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Does the Paterno lawsuit have legs? A Q&A with NCAA guru John Infante

Penn State Abuse AP

Unless you bypassed both our front page and rumor mill, you know that the Paterno family, as part of a group of plaintiffsannounced its lawsuit against the NCAA last night seeking 1) to overturn the sanctions levied against the Penn State program and 2) compensatory and punitive damages.

“Costas Tonight” spent time last night examining the multiple angles of the fallout of the Jerry Sandusky scandal, including the lawsuit — which you can see HERE – that directly attacks the NCAA’s use of the Freeh Report in its decision to hand Penn State its consent decree.

But does the Paterno family’s suit have a chance to succeed? What will the NCAA’s response be? How will it be impacted by the similar antitrust suit filed by Pennsylvania Gov. Tom Corbett, if at all? To answer these questions, we rang NCAA guru and author at athleticscholarships.net, John Infante. Below is our Q&A.

What are you initial thoughts on the statement released by the Paterno family Wednesday night?
John Infante: It looks to be a similar version of the lawsuit that the Commonwealth of Pennsylvania is filing. While the Paternos are seeking a different recovery than the commonwealth, which appears to be focused on the $60 million fine, the theories in both cases are similar in that there’s some combination of antitrust and [the NCAA] “not following your own rules.” They’re throwing some additional things in there because this is specifically involving Joe Paterno and a defamation claim, but it tracks similarly to the Corbett lawsuit.

In that vein, does the Corbett lawsuit have any influence on the direction of the Paterno family lawsuit?
JI: Certainly, they’re intertwined in that they’re both talking about the same theories, same legal questions. Obviously, if Corbett were to win or lose decisively one way or the other, it would have a big impact on the chances of success of the claims the Paternos are making. And since [the Paternos are] talking about reducing the sanctions — and that’s also a big focus of Corbett’s lawsuit — if the NCAA lost and the sanctions are reduced in that case, or if the NCAA came to some sort of settlement with Pennsylvania, then you remove some of the things the Paternos are asking for in their own lawsuit.

So they are tied together, but there’s enough difference that you wouldn’t combine these two cases into one big case and you wouldn’t necessarily say if Corbett wins or loses then the entire Paterno case is essentially decided for them.

Do you think a settlement is likely?
JI: I would be shocked if a settlement happens at all in either case. People have talked about sanctions potentially being reduced and a couple of people are predicting that as public opinion has shifted, as you’ve had a number of court cases coming, that the pressure will be on the NCAA. The NCAA, with the athletics monitor and the athletics integrity agreement, has an out to reduce the sanctions and that had nothing to do with the lawsuits. So the NCAA could come in and say “Penn State has done such a good job with the athletics integrity agreement that we’re going to reduce the sanctions,” but I think they would do that and then continue to vigorously defend against the lawsuits because they get to the core of the legal underpinnings of the NCAA and how they’re able to do what they do. The NCAA is a private association and all they have to do is follow their own rules, and in cases like this they have an antitrust exemption.

As much as the NCAA would maybe like to get out of the case with a settlement, I don’t think they want to open a precedent of every time they sanction a school, the state government can come in and try to bully them. So I think the NCAA is going to see this process to the end, even if through some other justification they gave the plaintiffs — in one or both cases — what they want.

Speaking of setting a precedence, that was the theme when NCAA President Mark Emmert handed  the consent decree to Penn State last year. It would appear that the crux of the Paterno family lawsuit is that Emmert and the NCAA forced Penn State’s hand. Is that accurate?
JI: Yes, but the basic thing is that the plaintiffs are saying the NCAA didn’t follow their own rules; the NCAA is arguing that they did, except what they’re relying on is a broad, catch-all rule. This is not like the NCAA defending a specific bylaw. This isn’t the Ed O’Bannon case where the NCAA is defending certain elements of amateurism. It’s defending what is the equivalent to the “best interest of baseball clubs” that MLB has. It’s the catch-all rule that the executive committee and board of directors can do what is necessary in the best interest of college sports.

When you get into those broad and expansive clauses that’s where there’s a lot of interpretation. There’s the chance for the plaintiffs — in both cases, in fact — to argue that rule doesn’t mean anything, that you can’t say you’re following a rule, or say you have a rule that claims an organization can do whatever it wants, whenever it wants. That’s going to be the main point of the legal arguments for both Corbett and the Paternos, and it’s also going to be the piece the NCAA is trying to defend because it does give the Association a lot of cover and leeway to take action like they did against Penn State.

