Posted on January 2, 2013 by Max Kennerly, Esq.
LITIGATION AND TRIAL: Update: Obviously, there’s been plenty of coverage. See this post at SB Nation, this report at Reuters, and this story at Morning Call, the latter two of which quote me. Others differ on the standing issue (in essence, they assume a State always has standing to challenge any alleged antitrust violation), but most everyone agrees the case is a tough sell. See my comment at SB Nation — even if we begin by assuming the NCAA violated antitrust laws, given the indirect nature of the claim here, Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation.]
I spent plenty of time on this blog discussing Penn State’s civil liability following the Jerry Sandusky abuse scandal, with most of my thoughts in this post. At this point, the Freeh report was rightly damning, and PSU has, as I hoped they would, brought in outside help (Ken Feinberg, the most prominent mediator in the country) to try to resolve the claims.
I didn’t dwell on the consent decree Penn State entered into with the NCAA sanctions — as they say, a deal is a deal, and that’s just as true for a university and an athletic association, except to point out that there was no reason for the NCAA to care that a minority of the Penn State’s Board of Trustees disagreed with the decision to enter into the consent decree. Corporations act through their management, chosen by their Board of Trustees; the thoughts and feelings of a minority of trustees aren’t relevant to anyone dealing with the party…
[T]he sanctions against Penn State do not even ostensibly serve the NCAA’s stated goal of protecting the fairness of intercollegiate athletic competition. Rather, they were taken for the purposes of debilitating a once-powerful football program, enhancing the NCAA’s own reputation, and boosting the competing football programs of cetrain member colleges and universities by removing from competition one of the leading competitors… (more)
IMO, #1. If you accept state money you give implied permission for the state to get into your business. Penn State gets hundreds of millions of taxpayer money annually and has for years. #2 The NCAA went well beyond its stated purpose. If they get away with it there will be no limit to the mischief they can cause. #3 They did not investigate but relied on a 3rd party to do so (Louis Freeh). Is there a political component to this? Of course there is, but if AG Kane picks up the gauntlet for the people of PA, Corbett would have to give up the cause and Kane would show she fights for PA like she said she would .