Pennsylvania suing NCAA over Penn State sanctions. Does it have a case?

Gov. Corbett says the NCAA sanctions against Penn State in the Sandusky case irreparably harm Pennsylvania. One hurdle for the lawsuit: The university did not challenge the punishment.

By MARK GUARINO | The Christian Science Monitor

posted January 2, 2013 at 6:25 pm EST

The state of Pennsylvania announced Wednesday it is taking the National Collegiate Athletic Association (NCAA) to federal court, saying it acted illegally in sanctions imposed against Penn State University following a child abuse scandal that devastated the school’s prestigious football program.

Gov. Tom Corbett (R) said he wants the US District Court in Harrisburg, Pa., to throw out all sanctions the NCAA imposed against Penn State, accusing the organization of trying to illegally benefit from a $60 million fine it imposed against the university in July.

“These punishments threaten to have a devastating, long-lasting and irreparable effect on the state,” Governor Corbett said in a statement released Wednesday. “The only logical conclusion is that the NCAA did it because they benefited from the penalties and because the leadership of the NCAA believed they could. And that’s wrong.”

In June, a jury convicted former Penn State assistant football coach Jerry Sandusky of 45 counts related to the sexual molestation of 10 minors, all male, over a 15-year period. The scandal stretched far beyond Mr. Sandusky and forced both the resignations of several top university officials and the early retirement of Joe Paterno, the university’s beloved football coach, who has since passed away.

According to an independent investigative report conducted by former FBI Director Louis Freeh, Mr. Paterno was involved in concealing Sandusky’s abusive behavior from authorities. The university’s board of trustees hired Mr. Freeh to investigate the university’s handling of the Sandusky accusations.

The NCAA based its sanctions on the Freeh report. Besides the $60 million fine, the NCAA also imposed a four-year ban on bowl games and any post-season play, a reduction in the number of football scholarships from 25 to 15, and the forfeiture of all wins between 1998-2011.

In imposing the sanctions, the NCAA took the unusual step in bypassing its usual policy for investigating possible violations, which can take a year or more. When announcing the sanctions in July, NCAA President Mark Emmert said the Freeh report was “vastly more involved and thorough than any investigation” his organization had ever conducted.

But Corbett asserts that, by relying on the Freeh report and not on its own policies for misconduct, NCAA officials “simply inserted themselves into an issue they had no authority to police and one that was clearly being handled by the justice system.”

Ellen Staurowksy, who teaches sports management at Drexel University’s School of Education in Philadelphia, says the NCAA became vulnerable when it rushed to impose sanctions instead of deliberating with hearings that could bear out what she suggested were excessive sanctions.

“The NCAA overreached and really ought to have had the courts handle this case. There was no NCAA rule that was violated,” Ms. Staurowksy says. “Within their rule structure, there was no violation of athlete eligibility or under the table payments. So if the wrongdoing [in the Sandusky case] did not fall under the purview of the NCAA, then why did they sanction? That is what this case is challenging.”

Where the state might encounter difficulty is proving that the NCAA pressured Penn State President Rodney Erickson into what Corbett says was “silent compliance with its sanctions by threatening to impose even more debilitating sanctions to the football program.” In his complaint, Corbett wants the consent agreement the university signed with the NCAA to be declared illegal.

Mark Conrad, who teaches sports law at Fordham University in New York City, says the university took swift action in signing off with the NCAA actions without challenge, which will make it difficult to suggest they were coerced.

“It seems the university wanted to wash their hands of [the scandal] pretty quickly. I don’t know how [the state] is going to prove they were forced,” Mr. Conrad says.

After the sanctions were announced, Mr. Erickson said they would help usher the university into “a new chapter … in which people are not afraid to speak up, management is not compartmentalized, all are expected to demonstrate the highest ethical standards, and the operating philosophy is open, collegial, and collaborative.”

The NCAA responded to Corbett’s lawsuit Wednesday by issuing a statement from Executive Vice President Donald Remy that described it as “a setback to the university’s efforts” to move past the Sandusky scandal.

“Not only does this forthcoming lawsuit appear to be without merit, it is an affront to all of the victims in this tragedy, lives that were destroyed by the criminal actions of Jerry Sandusky. While the innocence that was stolen can never be restored, Penn State has accepted the consequences for its role and the role of its employees and is moving forward,” Mr. Remy said.

As part of the consent agreement, Penn State agreed that the $60 million fine would be directed into an endowment for programs preventing child sexual abuse or assisting

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