Does the fact that Penn State President Rodney Erickson signed the consent decree without consulting the university’s Board of Trustees play a role in the outcome of the Paterno suit?
JI: I don’t think so. The fact that he signed off on the consent decree and the board eventually agreed to it* hurts the two cases. Anything that makes this look less like the NCAA is doing whatever it wants and more like the NCAA and Penn State coming to a plea bargain or settlement is harmful to the cases. It’s one thing to argue that the NCAA went outside of their power to punish one of its members, it’s an entirely different thing to say one of the NCAA’s members and representatives of the rest of the membership agreed to these sanctions. The NCAA would say that if you don’t sign this [consent decree], you’ll face the death penalty and a Committee on Infractions hearing as soon as we can put one together, or as soon as we go do our own investigation. In a way, to the NCAA, that’s negotiating. That’s the stickler of when it came time to hash out this settlement.

The fact that there haven’t been more specific attacks against Erickson is a tactical mistake by Corbett and the Paternos. One of the best arguments is to say that Erickson didn’t have the authority to agree to the consent decree, and this is something that needed to go through the full board of trustees, and there wasn’t enough discussion, and they had never granted him this authority. The fact that there has been no legal attack on that is a mistake. The longer that it’s allowed to go on, the longer that Penn State continues to agree to go along with the consent decree and the integrity agreement, to comply with the sanctions, the harder it’s going to be to argue that you haven’t ratified Erickson’s decision. That would have been the first place to attack, but it appears [the plaintiffs] have let that opportunity go by. Now, it’s going to be hard to come back at this point and make that an essential part of the lawsuit, especially against the NCAA.

In your professional opinion, do you think the NCAA handled the Penn State situation correctly?
JI: If you look broadly at what their options were, they were left to a bunch of bad options. If they had done nothing, they would have been criticized. If we were waiting now, a year on from when they imposed the sanctions, for a criminal trial of the [PSU] administrators to finish for the NCAA to do an investigation, and sanctions are another one, two, three years out even from today — I think that’s a bad look for the NCAA as well.

To say there’s a right answer defies belief, but given what the NCAA chose to do, you can look at ways that process could have been better. If this had been a more open process, and I understand it was a tough time, but if the full board was involved, if there were public discussions about this and it looked more like a settlement than the NCAA coming in with and saying here’s take it or leave it offer, maybe the NCAA would have looked better. It probably wouldn’t have resulted in any less gnashing of the teeth at Penn State, but the process probably would have been over quicker because it would have been during this period of negotiation and settlement. Then, everybody could have had their say, and even if they don’t get their way, they tend to go along with it.

The place for constructive criticism is, having made the decision, how’d you go about bringing it around? I think you can find some areas where the NCAA could have done something different that would have resulted in less backlash even now a year after the penalties were imposed.

(*Clarification: Penn State Board of Trustees board chairwoman Karen Peetz said last year in an email obtained by the AP that it was time to move on from the sanctions handed down onto the program; Outside the Lines reported the board was prepared to ratify the consent decree. However, this did not happen.) 

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20 Responses to “Does the Paterno lawsuit have legs? A Q&A with NCAA guru John Infante”
  1. matt24bucs says: May 30, 2013 12:51 PM

    The paterno’s need to do what pres odumba needs to do—just go away.

  2. cometkazie says: May 30, 2013 1:48 PM

    Good summary.

  3. mogogo1 says: May 30, 2013 2:20 PM

    I was surprised he didn’t go into whether the Paterno family actually has standing to file the suit. The university certainly would since they’re the entity directly involved…the governor’s suit is on behalf of the state on the theory they fund and otherwise have some controls over the university…but the Paterno family? I don’t see where they have standing beyond the possible avenue of defamation, which doesn’t appear to be the main point of the lawsuit.

    JoePa might have had some standing given he worked for the university (though individual employees typically don’t get to sue third parties when their company is legally wronged) but that wouldn’t be inherited by his family after he died.

  4. dietrich43 says: May 30, 2013 3:18 PM

    I think the defamation is strictly related to JoePa. That the family has a big motive to overturn the penalties, or at least have his wins restored, does not help the public perception.

    The NCAA may have overstepped their rules, but they had to do something. I think PSU decided that taking a four year penalty that started immediately, was bettdr than fighging for two or three years, and then probably having at least two years of penalties.

  5. sparky151 says: May 30, 2013 3:33 PM

    There will be a lot of procedural wrangling over the standing issue. The basic Paterno family claim is that the university hung Joe Paterno out to dry by relying on the Freeh report, which they claim is flawed in various ways. I’d expect the suit to survive the summary judgement phase and make it to trial. Given that trial is in Centre county PA, they may just win.

