them in the past on cases involving significant crimes.  The lawsuit recounts some of NCAA’s history:

1. Failure to do anything following a 2003 Baylor University basketball player murdering another, his coach’s cover up and request to assistants to lie to investigators and the invention of drug selling by the slain victim.

2. Failure to do anything following the 2010 murder of Yeardley Love, a University of Virginia lacrosse player, by her ex-boyfriend, George Huguely, a player on UVA’s men’s lacrosse team, despite allegations that the coaches ignored Huguely’s erratic behavior, multiple alcohol-related arrests and attacks on another female athlete.

3. Failure to do anything following numerous recent rape allegations by University of Montana football players despite the University’s failure to investigate or prosecute.

4. Failure to do anything about recent massive academic fraud, unauthorized grade changes, forged signatures, etc. where 40% of the students enrolled in the affected classes were football and basketball players.

The Court should rule in favor of Pennsylvania. The effect of the sanctions (ridiculously harsh and having no affect on the perpetrators of these horrific crimes) is a good reason to rule for Pennsylvania, but it is not a legal reason. 

A good legal reason to rule for Pennsylvania is the anti-trust violations.  The best legal reason the Court should rule for Pennsylvania is that the NCAA simply had no authority to do what it did.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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