  6. normtide says: May 30, 2013 5:26 PM

    Best case, if the Joe loyalists win, PSU will be the most hated team in all of sports. The effect on recruiting will destroy the program.

    The fact that the university agreed to the terms should end these suits quickly.

  7. fissels says: May 30, 2013 5:46 PM

    Normtide, a little wishful thinking on your part? Plenty of people still respect and like Penn State regardless of what has transpired and what you think. It is still a fine university offering top notch education and athletics. Sure, recruiting will be tough but plenty of players will want to play at Beaver stadium. The program will emerge stronger.

  8. mogogo1 says: May 30, 2013 5:50 PM

    I just don’t see how the Paternos could win without the university being a party to the suit. If I personally am wronged then I can sue who wronged me. But this amounts to some guy living down the street deciding I was wronged and trying to sue on my behalf. Even if he’s correct, he still doesn’t have standing to sue because he wasn’t involved.

    The defamation angle is much easier to understand, though proving that goes WAY beyond unpleasant things about JoePa being said in the report. And it doesn’t help that the guy who actually may have been personally defamed can’t be party to the suit since he’s dead.

  9. tmb333 says: May 30, 2013 6:34 PM

    The Paterno’s should go away. They should sue Penn St. They settled. They commissioned the report that hung joepa. The NCAA acted upon the information the university gave them.

    I hope the NCAA settles with PSU and reducing sanctions slightly but does not reinstate vacated wins or remove any language concerning joepa.

  10. normtide says: May 30, 2013 7:40 PM

    Fissels, not at all. Your recruiting now relies on the fact that PSU accepted its punishment. That hasn’t changed by the way. Right now, your athletic dept and coach have done everything to move on, move forward. But, a politician and a disgraced family with an idiot for a spokesman are doing everything they can to keep PSU chained to a molestation scandal.

    PSU would still get recruits, but only the other BCS league pass overs. Honestly, is it not better to close the book on this part of PSU history?

  11. cometkazie says: May 30, 2013 9:31 PM

    NormTide, that would require common sense, a scarce quality among the litigants.

    Well said, BTW.

  12. rcapre says: May 30, 2013 10:50 PM

    EVERYONE FORGETS THE OBANNON CASE AGAINST NCAA. IF YOU LOOK CLOSELY IT REPRESENTS HOW THIS NON PROFIT OPERATES AND GIVES REASON THAN MORE THAN A LAWSUIT BY JUST THE PATERNO FAMILY. LORD ACTON SAID IT THE BEST, “POWER CORRUPTS, ABSOLUTE POWER CORRUPTS ABSOLUTELY”…..TOO MUCH MONEY FOR NCAA

  13. normtide says: May 30, 2013 10:56 PM

    Your exactly right, just apply that to the PSU coach and admins at the time if those horrible crimes.

  14. dkhhuey says: May 30, 2013 11:00 PM

    Joe Pa knew what was going on, he did nothing about it, and he covered it up until the day he died. His reputation and legacy is rightfully destroyed. This lawsuit will only serve to keep his gross misdeeds in the headlines and further cement his tainted legacy!!!

  15. Slim Charles says: May 31, 2013 7:52 AM

    Can the Paterno family please find jobs?

  16. wglrrsricksan says: May 31, 2013 8:56 AM

    “If you look broadly at what their options were, they were left to a bunch of bad options. If they had done nothing, they would have been criticized. If we were waiting now, a year on from when they imposed the sanctions, for a criminal trial of the [PSU] administrators to finish for the NCAA to do an investigation, and sanctions are another one, two, three years out even from today — I think that’s a bad look for the NCAA as well.” Bad options but some much better than others. Doing nothing was a better option because they could have relied on their own rules and said it was a case for the courts to decide. Or, waiting until the court cases were finished, then applying sanctions would be better because it would give a chance for the “furor” to settle down and then they could proceed with a clear head. Or they could have conducted their own investigation and avoided the pratfalls of the Freeh Report, then they would have had more ammunition to defend their sanctions than they do now. Or perhaps they could have proceeded with sanctions that left Paterno’s legacy intact but punished the program. ANY of those options were better for everyone than the way they actually proceeded.

  17. tvv24l says: May 31, 2013 10:42 AM

    Why did the NCAA act quicker than the US Department of Education? What about the viewpoint that the PSU sex abuse scandal is a USDOE matter, not an NCAA matter? The USDOE has more & clearer policies regarding documenting & reporting alleged on campus & near campus crime than the NCAA does. These policies include; the Clery Act, Title IX, & civil rights laws. USDOE sanctions could be much worse than NCAA sanctions; PSU could lose accreditations, grants, loans, work study payments, research funds, & non-football, non-sports, or academic scholarships. Also, Penn State is not just the State College campus, there are satellite campuses all over Pennsylvania. Was the NCAA only trying to punish the State College campus (where the football program is located), or the State College campus & the satellite campuses as well? Maybe Governor Corbett wants to make sure that the $60 million fine doesn’t hurt the satellite campuses. USDOE sanctions could impact both the State College campus & the satellite campuses. I think that the JoePa wins, football scholarships, & postseason play should be restored, & that the $60 million fine should stay within Pennsylvania, but should be managed by the USDOE, not the NCAA. Because the USDOE has taken its time investigating PSU & has not announced its findings or possible sanctions yet, the USDOE has had the benefit of studying not only the Freeh report, but also the JoePa report as well as the various lawsuits filed by the state of PA, the NCAA, the victims, Mike McQueary, & the JoePa estate. Also, because the USDOE investigation is still ongoing, PSU has had more time to make more changes regarding Clery Act training & compliance (some of those changes are listed in the Freeh report). Because PSU has made such changes, it’s possible, but not guaranteed that the USDOE could mitigate its possible sanctions & thus minimize potential collateral damage. Meanwhile, the US Department of Justice (FBI, US Attorneys, US Postal Service, federal grand juries) as well as state of PA attorneys & grand juries are still investigating Penn State, Jerry Sandusky, & the Second Mile charity. (For example, did Jerry Sandusky use the Internet or the US Postal system to exchange child pornography or entice children? Also, did Sandusky meet or take children across state lines for child molestation?) The state trial of Spanier, Curley, & Schulz has still not taken place as of yet.

  18. 77jdw says: Jun 3, 2013 12:47 PM

    @dietrich43: “I think the defamation is strictly related to JoePa. ”

    Please read the complaint before commenting. Count V (of VI) is titled, “COUNT V: DEFAMATION (All Plaintiffs Except the Estate and Family of Joe Paterno on behalf of Joe Paterno)”

    Notice how they sneaked that troublesome “except” in there? In other words, it applies to everyone EXCEPT Joe Paterno.

    Sorry, but you’ve got it bassackwards.

  19. kjohio says: Jun 12, 2013 11:22 AM

    Where were all you Paterno haters when he was still alive…looking under every rock for 40+ years to find some dirt? First, the sanctions were vindictive and excessive. Second, the issue was not an NCAA issue, it was and is a moral and a legal issue. What if administrators from a school decided to rob a bank, or worse yet, to commit murder, and one happens to be the football coach? Do you sanction the university and the football program? I don’t see how Penn State had any advantage on the football field because Joe Paterno and some administrators allegedly were not forthcoming about a child molestor. Give up the hate already people.

  20. tobeexact says: Jun 17, 2013 11:56 AM

    This is how all the other colleges/universities should look at
    this and defend it . The ncaa has over stepped its boundaries not only in this case but so many others , while also not punishing clear violators of actual ncaa rules.
    They clearly do not hand down punishment on an equal level for the same violations or worse .
    Examples , the usc trojans had one player receive money or genius of some sort and got a three year bowl ban , scholarship reductions , among other punishment .
    Then you have the university of south carolina who violated multiple ncaa rules which involed multiple players, coaches and alumni , and what happened , basically nothing since they claimed we did our own investigation and have implemented new guidelines to insure it doesnt happen again and submitted there own punishment to the ncaa which were basically nothing and they were excepted by the ncaa.
    Mississippi st is another one that just did the same thing , and then you have north carolina who has yet to get punished or oregon and many others.
    Then there is ohio st which got a pretty stiff punishment for some players selling there personal items in exchange for some tatoos are you kidding me, the ncaa is a joke and basically under emmeret does what ever they want.
    And if the sanctions against penn state are aloud to stand whether you like psu or paterno should have no bearing on what the law suits are about , and that is there were no ncaa rules violated what so ever, they were and still are criminal charges. So now the ncaa committee just created another rule that doesnt exist and set its self up to be able to punish any university when ever a player or coach is charged with an individual criminal offense .
    And last but not least look at the syracuse incident which basically has been sweeped under the rug, could it be that mr emmeret is an alumni of the university, and some of the espn reporters which with held the tape from the public
    . That if it came out would have had a major inpacted on there basketball recruiting and a major loss of revenue .
    The miami incident where again they violated their own bylaws again by paying for the attorney.of the booster in order to get info to use against the university.
    The list goes on and on and the ncaa needs to be put in check.

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